BOARD DATE: 28 June 2018 DOCKET NUMBER: AR20170001593 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. 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: 28 June 2018 DOCKET NUMBER: AR20170001593 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 28 June 2018 DOCKET NUMBER: AR20170001593 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 the rank/grade of sergeant (SGT)/E-5 effective 1 February 2008. 2. The applicant states that in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), he was to be promoted upon the completion of punishment imposed because the punishment did not include a reduction in rank. 3. The applicant provides a three-page self-authored statement, dated 7 November 2016, and the following documents arranged chronologically: * Orders 023-09, issued by the 1st Medical Brigade, 13th Corps Support Command, Fort Hood, TX on 23 January 2008 * DA Form 4872 (Certificate of Promotion), issued on 1 February 2008 * five documents pertaining to the applicant's spouse's immigration issues * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * Permanent Orders Number 070-01, issued by the 1st Medical Brigade, Fort Hood, TX on 10 March 2008 * Permanent Orders Number 155-01, issued by the 1st Medical Brigade, Fort Hood, TX on 3 June 2008 * three pages of screen prints related to the applicant's Defense Finance and Accounting Services (DFAS) Master Military Pay Account (MMPA) 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 1 October 2002. 3. A DA Form 4856 (Developmental Counseling Form), dated 5 December 2007, shows the applicant, while serving in the rank and grade of specialist (SPC)/E-4, was counseled by his immediate supervisor for failing to be at his appointed place of duty and for failing to report. 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 6 December 2007, shows an adverse action flag was initiated against the applicant effective 6 December 2007. 5. Orders Number 023-09, issued by the 1st Medical Brigade, 13th Corps Support Command, Fort Hood, TX on 23 January 2008, announced the applicant's promotion to the rank/grade of SGT/E-5 effective 1 February 2008. The order include the following statement: "The promotion is not valid and this order will be revoked if he is not in a promotable status on the effective date of promotion." 6. A DA Form 2627 shows the applicant accepted nonjudicial punishment (NJP) on 4 February 2008, under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place duty on 5 December 2007. He was serving in the rank/grade of SPC/E-4 at the time. His punishment did not include his reduction in rank. 7. Permanent Orders Number 070-01, issued by the 1st Medical Brigade, Fort Hood, TX on 10 March 2008, revoked Order Number 023-09, thereby nullifying the applicant's promotion to SGT. 8. Orders 271-403, issued by Headquarters, U.S. Army Garrison, Fort Wainwright, AK on 28 September 2009, promoted the applicant to the rank/grade of SGT/E-5 effective 1 October 2009. 9. The applicant provides a three-page self-authored statement in which he essentially describes the events that led to his NJP on 4 February 2008. He also provides five documents pertaining to his spouse's immigration issues and three pages of screen prints related to his DFAS MMPA. 10. During the processing of this case, an advisory opinion was obtained from the Department of the Army (DA) Promotions Branch at the U.S. Army Human Resources Command (HRC), Fort Knox, KY. The advisory official recommended denial of the applicant's request and stated: a. The records available to the Junior Enlisted Promotions section show the applicant, then a SPC, was flagged for adverse action effective 6 December 2007. The flag was closed as final-other report on 24 April 2008. b. In accordance with Army Regulation 600-8-19, dated 11 July 2007, subparagraph 1-10j, Soldiers who incur a suspension of favorable action are non-promotable to a higher grade. The applicant was not eligible for promotion to SGT on 1 February 2008. 11. The advisory opinion was provided to the applicant on 6 June 2017, in order to give him the opportunity to rebut the opinion or provide additional comments. He did not reply. REFERENCES: Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. Paragraph 1-10j provides that a Soldier who has incurred suspension of personnel actions is in a non- promotable status. DISCUSSION: 1. The applicant contends his records should be corrected to show he was promoted to the rank/grade of SGT/E-5 effective 1 February 2008. 2. The evidence of record shows a suspension of favorable personnel actions was imposed against the applicant effective 6 December 2007. 3. The DA Promotions Branch confirmed the applicant's suspension of favorable personnel actions was lifted on 24 April 2008. 4. Based on the foregoing, the applicant was not eligible for promotion to SGT on 1 February 2008. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001593 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001593 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2