IN THE CASE OF:	  

		BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150003271 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his: 

* rank/grade of staff sergeant (SSG)/E-6 vice sergeant (SGT)/E-5
* prior active and inactive service

2.  The applicant states his DD Form 214 does not reflect his correct rank/grade or total years of service.

3.  The applicant provides:

* DD Form 214 for the period ending 4 May 2004
* Orders 03-065-00070
* DD Form 214, ending on 19 August 1995
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard (ARNG) discharge orders
* Retired Reserve orders 
* AHRC Form 249-2-E (Chronological Statement of Retirement Points)

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's records show he enlisted in the Regular Army (RA) on 12 August 1982 and he held military occupational specialty (MOS) 92A (Automated Logistical Specialist).

3.  He served through multiple reenlistments in a variety of assignments and he was promoted to SGT/E-5 on 7 June 1987.  He was honorably discharged from active duty on 19 August 1995.  His DD Form 214 shows he completed 13 years and 8 days of active service. 

4.  In connection with his discharge from the RA, he enlisted in the ARNG on 28 July 1995, to begin on 20 August 1995.  He was honorably discharged from the ARNG on 24 March 1997 and he was transferred to the U.S. Army Reserve (USAR).  His NGB Form 22 credited him with 1 year, 7 months, and 5 days of ARNG/inactive service.

5.  He enlisted in the USAR on 25 March 1997 and he reenlisted in the USAR on 7 September 2002.  He was assigned to the 228th Transportation Company, a troop program unit of the USAR. 

6.  He completed the Motor Transport Operator Course, Phase II, from 14 July to 27 July 2001.  He was awarded primary MOS 88M2O (Motor Transport Operator) on 23 July 2002. 

7.  He entered active duty on 1 February 2003 and subsequently served in Kuwait from 26 March to 9 June 2003 and from 3 to 30 March 2004 and in Iraq from 10 June 2003 to 2 March 2004.  

8.  On 6 March 2003, Headquarters, 81st Regional Support Command, Birmingham, AL published Orders 03-065-00070 advancing him to SSG/E-6 effective 3 March 2003.  The orders stated: 


* this promotion is awarded with the condition that Soldier must be enrolled in and successfully complete the Noncommissioned Officer Education System (NCOES) required for the grade to be promoted
* the Soldier understands and agrees that if he fails to meet the 4 conditions or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a "No-Show," he is subject to reduction to the grade held prior to this promotion
* reduction would be in accordance with Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-12(d)
* the Soldier further understands that if reduced, service performed in the higher grade will not be considered in determining retirement grade, date of rank, or any other determination dependent on the higher grade

9.  There is no indication the applicant met the conditional promotion requirements.  There is no indication he enrolled in, attended, and/or successfully completed the required NCOES course for this promotion. 

10.  On 16 July 2003, the U.S. Army Reserve Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

11.  He was honorably released from active duty on 4 May 2004.  His DD Form 214 for this period of service shows in: 

* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade), SGT and E-5
* Item 12d (Total Prior Active Service), See Block 18 (Remarks)
* Item 12e (Total Prior Inactive Service), See Block 18
* Item 12h (Effective date of Pay Grade), 1987-06-07
* Item 18, Separated from service on temporary records and Soldier's affidavit, DD Form 215 (Correction to DD Form 214) will be issued to provide missing information 

12.  On 27 October 2004, Headquarters, 81st Regional Support Command, published Orders 04-301-0041 transferring him to the Retired Reserve effective 26 November 2004. 

13.  His AHRC Form 249-2-E, dated 16 June 2005 shows he completed 
21 years, 5 months, and 18 days of qualifying service toward non-regular retirement. 

14.  Army Regulation 635-5 (Separation Documents), then in effect, established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states:

* for items 4a and 4b, enter the active duty grade or rank and pay grade at time of separation obtained from the Soldier's records (promotion or reduction orders)
* item 12h shows the effective date of rank 
* item 12d shows the total prior active service
* item 12e shows the total prior inactive service

15.  Army Regulation 140-158 in effect at the time, provided policies and procedures governing the promotion of USAR enlisted Soldiers.  Chapter 8 of this regulation specified the NCOES requirements for each NCO rank.  In pertinent part, it stated an E-6 must be a graduate of Basic NCO Course (BNCOC).        

	a.  Paragraph 8-19 stated that a Soldier may be promoted to sergeant through master sergeant on the condition he or she enroll in and successfully complete the course required for that grade.  If the grade required the Soldier be a graduate of BNCOC, the Soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of BNCOC within 24 months of the Phase I completion date.

	b.  Paragraphs 8-21 and 8-22 provided that a conditionally promoted Soldier will be authorized delayed enrollment in, or completion of a required NCOES course when the Soldier has been approved for such delay in writing by the appropriate authority based on, among other reasons, being ill or injured to a degree that prevents enrollment or course completion.  The Soldier should re-enroll in the course as soon as the reason for delay has been satisfied.

	c.  Paragraph 7-12d stated, in pertinent part, that a Soldier who accepts a promotion with the condition that he/she must enroll in, and successfully complete, a specified NCOES course, and fails to meet these conditions, will be reduced to the rank held prior to the conditional promotion.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's prior active service, the evidence of record shows he previously completed 13 years and 8 days of active service from 12 May 1982 to 19 August 1995.  His DD Form 214 for the period ending 4 May 2004 does not show this service.  

2.  With respect to his prior inactive service, the evidence of record shows he completed 1 year, 7 months, and 5 days of ARNG service from 20 August 1995 to 24 March 1997 and 5 years, 11 months, and 8 days of USAR service from 25 March 1997 to 31 January 2003, for a total of 7 years, 6 months, and 12 days of inactive service.  His DD Form 214 for the period ending on 4 May 2004 does not show this service.  

3.  With respect to his rank/grade: 

	a.  The promotion orders he was issued on 6 March 2003 promoting him to SSG/E-6 effective 3 March 2003 stipulated that he would complete the required NCOES for this grade.  He did not.  His promotion was conditional.  Despite the absence of an order revoking this promotion, the fact remains he did not complete the required NCOES.  

	b.  In the absence of a DA Form 1059 (Service School Academic Evaluation Report), certificate of training, or other documentary evidence confirming completion of the BNCOC, there is insufficient evidence to support changing his DD Form 214 to show his rank/grade as SSG/E-6. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting from item 12d of his DD Form 214, ending on 4 May 2004, the entry "SEE BLOCK # 18" and replacing it with the entry "0013-00-08"
* deleting from item 12e of his DD Form 214, ending on 4 May 2004, the entry "SEE BLOCK # 18" and replacing it with the entry "0007-06-12"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 



denial of so much of the application that pertains to correcting his DD Form 214 for the period ending 4 May 2004, to show his rank/grade as SSG/E-6. 



      _______ _   _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)                                         AR20150003271





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ABCMR Record of Proceedings (cont)                                         AR20150003271



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