IN THE CASE OF: BOARD DATE: 28 October 2010 DOCKET NUMBER: AR20100011832 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 his retirement rank be changed to sergeant major instead of master sergeant. 2. The applicant states he held the position of sergeant major more than 2 years after his promotion. 3. The applicant provides promotion orders in support of his application. 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. Having prior service in the Regular Army and Army National Guard, the applicant enlisted in the U.S. Army Reserve (USAR) on 6 May 1990. 3. On 29 August 2001, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter). 4. Orders show the applicant was promoted to sergeant major effective 1 September 2001. These orders also state, in pertinent part, that “This promotion is awarded with the condition the Soldier must be enrolled in, and successfully complete, the NCOES [Noncommissioned Officer Education System] course required for the grade to which promoted. The Soldier understands and agrees that if he or she fails to meet these conditions, or is subsequently denied enrollment, or becomes an academic failure and does not meet graduation requirements, or is declared a No-show, the Soldier is subject to reduction under AR [Army Regulation] 140-158, paragraph 7-12d, to the grade and rank held prior to this promotion. 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 determinations dependent on the higher grade." 5. Orders, dated 19 May 2004, show the applicant was reduced from sergeant major to master sergeant effective 18 May 2004 under the provisions of Army Regulation 140-158, paragraph 7-12(d-g). 6. A DA Form 1059 (Service School Academic Evaluation Report), dated 21 May 2004, shows the applicant was disenrolled from the U.S. Army Sergeants Major Course due to retirement. 7. On 17 June 2004, the applicant was assigned to the Retired Reserve in the rank of master sergeant. 8. Army Regulation 140-158 (Army Reserve/Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policies and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted Soldiers of the USAR. Paragraph 1-14v of this regulation states that a Soldier will not be advanced or promoted as long as he or she is not a graduate of the NCOES course required for his or her current grade. Paragraph 7-12d (failure to meet conditional promotion NCOES requirements) of this regulation states that a Soldier who accepts a promotion with the condition that he or she must enroll in, and successfully complete, a specified NCOES course, and fails to meet those conditions, or is subsequently denied enrollment, or becomes an academic failure, or does not meet graduation requirements, or is declared a “No-Show,” will be reduced to the grade and rank held prior to the conditional promotion. 9. Paragraph 8-2a of Army Regulation 140-158 states that a Soldier must be a U.S. Army Sergeants Major Course graduate to be eligible for promotion to sergeant major. DISCUSSION AND CONCLUSIONS: The applicant’s contention was carefully considered. However, his promotion to sergeant major was contingent upon him completing the U.S. Army Sergeants Major Course. His promotion effective date was 1 September 2001. He was dismissed from the U.S. Army Sergeants Major Course due to retirement on 21 May 2004 and he was assigned to the Retired Reserve effective 17 June 2004. Therefore, he did not fulfill his promotion obligation to retain the rank of sergeant major and orders show he was properly reduced to master sergeant on 18 May 2004. Therefore, there is an insufficient basis for granting the applicant's 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 that 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) AR20100011832 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100011832 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1