IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20150003683


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, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20140009146 on 22 October 2014.  Specifically, he requests promotion to the rank/grade of sergeant (SGT)/E-5, presumably effective 1 November 2010.        

2.  The applicant states, in effect, that he met all the requirements to attend the E-5 promotion board, passed the board and stayed out of trouble until December 2010.  He just wants what he earned.  He made the cut-off on 1 November 2010 and wonders why he wasn't promoted.  He wants to be promoted and to be paid all resulting back pay. 	

3.  The applicant provides an undated, two-page Headquarters, Department of the Army (HQDA) Monthly SGT/Staff Sergeant (SSG) Promotion Selection Name List (Selected for 1 November 2010 Promotion) (To Sergeant), a copy of his Enlisted Record Brief (ERB) printed/dated 5 January 2011, and an email dated 18 October 2013.   

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140009146 on 22 October 2014.    

2.  The applicant provides a HQDA Monthly SGT/SSG Promotion Selection Name List, a copy of his ERB printed/dated 5 January 2011, and an email.  It appears this information was not previously considered by the Board; therefore, this new evidence will now be considered.   

3.  The applicant enlisted in the Regular Army on 9 June 2004.

4.  He held military occupational specialty (MOS) 12N (Horizontal Construction Specialist).  He served through multiple reenlistments, in a variety of stateside or overseas assignments including Iraq and Afghanistan, and was promoted to specialist (SPC)/E-4 on 1 June 2006. 

5.  He appears to have been injured in Afghanistan and he was ultimately attached or assigned to the Warrior Transition Battalion at Fort Bragg, NC in or around August 2012.  

6.  He also appears to have undergone disability processing that led to a recommendation by a physical evaluation board to separate him for disability with severance pay. 

7.  Orders 118-0262, issued by Headquarters, U.S. Army Garrison, Fort Bragg, NC on 28 April 2014, ordered his discharge effective 26 June 2014.  The orders listed his rank/grade as SPC/E-4.

8.  He was honorably discharged on 26 June 2014, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, severance pay, combat zone (enhanced).   Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) show his rank/grade as SPC/E-4. 

9.  His most recent ERB, printed/dated 1 July 2014, shows his rank/grade as SPC/E-4 and his date of rank as 20060601.  Section I (Assignment Information) of his ERB does not show he was in a promotable status and there are no entries next to the blocks that read "Promotion Points/Year and Month," "Previous Promotion Points/Year and Month," "Promotion Sequence Number," or "Promotion MOS." 

10.  In the processing of his previous case, on 30 July 2014, an advisory opinion was received from the Promotions Branch at the U.S. Army Human Resources Command (HRC), Fort Knox, KY.  An HRC official recommended disapproval of the applicant's request, and noted:

* the available records show he was on the HQDA by-name promotion list for 1 November 2010
* he had an "Immediate Reenlistment Prohibition" code of "9X," which stands for Other (prohibitions not otherwise identified)
* the system history cannot determine when the 9X code originated; however, it appears it was removed on 10 December 2010
* the unit has deactivated and is unable to provide any supporting documents regarding his promotion issue  

11.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments and/or a rebuttal; however, he did not respond. 

12.  He provides an undated copy of a HQDA Monthly SGT/SSG Promotion Selection Name List (Selected for 1 November 2010 Promotion) (To Sergeant) that includes his name.  It further states that the individuals should contact their Battalion S-1, Personnel Service Battalion or Military Personnel Division to determine if they are qualified for promotion on 1 November 2010. 

13.  He also provides an ERB, printed/dated 5 January 2011, which shows his rank as SPC and his date of rank as 20060601.  

	a.  Section I (Assignment Information) of this ERB shows:
 
* the block that reads "Promotion Points/YRMO (Year and Month)" has the entry "462 / 201007" 
* the block that reads "Previous Promotion Points/YRMO" has the entry "350 / 990812"
* the block that reads "Flag Code" has the entry "KA" and the block that reads "Flag Start Date" has the entry "20101214" and the block that reads "Flag Expiration Date" has no data in it

	b.  Section IV (Personal/Family Data) of this ERB shows the block that reads "APFT (Army Physical Fitness Test) Date P/F Score" has the entry "2010/Passed/220."

14.  Additionally, he provides an email between himself and a Mr. H., presumably the Command Sergeant Major who was in charge of his promotion board.  

	a.  In this email, he asks Mr. H. if the latter remembers him and if he could vouch for him attending the promotion board (date of board unknown) in "KAF" (presumably Kandahar Air Field- Afghanistan).  

	b.  He (the applicant) further states that at the time he wasn't flagged for any reason until 14 December 2010, when he was flagged for failing the run on his APFT and being one percent over the Army's body fat standards.  He passed his run and tape test in February 2011, but for some reason still was not awarded his promotion.

	c.  Mr. H. states he remembers him (the applicant) but not the board proceedings and suggested he seek guidance from his chain of command.  

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system.

	a.  Chapter 3, Semicentralized Promotions (SGT and SSG) governs the promotion system for active Army and Reserve Soldiers.  Table 3-3 provides the eligibility criteria for recommendation for promotion.  It states to SGT:

* a Soldier must be recommended in the Career Progression MOS and must be fully qualified in recommended MOS 
* must have high school diploma, general education development or an associates or higher degree
* must complete resident WLC prior to board appearance, but may be waived for deployed Soldiers
* 34 months time in service (TIS) and 6 months (TIMIG) which is waiverable to 16 months TIS and 4 months TIMIG primary and secondary zones, respectively
* must not be flagged per AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags))
* must be considered physically qualified
* must possess a current passing APFT score in accordance with applicable regulations and field manuals
* cannot be enrolled in the Weight Control Program
* cannot be enrolled in the Army Substance Abuse Program unless a self-referral
* a minimum of 350 points after board appearance

   b.  For Soldiers fully qualified but not recommended, the Battalion (BN) Human Resource (HR) specialist will prepare a DA Form 3355 (Promotion Point Worksheet) and forward it to the first-line leader for appropriate counseling.  Once the counseling is completed, the commander will forward the DA Form 3355 and counseling documents to the promotion authority for final decision.
   
   c.  Once a Soldier has been counseled for not being recommended for promotion, the BN HR specialist will not continue to provide a new DA Form 3355 to the commander.  Copies of the Soldier’s periodic counseling (at least quarterly) will be provided to the promotion authority until the Soldier is recommended for promotion or is no longer eligible.
   
16.  Army Regulation 600-8-2 prescribes that a properly imposed flag prohibits many personnel actions.  Flags for APFT failure block promotion, reenlistment, and extension only.  Flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.

17.  Army Regulation 40-501 (Standards of Medical Fitness) states the inability to perform all APFT events or the use of certain medications is not generally considered sufficient medical rationale to exempt a Soldier from the provisions of Army Regulation 600-9 (The Army Weight Control Program).

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for promotion to sergeant was carefully considered.  

2.  The applicant’s contentions and new supporting documents do not support a basis to over-turn the previous Board's decision.  While the evidence he provides does show he attended a promotion board and was on a promotion list, it still doesn't conclusively show he remained eligible on the date he contends he should have been promoted, which his battalion chain of command had to validate. 

3.  According to the advisory opinion, in which he had an opportunity to submit comments and/or provide a rebuttal and failed to do so, Army records reveal he had a "9X" code (Other, prohibitions not otherwise identified).  It must be presumed that this code still applied to his promotion eligibility status on              1 November 2010 and caused his removal from the promotion list.  Evidence also shows he was flagged with a "KA" code (weight control program) as of       14 December 2014 and it is not determinable when this flag was removed; thereby suggesting he was never boarded for promotion again as he was in a non-promotable status.  Additionally, by his own admission he failed his APFT and was over the standard for weight and failed the body tape test.      
4.  It is understandable that the applicant wants a promotion to a higher rank, one which he feels he has earned; however, this Board is not an investigative body and it must be concluded that he was properly denied promotion in accordance with the regulation in effect at the time.

5.  The Board applauds his military service and commitment to our Nation; unfortunately, in view of the foregoing there is no basis for granting his request.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20140009146, dated 22 October 2014.




      
      _______ _   _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)                                         AR20140009146



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ABCMR Record of Proceedings (cont)                                         AR20150003683



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