IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005841 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, post-service promotion from specialist four (SP4)/E-4 to staff sergeant (SSG)/E-6 in the Regular Army. He additionally requests a personal appearance before the Board. 2. The applicant states, in effect: a. He merits this promotion based upon his past training, experience, and education level. Additionally, he states, in effect: * after completing the Special Forces Qualification Course as a Medical Specialist and award of military occupational specialty (MOS) 18D (Special Operations Medical Sergeant), he was assigned to a Special Forces unit; his total training period was a little over 2 years * upon arriving in his unit, his company first sergeant (1SG) said he would be put in for promotion from SP4 to sergeant (SGT) * a few weeks after the 1SG's recommendation for promotion, his unit began large-scale preparations for a classified mission in Central America * his Team Leader at the time, Captain Mxxx, told him all school and promotions were "frozen" because their preparation took precedence * before deploying to Central America, all SP4s and SGTs were unofficially promoted to SSG * this was done because his higher headquarters indicated military advisors with ranks below SSG would not garner the level of respect needed from foreign officers and foreign Soldiers, and the applicant believes this action was a common practice within the Special Forces; he thus assumed the rank of SSG * for the next 6 months he fulfilled all of the duties and responsibilities commensurate with being a noncommissioned officer (NCO) in the rank of SSG; specifically, he took charge of a 12 to 15-man reconnaissance squad, conducted all instructions in Spanish, and performed his duties under arduous conditions * the entire time he was deployed, he was still being paid as a SP4 b. When he redeployed, he had approximately 1 month remaining on his 3-year enlistment contract. He opted to leave the Army at the end of his enlistment because he: * had already accumulated 22 units of community college coursework, earned prior to his enlistment * had, during his entire 3-year term, he contributed the maximum dollar amount toward his Veterans Education Assistance Program (VEAP) * he wanted to pursue his dream of attaining a 4-year university degree; if he accomplished this, he would be the first to do so in his large working-class family c. He has long since used his VEAP benefits. The funds helped him to earn an Associate's Degree. This achievement encouraged him to continue and he went on to complete his Bachelor's, Master's, and Doctorate (Ph.D.) degrees. He earned his Ph.D. from a prestigious school whose English department has been rated the top in the Nation for the past 20 years. d. Since he left the Army, he has remained a law-abiding, faithful American and patriot. He has excelled as a professor of English and taught thousands of students. He is proud of his service as a Special Forces operator. e. He requests the Board consider the immense amount of training he completed while on active duty as well as his mission-related work. He also asks the Board to take into account his present level of education as well as the fact that he earned his Ph.D. from the highest-rated English curriculum in the country. (1) While on active duty, he embraced the core values of the Special Forces: leadership, discipline, and teamwork. (2) He always maintained himself and his gear in top shape, and was voted by his peers as the most improved Soldier during his training in MOS 18D. f. In making his request, he asks for neither special treatment nor compensation. He is simply asking for what he feels is just. 3. The applicant provides: * high school diploma * Associate in Arts diploma * Bachelor of Arts diploma * Master of Arts diploma * Ph.D. diploma * transcripts * web printout showing U.S. News and World Report Graduate School ratings * photocopy of a picture (dark and hard to distinguish) titled Ph.D. Graduation - English Literature (school - 2010) * letter of support * DD Form 1610 (Request and Authorization for Temporary Duty Travel of Department of Defense Personnel) * DA Form 3286 (Statements for Enlistment - U.S. Army Airborne Enlistment Option) * DA Form 1307 (Individual Jump Record) * certificate of training, dated 1 February 1983 * Honorable Discharge Certificate * photocopy of a picture (dark and hard to distinguish) titled Special Forces (Green Beret) Graduation - Fort Bragg, NC - February 4, 1983; the applicant is identified 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 are not available for review. However, a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) has been provided which offers a basis for addressing the applicant's request. 3. His DD Form 214 shows he enlisted in the Regular Army on 27 January 1981. 4. Based upon reaching the end of his enlistment, he was honorably released from active duty (REFRAD) on 26 January 1984. His DD Form 214 shows he completed 3 years of net active creditable service. a. Item 4a (Grade, Rate, or Rank) shows SP4. Item 4b (Pay Grade) states E-4. b. Item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) shows 91B1S (Medical Specialist with a special qualification identifier for Special Forces). The period he held this MOS was 2 years and 9 months. c. Item 12h (Effective Date of Pay Grade) indicates his date of rank (DOR) for SP4 was 27 January 1983. d. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists: * Expert Marksmanship Qualification Badge with Grenade Bar * Army Service Ribbon * Parachutist Badge * Army Achievement Medal * Good Conduct Medal (1st Award) e. Item 14 (Military Education) indicates he completed the following courses: * Medical Specialist Course, 6 weeks, May 1981 * Emergency Medical Technician Course, 8 weeks, October 1981 * Special Forces Aid-man Course, 19 weeks, April 1982 5. The applicant provides: a. Letter of support from JMB, which states, in summary: * he retired from the U.S. Army Reserve as a master sergeant, but previously served with the applicant in the same Special Forces unit * at that time he was a SGT and the applicant was an SP4; they were roommates * they were deployed for 6 months during the latter half of 1983; while deployed he, the applicant, and others were temporarily promoted to SSG * the promotion to SSG was necessary to convey the suitable degree of authority while training foreign Soldiers * the applicant functioned as a squad leader for a reconnaissance team and led 15 foreign enlisted Soldiers * the applicant performed all duties of a SSG while deployed; on their return the applicant once again assumed the rank of SP4 until he completed his enlistment b. A certificate, dated 1 February 1983, shows the applicant successfully completed the Special Forces Qualification Course during the period 20 September 1982 to 1 February 1983. 6. Army Regulation 600-200 (Personnel General - Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for the management of enlisted personnel. This included enlisted promotions in chapter 7 (Promotions). Within the regulation, there is no provision for a post-service promotion. a. Section III (Promotion to Pay Grades E-5 and E-6) outlined procedures for promotion to these grades. (1) Promotions to E-5 and E-6 were semi-centralized. Soldiers were recommended, went before a promotion selection board, and then promoted by a promotion authority, all at unit level. Headquarters, Department of the Army (HQDA) determined the needs of the Army by grade and MOS. Based on these needs, the promotion point cut-off scores for primary and secondary zone promotions were announced. Zones were defined by time in grade (TIG) as well as time in service (TIS). (2) To be considered eligible, the Soldier had to meet a number of criteria, to include a recommendation by the unit commander and appearance before a unit promotion selection board. These two requirements could not be waived. b. Paragraph 7-32 (Service Remaining Obligation) states, for promotion to SGT/E-5 the Soldier has a remaining service obligation of 3 months. For SSG/E-6 the obligation is 12 months. A waiver could not be granted for this requirement. 7. 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 Army Board for Correction of Military Records (ABCMR). a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. DISCUSSION AND CONCLUSIONS: 1. The applicant requests post-service promotion from SP4 to SSG. He bases his request on a contention his military training, experience, and post-service academic achievements provide sufficient justification to warrant promotion. 2. The applicant's request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. There is no provision within the regulation for granting a post-service promotion. Additionally, while his record is not available for review, the applicant provides no evidence which might indicate he was not promoted as a result of an error or injustice. No proof is offered that he was recommended for promotion by his unit commander, appeared before a promotion selection board, or had accumulated sufficient points to meet HQDA cut-off scores. 4. His DD Form 214 shows he was awarded an Army Achievement Medal at some point during his service and received an Army Good Conduct Medal. Assuming there were no other reasons to be considered non-promotable, these awards would suggest he merited consideration for promotion. Had he remained on active duty, it is reasonable to assume he would have been promoted in due course. He opted instead, however, to pursue his goals as a civilian. 5. Based upon the foregoing, it does not appear he is eligible for granting his 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 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) AR20150005841 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005841 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1