BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20150018738 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 BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20150018738 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. BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20150018738 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 correction of his records to show he was promoted to sergeant (SGT/E-5) prior to his disability separation. 2. He states he was wounded in combat and was later medically discharged. Some of his paperwork reflects SGT but most of his records show specialist (SPC). He was not able to update his rank/grade prior to leaving the military due to a family related emergency. 3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Orders 070-001. 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 on 31 March 2004 as a private (PV2) and the highest grade held was SGT. A review of his Enlisted Record Brief shows he was reduced from SGT to SPC on 28 April 2010. 3. His Official Military Personnel File (OMPF) contains a Good Conduct Medal disqualification memorandum, dated 6 April 2011, stating that the applicant received punishment under the Uniform Code of Military Justice on 28 April 2010. He was flagged and began separation proceedings for a positive urinalysis; however, the chapter proceedings were placed on hold pending a medical review. The flag was removed in February 2011. 4. The applicant was honorably discharged in rank of SPC/E-4 on 26 September 2011, by reason of temporary disability. His DD Form 214 shows he was credited with 7 years, 5 months, and 26 days net active service and no lost time. It further shows he served in Iraq and Afghanistan. 5. The applicant provides Orders 070-001, issued by Headquarters, 506th Infantry Regiment, 4th Brigade Combat Team (Currahee), 101st Airborne Division (Air Assault), Fort Campbell, KY, on 22 July 2011, promoting him to SGT, effective 27 September 2011. These orders are not filed in his OMPF. 6. On 21 March 2017, the Chief, Department of the Army Promotions, provided an advisory opinion. He recommended the applicant’s request be denied for the following reasons: a. The records available to the Junior Enlisted Promotion Section indicated that the applicant was Command List Integrated (CLI) with 39 promotion points effective 1 April 2011. Further, his Army Physical Fitness Test (APFT) had expired on November 2010. b. In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 30 April 2010, Table 3-3 (Eligibility Criteria for Recommendation), he was ineligible for promotion recommendation. c. Military Personnel Message 12-309, dated 26 September 2012, subject: Removal of Ineligible Promotable Soldiers (SPC/CPL/SGT) from the Promotion Standing List, announced that over 8,000 Soldiers were erroneously placed on the SGT/SSG promotion standing list. d. The applicant was not in a promotable status prior to separation from the Army. Further, he is not entitled to a promotion in accordance with Army Regulation 600-8-19, paragraph 1-20 (Promotion of Soldier in the Disability Evaluation System). 7. On 27 March 2017, this advisory opinion was mailed to the applicant for comment. He did not respond. REFERENCES: Army Regulation 600-8-19, in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers. It states: a. Soldiers who are pending referral to a physical evaluation board under Army Regulation 635–40 (Physical Evaluation for Retention, Retirement, or Separation) will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion. Soldiers on a promotion list who are retired or discharged for disability will be promoted to the promotion list grade the day prior to discharge or retirement. b. Table 3-3 states a minimum of 350 promotion points are required for promotion to SGT and the Soldier must not be flagged. DISCUSSION: 1. The applicant requests correction of his records to show he was promoted to SGT prior to his disability separation. 2. He was reduced to SPC on 28 April 2010. The promotion orders provided by the applicant show he was promoted to SGT on 27 September 2011; however, according to the advisory official, the applicant was not eligible for promotion. He had insufficient promotion points, an expired APFT, and had been recently flagged and considered for discharge based on a positive urinalysis. All were reasons which would make him ineligible for consideration for promotion. 3. It appears that his promotion to SGT was an error resulting from a systemic problem during the period in question. The applicant was not eligible for promotion in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018738 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018738 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2