IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150000684 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, retroactive promotion from rank/pay grade sergeant (SGT)/E-5 to staff sergeant (SSG)/E-6 with back pay and allowances.

2.  The applicant states:

* he was recommended for promotion to SSG/E-6 by voting board members on 10 February 1992 and on 25 June 1996
* hospitalizations, medications, and separation from his wife did not allow him to pursue his promotion issue at the time
* he previously submitted a claim for compensation

3.  The applicant provides:

* an unidentified compensation form
* Headquarters, Support Battalion, 59th Ordnance Brigade, memorandum, dated 10 February 1992, subject:  Report of Promotion Board Proceeding for Promotion to Pay Grade E5/E6
* DA Form 3355-1 (U.S. Army Reserve Promotion Point Worksheet)
* three DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER))
* Congressional correspondence


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 19 October 1981.

3.  On 29 January 1992, he requested discharge effective 1 July 1992 under the Special Separation Benefits (SSB) program in effect at the time.

4.  On 30 January 1992, his request for discharge was approved with a recommended separation date of 30 July 1992.

5.  On 24 July 1992, he was honorably discharged in the rank/grade of SGT/E-5 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his narrative reason for separation as Voluntary Early Transition Program (SSB).

6.  On 25 July 1992, the applicant enlisted in the U.S. Army Reserve (USAR) in the rank/pay grade of SGT/E-5.

7.  U.S. Army Reserve Personnel Center Orders F-08-600988, dated 18 August 1993, ordered him to active duty for the purpose of mobilization processing.

8.  A memorandum for record from the applicant's acting sergeant major, dated 10 July 1996, stated the applicant would be returning on 10 July 1996 and would report for duty on 11 July 1996.  The applicant was allowed a 3-day pass from 
12-14 July 1996 and would be present for duty on 15 July 1996.

9.  On 10 July 1996, the Commander, 330th Rear Tactical Operations Center (Forward), faxed a letter of reprimand to the 330th Rear Tactical Operations Center (Rear) leadership with specific instructions in administering the reprimand to the applicant and directing that the applicant remain under the closest of supervision with his whereabouts known at all times.

10.  On 11 July 1996, the applicant received a letter of reprimand for improper conduct on or about 8 and 9 July 1996.  The letter of reprimand stated:

* he was insubordinate with his NCO in charge (NCOIC)
* his conduct had been disruptive and questionable throughout his deployment and was documented

11.  A memorandum for record from the applicant's acting sergeant major, dated 12 July 1996, stated:

* the applicant was directed to obtain permission from the senior NCO present and the officer in charge prior to departing from his place of duty
* the applicant was directed to keep them informed of his whereabouts and actions at all times
* the applicant was advised that proceedings under Article 15, Uniform Code of Military Justice, would be initiated if he failed to comply with his instructions
* the applicant had been counseled in the past for failing to repair and for communicating a threat to an NCO
* the applicant acknowledged he understood his orders and he indicated he would comply with the orders

12.  A sworn statement from the applicant's NCOIC, dated 12 July 1996, stated:

* on 11 July 1996, he directed another NCO to accompany the applicant and another Solider to retrieve their cars from storage and to return to the unit afterward
* the NCO returned to the unit
* the applicant and the other Soldier failed to return to the unit
* the NCO advised the NCOIC that the applicant was picking up his mail and proceeding to his residence and the other Soldier had issues with his car
* the NCOIC left a note on the unit's door directing the applicant and the other Soldier to report to him prior to departing on their 3-day pass and for the applicant to report to work at 0800 hours on 12 July 1996
* the NCOIC tried numerous times to contact the applicant on 11 and 12 July 1996 to no avail

13.  On 18 July 1996, the applicant provided a sworn statement indicating the NCOIC informed him and another Solider that they were released until Monday after retrieving their cars and there were no other instructions given.

14.  On 23 July 1996, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for:

* failing to go to his appointed place of duty at the prescribed time on or about 11 July 1996
* failing to obey the order of an NCO on or about 11 July 1996
* failing to obey the order of his superior commissioned officer on or about 11 July 1996

15.  U.S. Army Europe Orders 309-01, dated 5 November 1999, directed the applicant's discharge effective 9 December 1999.  On 13 March 2000, these orders were revoked.

16.  His records are void of orders releasing him from active duty in 1999.

17.  On 5 December 2000, the applicant was ordered to active duty for the purpose of an active duty medical extension.

18.  U.S. Army Physical Disability Agency Orders D146-1, dated 27 July 2001, released him from assignment and duty due to a disability and placed him on the Temporary Disability Retired List (TDRL) effective 8 September 2001 in the rank/grade of SGT/E-5.

19.  The applicant provided Congressional correspondence, an unidentified compensation form, and:

	a.  page 1 of a memorandum to the Commander, 381st Personnel Service Company, dated 10 February 1992, subject:  Report of Promotion Board Proceeding for Promotion to Pay Grade E5/E6, which shows he was considered and recommended for promotion to SSG/E-6;

	b.  a DA Form 3355-1, dated 25 June 1996, that shows he met promotion criteria to the rank/grade of SSG/E-6; and

	c.  NCOERs for the periods ending July 1990, June 1992, and August 1996 that show his rank as SGT.

20.  His records are void of and he failed to provide orders promoting him to the rank/grade of SSG/E-6.

21.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures governing promotions and reductions of Army enlisted personnel.

	a.  Chapter 3 contained guidance on managing semi-centralized promotions to SGT/E-5 and SSG/E-6.  Soldiers who signed a Declination of Continued Service Statement or were released from active duty were removed from a local promotion standing list.

	b.  Paragraph 1-21 stated Soldiers would be referred to a Standby Advisory Board for consideration if they returned to active duty from the TDRL and had been in an announced zone of consideration for promotion while on the TDRL.  The Soldiers would be promoted to the higher grade if selected.

	c.  Soldiers on a promotion list at the time of retirement for disability would be retired for disability at the promotion list grade.  Further, the Soldiers would be promoted to the designated grade effective the day before placement on the Retired List.

	d.  Soldiers were in a non-promotable status to the next higher grade when they had received letters of admonishment, censure, or reprimand not administered as nonjudicial punishment.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was recommended for promotion to the rank/grade of SSG/E-6 on 10 February 1992.  However, his records are void of and he failed to provide any orders promoting him prior to his voluntary separation on 24 July 1992.

2.  By law and regulation, Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade.  Although he provides a promotion worksheet showing he met promotion criteria on 25 June 1996, there is no evidence of record that he was ever promoted on that date, or that he was promotable or on a valid promotion list at the time he was placed on the TDRL.

3.  His promotion point worksheet was published more than 4 years before he was retired for disability, and presumably almost as long before his disability processing was initiated.  He provided no evidence (such as an Inspector General inquiry) to show why he was not promoted on that date or that denial of promotion on that date was improper.

4.  In view of the aforementioned evidence, there is an insufficient basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _____________X____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150000684



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ABCMR Record of Proceedings (cont)                                         AR20150000684



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