ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170008659 APPLICANT REQUESTS: * his promotion to the rank/pay grade of sergeant (SGT)/E-5 be backdated to any date between 26 May 2016 and 31 January 2017 * entitlement to back pay for pay grade E-4 starting 26 May 2016 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U.S. Marine Corps (USMC) FA Fire Controlman Course diploma * Airborne Course diploma * USMC Corporal (CPL)/E-4 promotion * USMC discharge orders * Career Retirement Points Credit Report * Associate in Arts (AA) diploma * US. Coast Guard (USCG) Honorable Discharge Certificate and orders * DD Form 4/1 (Enlistment/Reenlistment Document (Armed Forces of the United States) * five Leave and Earnings Statement (LES’s) * Structured Self-Development – Level I training certificate * 11B10 Military Occupational Specialty (MOS) T training certificate * Enlisted Record Brief (ERB) * DA Form 1559 (Inspector General (IG) Action Request) and continuation sheet FACTS: 1. The applicant states: a. He enlisted in the California Army National Guard (CAARNG) on 28 May 2015, in the rank/pay grade of CPL/E-4 (as stated on his enlistment contract). However, he received pay in the rank/pay grade of Private First Class (PFC)/E-3 (breach of contract). He immediately notified his chain of command and several months later he was told he had been mistakenly “miscoded” and received a made-up and backdated E-3 to E-4 promotion date of both 1 November 2015 and 17 December 2015. He had never been an Army E-3 and this was a breach of contract. Not only did this result in him receiving less pay than he should had, but more importantly, he lost his E-5 promotion eligibility and career progression. b. He had not been an E-3 since before being promoted in the USMC to a Petty Officer 3rd Class/E-4. He was honorably discharged from the USCG as an E-4 on 22 March 1996, giving him over 53 prior service months as an E-4. He should also have 19 months as an ARNG E-4. As for the E-5 promotion eligibility, he is infantry, fire direction control and airborne qualified with a 289 Army Physical Fitness Test score, and expert qualified for the rifle and pistol. He also has completed the Structured Development – Level 1 Course and he has an AA degree. He submitted an IG Action Request on 7 April 2016 and over 11 months later there has been no resolution. 2. The applicant provides the following: * USMC FA Fire Controlman Course diploma, dated 8 August 1989 * Airborne Course diploma, dated 9 February 1991 * USMC CPL/E-4 promotion, showing he was promoted on 1 October 1991 * USMC discharge orders, dated 3 April 1992, showing he was honorably discharged on 22 March 1993, to immediately reenlist in the USCG; the orders show his rank as CPL * Career Retirement Points Credit Report, dated 18 June 1992, showing he earned a total of 174 points from 12 February 1988 to 22 March 1992 * AA diploma, dated 30 December 1994 * USCG Honorable Discharge Certificate, dated 22 March 1996 and orders, dated 16 April 1996; the certificate and orders show his rank as Gunner’s Mate Third Class * DD Form 4/1 showing he enlisted in the CAARNG, in pay grade E-4, on 26 May 2015 * five LES’s, dated 8 and 24 July, 19 August, 10 October, and 25 November 2015, showing he received pay and allowances as an E-3 * Structured Self-Development – Level I training certificate, dated 2 March 2016 * 11B10 MOS T training certificate, dated 5 March 2016 * ERB, dated 4 April 2016 * DA Form 1559, dated 7 April 2016, wherein he requested pay and back pay as an E-4, restoration of his E-4 date of rank (DOR), and restoration of his time in grade/promotable status 3. Review of the applicant’s service record shows: a. Having had prior USMC Reserve and USCG Reserve enlisted service, he enlisted in the CAARNG for 3 years on 26 May 2015. His DD Form 4/1 shows he was enlisted in the pay grade of E-4. b. He was assigned to Headquarter and Headquarters Company, 1st battalion, 160th Infantry, CAARNG, Inglewood, CA., c. A DA Form 4187 (Personnel Action), dated 19 February 2016, shows he was advanced to specialist (SPC)/E-4 in the ARNG, with an effective date and DOR of 17 December 2015. The form shows his current DOR as 26 May 2016 and current grade/rank as E-3/PFC. The authority for the promotion is Army Regulation (AR) 600-8-19 (Personnel – General – Enlisted Promotions and Reductions). d. He reenlisted in the CAARNG on 1 February 2017. His DD Form 4/1 shows he reenlisted in pay grade E-4. e. There is no evidence in his records and he did not provide any to show he appeared before the SGT semi-centralized promotion board ta the battalion level or that he was recommended for promotion to E-5 or that he met the cut-off scores for his particular military occupational specialty or that The Adjutant General published orders promoting him in the State of California. f. His National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably discharged from the CAARRN on 31 January 2017. He completed 1 year, 8 months, and 5 days of net service. This form also shows in: * Item 5a (Rank) – SPC * Item 5b (Pay Grade) – E-4 * Item 6 (Date of Rank) – 17 December 2015 g. Orders Number 98-1000, issued by the CAARNG on 8 April 2017, announced his honorable discharge effective 31 January 2017. The orders show his rank as SPC. 4. By regulation (AR 600-8-19), promotion in the ARNG is a function of the State. The DOR for promotion to a higher rank was the date specified in the promotion instrument or, when no date was specified, was the date of the instrument of promotion. The DOR in all other cases would be established as governed by appropriate regulation. Promotion to SPC would be 24 months time in service and 6 months time in grade. Promotion to sergeant through sergeant major are announced in orders and would cite the appropriate paragraph of this chapter for promotion. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found some relief was warranted. The applicant’s contentions were carefully considered. His DD Form 4 shows enlisted in the CAARNG at the grade of E4 on 26 May 2015. His record is absent information showing a reduction action. The Board agreed there is sufficient evidence that shows he contracted to join at that grade; however, he was paid at the grade of E3. The Board also agreed there is no guarantee that he would have been promoted to the grade of E5 by being eligible to appear before a promotion board within his requested time frame; the promotion was not automatic for time in grade. Therefore, the Board denies this portion of the requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his date of rank and effective date of promotion to E4 to show 26 May 2015. Such relief should result in the payment of the difference in pay and entitlements he received for an E3 through 17 December 2015. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to promoting him to SGT. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-19 (Personnel General – Enlisted Promotions and Reductions), in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system. Chapter 7 of the regulation prescribed policies, procedures, and systems to advance, promote, laterally appoint, and administratively reduction of all Army National Guard (ARNG) and ARNG of the United States enlisted Soldiers, except those included in the end strength of the Regular Army (RA) and who were covered by the RA promotion system. The regulation stated in: a. Paragraph 1-3 (Date of rank (DOR) and effective date) – the DOR for promotion to a higher rank was the date specified in the promotion instrument or, when no date was specified, was the date of the instrument of promotion. The DOR in all other cases would be established as governed by appropriate regulation. b. Paragraph 2-3 (Rules) – the DA Form 4187 (Personnel Action) or promotion orders would be used for all U.S. Army Reserve and all ARNGUS Soldiers awaiting initial military training (special promotions and split training option-phase II) and all promotions for Soldiers in a Title 10 status (including mobilization). DA Form 4187 would not be used for other automatic promotions. ARNG Soldiers were not required to be military occupational specialty qualified for promotion through Specialist (SPC). (1) Eligibility criteria for immediate (ARNG) promotion to SPC would be 24 months time in service (TIS) and 6 months time in grade (TIG). Soldiers must meet eligibility criteria in paragraph 1–10. c. Paragraph 7-12 – promotion to sergeant through sergeant major are announced in orders. The orders would cite the appropriate paragraph of this chapter for promotion. d. Paragraph 7-14 – provided for special advancements and promotions. They were used in special circumstances and were made without regard for regular promotion criteria. When a Soldier was eligible for more than one special promotion or advancement (or higher enlistment grade per AR 601–210), the Soldier was awarded the highest grade for which eligible. (1) Soldiers would be advanced or promoted to higher ranks when verified that they enlisted or reenlisted in a grade lower than that authorized, or claimed eligibility for enlistment in a higher grade, but did not have the required supporting documentation. Documents must be presented within 1 year after the enlistment date to validate entitlement to the higher grade. All the conditions, and thus the entitlement, must had existed prior to the day of enlistment. The date of rank would be the same as the date of enlistment. The advancement would not be effective earlier than the date of signature by the authenticating officer, except when a retroactive date is approved by the next higher promotion authority per paragraph 1–13. e. Paragraph 7- 20 (Criteria) – to be eligible for consideration, selection, and promotion to Sergeant through Sergeant Major Soldiers must: (1) Be considered and placed in the selection objective of the current promotion list. All Soldiers must go through the board process before they can be selected and promoted. (2) Be participating satisfactorily in the active ARNGUS in the next lower grade. Waivers and exceptions to policy were not authorized for TIG, TIS, and cumulative enlisted service. (3) Meet the criteria in table 7-1, by the date of the promotion board announcement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008659 5 1