IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150013811 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: 29 November 2016 DOCKET NUMBER: AR20150013811 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 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. IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150013811 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 May 2004 and his retirement orders be corrected to show his rank as sergeant first class (SFC)/pay grade E-7. 2. The applicant provided no statement in support of his application. 3. The applicant provides: * two lists showing his name * Senior Enlisted By-name Promotions for April 2003 from the U.S. Total Army Personnel Command (PERSCOM) website * Out-Processing Checklist for Coalition Forces Land Component Commander, dated 26 August 2003 * three letters from Headquarters (HQ), Division Artillery, 101st Airborne Division (Air Assault), Fort Campbell, KY * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period December 2002 - October 2003 * Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES) from March - June 2003, August 2003, and November 2003 * DD Form 2656 (Data for Payment of Retired Personnel), dated 13 November 2003 * HQ, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, Orders 013-0069, dated 13 January 2004 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. On 16 May 1984, the applicant enlisted in the Regular Army. He served continuously until the date of his retirement. 3. On 1 May 1996, the applicant was promoted to staff sergeant (SSG)/pay grade E6. 4. On 9 July 2002, he reenlisted for an indefinite term. 5. The applicant's LES for the period 1 - 31 March 2003 shows he was paid in pay grade E6. 6. PERSCOM Order Number 71-33, dated 12 March 2003, promoted the applicant to SFC with an effective date of 1 April 2003. 7. The applicant's LESs for the April 2003, May 2003, June 2003, August 2003, and November 2003 show he was paid in pay grade E7. 8. The applicant's NCOER for the period 12 December 2002- October 2003 indicates he was evaluated as an SFC. 9. The applicant's DD Form 2656, dated 13 November 2003, shows his rank and pay grade as SFC/E7. 10. On 8 December 2003, the U.S. Army Human Resources Command (HRC) notified the applicant that although he had been considered and selected for promotion, his name had been administratively removed from the list. The basis for removal was the applicant's approved retirement date. 11. HRC Order Number 342-2, dated 8 December 2003, revoked that portion of PERSCOM Order Number 71-33, dated 12 March 2003, pertaining to the promotion of the applicant. The authority was shown as Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 1-17. 12. On 31 May 2004, he was retired and placed on the Retired List the following day. He was 40 years of age at the time of his retirement. He completed 20 years and 15 days of active service. a. HQ, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, Orders 013-0069, dated 13 January 2004, shows his: * Effective date of retirement: 31 May 2004 * Retired grade of rank: SSG * Current grade effective date: 1 May 1996 b. The applicant's DD Form 214 with a separation date of 31 May 2004, shows in: * Item 4a (Grade, Rate, or Rank) - SSG * Item 4b (Pay Grade) - E6 * Item 12h (Effective Date of Pay Grade - 1 May 1996 REFERENCES: 1. AR 600-8-19, in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system. a. Paragraph 1-17 stated instruments announcing erroneous promotions would be revoked. When a Soldier was erroneously promoted, and had received pay at the higher grade, a determination of de facto status was made only to allow the Soldier to keep the pay and allowances received at the higher grade. b. Paragraph 4-8a stated Soldiers promoted to grades SFC would incur a 2-year service requirement. The service requirement was from the effective date of promotion, unless the Soldiers were in one of the following categories: * eligible for retirement based on RCP for the recommended grade * already eligible through prior service for a higher grade at time of retirement * age 55 or older 2. AR 601-280 (Army Retention Program), in effect at the time, set forth policies and command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army. a. Table 3-1 (Retention control points) indicated the RCP for SFC was 22 years. b. Paragraph 3-16 stated Soldiers on indefinite status will be allowed to serve until the applicable RCP for their rank. If promoted, the Soldier is then permitted to serve to the RCP for their new rank. DISCUSSION: 1. At the time of promotion the applicant incurred a 2-year service requirement (until 1 April 2005). Based on his date of enlistment, he would have reached his RCP on 16 May 2006. 2. The applicant was not eligible for a higher grade through prior service at the time of his retirement. 3. He was not age 55 or older at the time of retirement. 4. The applicant's promotion orders were revoked on 8 December 2003 based on his approved retirement date. At the time of retirement he had not completed the 2-year service requirement for promotion to SFC. 5. When a Soldier was erroneously promoted and had received pay at the higher grade, a determination of de facto status was made only to allow the Soldier to keep the pay and allowances received at the higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013811 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013811 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2