BOARD DATE: 5 August 2010 DOCKET NUMBER: AR20090020624 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 that his records be corrected to show that he was promoted to the rank of sergeant/pay grade E-5 in April or May 2003. 2. The applicant states he was a good Soldier who never suffered any disciplinary actions. While in Iraq he attended the promotion board and "maxed out" every category. He goes on to state that orders came down 1 month later saying he had been promoted to sergeant, which was in April or May 2003. He further states he was a stellar Soldier who served in E-6 positions, he was injured in Iraq and remained there despite his injuries, and he deserves the promotion. 3. The applicant provides copies of: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * one page of a DA Form 3355 (Promotion Points Worksheet), dated 7 January 2003 * his college transcript * his DA Form 705 (Army Physical Fitness Test Scorecard) * his DA Form 3595-R (Record Fire Scorecard) * five certificates ranging from achievement, awards, training, and participation * an alert roster 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 in Raleigh, North Carolina, in pay grade E-4 on 26 April 2001 for a period of 3 years, training as an infantryman, assignment to the 82d Airborne Division, a cash enlistment bonus, and participation in the student loan repayment program. 3. He completed his training at Fort Benning, Georgia, and was transferred to Fort Bragg, North Carolina, for assignment to the 3d Battalion, 325th Infantry Battalion. 4. He deployed to Iraq from 14 February 2003 to 5 September 2003 and returned to Fort Bragg. 5. On 25 April 2004, he was honorably released from active duty in pay grade E-4. He served 3 years of total active service. 6. A review of his records failed to show any indication the applicant had been integrated into the promotion standing list or that he was in a promotable status. Also, there are no orders in his official records promoting him to pay grade E-5. 7. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command Office of Promotions. Officials at the Enlisted Promotion Branch opine that the applicant submitted insufficient information with which to determine that he should have been promoted to pay grade E-5. 8. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. DISCUSSION AND CONCLUSIONS: 1. While the sincerity of the applicant's claim that he was issued orders promoting him to the rank of sergeant in April or May 2003 is not in doubt, he failed to provide a copy of those orders or sufficient proof to show he was integrated on the promotion standing list and that he met the Department of the Army cut-off score for promotion. 2. Therefore, in the absence of evidence to establish he met the announced cut-off score for promotion and that he was deemed fully qualified for promotion at the time, there appears to be no basis to approve his request at this time. 3. It is also noted that the applicant claims he was promoted to the rank of sergeant in April or May 2003 while in Iraq. He did not depart Iraq until September 2003 and returned to Fort Bragg where he remained until he was released from active duty in pay grade E-4 in April 2004. His records do not contain an enlisted evaluation report showing he served in pay grade E-5. Additionally, he signed all of his separation documents that indicate he was serving in pay grade E-4. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms. ___________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) AR20090020624 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090020624 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1