IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012330 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012330 BOARD DETERMINATION/RECOMMENDATION: 1. 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 for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices he made during his service to our Nation. The applicant and all Americans can 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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150012330 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 reinstatement of his promotion to sergeant first class (SFC)/E-7. 2. The applicant states, in effect: * he was promoted to SFC on 1 August 2006 while serving on active duty in the Regular Army; at that time he had 22 months of remaining service on his second enlistment * he required 24 months of service in order to keep his promotion * he was granted custodial parent for his two sons, and needed to be there for his children; he felt another enlistment would not have been in their best interests * he considered many approaches to stay in the Army, but the cost would have been substantial for a single parent household responsible for the care of two children (this was in the context of being part of the Special Operations community) * he was told he was not eligible to extend for an additional 2 months * he relinquished his rank of SFC on 27 September 2006 * he never left his roots, and is employed at a Naval Warfare Center; he works side-by-side with many of his brothers and sisters with whom he previously served * leaving behind this one last accomplishment from his military service (promotion to SFC) has troubled him; he feels his situation warrants giving him the ability to say he left the Army as an SFC * he does not make this request for financial gain, and seeks no reimbursement should his request be favorably considered 3. The applicant provides: * letter to Congressional representative, dated 9 June 2015 * letter to his Congressional representative from the Army Review Boards Agency, dated 28 June 2015 * response from Congressional representative, dated 7 July 2015 * Orders Number 194-35, dated 13 July 2006 * Promotion Certificate, dated 1 August 2006 * memorandum for record, dated 27 September 2006, Subject: Relinquishing of Rank * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 December 2007 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 was born on 6 November 1975. 3. The applicant enlisted in the Regular Army on 29 September 1999. He served continuously on active duty, and rose to the rank/grade of staff sergeant (SSG)/E-6. His military occupational specialty was 18B (Special Forces Weapons Sergeant). 4. Orders Number 194-35, dated 13 July 2006, issued by the U.S. Army Human Resources Command (HRC), promoted him to SFC effective 1 August 2006. On this order it states, "Acceptance of promotion constitutes acceptance of the 2-year service remaining requirement from the effective date of promotion." 5. The applicant provides a memorandum for record, dated 27 September 2006, Subject: Relinquishing of Rank, that essentially stated he was promoted to SFC on 1 August 2006, but did not have sufficient remaining service to meet the 2-year requirement to retain the promotion. He cited family issues as the basis for declining the promotion. 6. Orders Number 276-1, dated 3 October 2006, issued by HRC, revoked his promotion to SFC. 7. He was honorably discharged on 5 December 2007. His DD Form 214 shows he completed 8 years, 2 months, and 7 days of net active creditable service. His rank/grade is listed as SSG/E-6 with an effective date of 1 October 2003. a. He was awarded or authorized: * Bronze Star Medal * Army Commendation Medal with "V" Device and 2nd Award * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Service Ribbon * Combat Infantryman Badge * Special Forces Tab * Ranger Tab * Parachutist Badge * Air Assault Badge * overseas service bar (2nd Award) b. He deployed twice to Iraq (from 19 August to 1 December 2004 and from 16 May to 30 December 2005, respectively). 8. In an advisory opinion, dated 6 April 2016, an official from HRC stated administrative relief was not authorized. a. Records available to the Senior Enlisted Promotion section indicate on 13 July 2006, a promotion order was issued promoting him to SFC effective 1 August 2006. b. On 27 September 2006, he declined his promotion because he was not able to meet the 2-year service requirement as outlined in Army Regulation (AR) 600-8-19 (Personnel General - Enlisted Promotions and Reductions), paragraph 4-8 (Service Requirement), (regulation date 1 May 2000). c. On 3 October 2006, the promotion order was revoked based on his declination statement. Paragraph 1-24 (Declination of Promotion), AR 600-8-19, states in subparagraph f, once received by the promotion authority, the declination is irrevocable. 9. The Case Management Division, Army Review Boards Agency, provided a copy of the advisory opinion to the applicant for review and comment. He did not submit a response. REFERENCES: AR 600-8-19, in effect at the time, states in paragraph 4-8, Soldiers promoted to the ranks of SFC and above incur a 2-year service requirement. a. The service requirement becomes effective the date of promotion, unless the Soldier is in one of the following categories: * eligible for retirement based on retention control point for the recommended grade * already eligible through prior service for a higher grade at time of retirement * age 55 or older b. Once declined, such declination of promotion is irrevocable. DISCUSSION: 1. The applicant requests reinstatement of his promotion to SFC. a. He was promoted on 1 August 2006, and his promotion order clearly stated his acceptance came with a 2-year service requirement. b. On 27 September 2006, he notified the promotion authority (HRC) that he did not have sufficient remaining service to fulfill the 2-year requirement. He declined his promotion to SFC, and HRC revoked his promotion on 6 October 2006. 2. The regulation in effect at the time permitted Soldiers to retain their promotion to SFC or above under specific circumstances, involving either retirement eligibility, or being age 55 or older. None of these exceptions applied to the applicant when he was promoted to SFC (he had a little over 8 years total active service, and will not be 55 years of age until 2030). This regulation further stated, once declined, such a declination of promotion was irrevocable. The regulation clearly shows administrative relief is not warranted in this case because the evidence presented by the applicant clearly shows he would not commit to the voluntary service obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012330 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012330 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2