*ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 October 2019 DOCKET NUMBER: AR20170013517 APPLICANT REQUESTS: promotion from specialist (SPC)/E4 to sergeant (SGT)/E5 and back pay and allowances, earlier than 2010. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Discharge Orders Number 07-198-00023 * Physical Evaluation Board (PEB) Proceedings * Separation Processing Orders Number 175-0013 * Promotion Orders Number 239-501 * Amendment Orders Number 239-0019 * Amendment Orders Number 287-0007 * Veteran Affairs (VA) Statement in Support of Claim * Enlisted Record Brief (ERB) (2) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states while assigned to the Warrior Transition Unit, he met the promotion cutoff score and should have been promoted to SGT. He believes he was promotable on 7 August 2009 and should receive back pay and allowances. 3. The applicant provides the above referenced documents, to include: a. Discharge Orders Number 07-198-00023, dated 17 July 2007, which states he was honorably released from the U.S. Army Reserve as a result of his enlistment in the Regular Army (RA) on 20 February 2007. b. Separation Processing Orders Number 175-0013, dated 24 June 2010, which states effective 27 August 2010, he was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. His retired grade of rank is listed as SPC. c. Promotion Orders Number 239-501, dated 27 August 2010, which state the applicant was promoted from SPC to SGT with a date of rank of 27 August 2010. Promotion is not valid and the order will be revoked if he is not in a promotable status on the effective date of promotion. d. Amendment to Separation Processing Order Number 239-0019, dated 27 August 2010, which amends order number 175-0013, as reads: SPC to SGT. e. Amendment to Separation Processing Order Number 287-0007, dated 14 October 2010, which amends order number 175-0013, to include additional instructions: VOCO date confirmed, effective date of promotion 27 August 2010. f. VA Statement in Support of Claim, dated 22 June 2017, which states he was wrongfully discharged without his correct rank and pay for SGT. He submitted two ERBs that will show different readings in the flag code section. g. ERBs: * 5 August 2009: zero flag codes, flag start date, or flag expiration date * 12 May 2010: flag code: “KA – Army Weight Control Program” and flag start date: “8 April 2010” 4. A review of the applicant’s service record shows: a. Having prior service, he enlisted in the RA on 20 February 2007 in the rank and grade of SPC/E4. b. On 3 June 2010, the Physical Evaluation Board Proceedings convened and found the Soldier was physically unfit and recommended the Soldier’s disposition to be permanent disability retirement. c. He was honorably retired on 27 August 2010 with the narrative reason listed as disability, permanent (enhanced). His DD Form 214 (Certificate of Release or Discharge from Active Duty), electronically signed by the authorized official on 1 July 2010, shows: item 4a (grade, rate or rank) SGT. 5. Army Regulation 600-8-19 (Personnel – Enlisted Promotions and Reductions), paragraph 3-24 and Table 3-10, in effect at the time, governs the SGT and staff sergeant (SSG) promotion system and states Soldiers will be immediately removed from a recommend list for enrollment in the Army Weight Control Program. 6. Military Personnel Message Number, 12-309, Removal of Ineligible Promotable Soldiers (SPC/CPL/SGT) from the Promotion Standing List), dated 26 September 2012, states the U.S. Army Human Resources Command discovered over 8,000 Soldiers (SPC, corporal, and sergeants) were erroneously listed on the SGT/SSG promotion standing list. The reasons included immediate reenlistment prohibition codes such as APFT failures, overweight Soldiers, and field bars to reenlistment. Additionally, Soldiers also erroneously appear on the promotion standing lists as a result of a suspension of favorable personnel actions. Flag codes could be found on the ERB and military personnel division personnel were directed to remove the flags. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The Board considered the applicant's statement, his service record, the reason for his separation and the orders promoting him to sergeant/E-5 effective 27 August 2010. The Board found no evidence that the applicant had been recommended for and/or selected for promotion to SGT. The Board found no evidence of promotion worksheets and the applicant provided none. Based upon a preponderance of evidence, the Board determined that the applicant's promotion date to SGT, as reflected in the records, was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 11/13/2019 CHAIRPERSON Signed by: 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 Record (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 – Enlisted Promotions and Reductions), Paragraph 3-24 and Table 3-10, in effect at the time, governs the Sergeant (SGT) and staff sergeant (SSG) promotion system and states Soldiers will be immediately removed from a recommend list for enrollment in the Army Weight Control Program. 3. Military Personnel Message Number, 12-309, Removal of Ineligible Promotable Soldiers (specialist (SPC), corporal (CPL), SGT) from the Promotion Standing List), dated 26 September 2012, states the U.S. Army Human Resources Command discovered over 8,000 Soldiers (SPC, CPL, SGT) were erroneously listed on the SGT/SSG promotion standing list. The reasons included immediate reenlistment prohibition codes such as APFT failures, overweight Soldiers, and field bars to reenlistment. Additionally, Soldiers also erroneously appear on the promotion standing lists as a result of a suspension of favorable personnel actions. Flag codes could be found on the ERB and military personnel division personnel were directed to remove the flags. NOTHING FOLLOWS