IN THE CASE OF: 
BOARD DATE:  22 July 2022
DOCKET NUMBER:  AR20210015078 


APPLICANT REQUESTS: correction of his rank upon retirement to reflect sergeant first class (SFC)/E-7. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 


•DD Form 149 (Application for Correction of Military Record)•DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 2 February 2006•National Guard Bureau (NGB) Form 22 (Separation and Record of Service), ending 31 March 2006•Army National Guard (ARNG) Memorandum, Subject: Inquiry Regarding the applicant, dated 19 August 2021



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, in pertinent part, that he was retired at the rank of staff sergeant (SSG)/E-6. However, he held the rank of SFC for several years but was reduced back to SSG/E-6 when he did not complete the required Advanced Non-Commissioned Officers Course (ANCOC) Phase II. In June of 2003, he attended and completed ANCOC Phase II which is also reflected on his discharge paperwork.3.A review of the available service records reflects the following:a.On 23 March 1983, the applicant enlisted in the ARNG and continued servicethrough reenlistments. 



b.On 5 September 1991, the applicant was promoted to the rank/grade of sergeant(SGT)/E-5. 


c.On 23 January 1998, the Department of Military and Veterans Affairs, issuedOrders Number 023-007, promoting the applicant to the rank of SFC/E-7, effective on with a Date of Rank (DOR) of 1 January 1998. 



d.On 29 January 2001, the applicant was reduced to the rank of SSG/E-6 underthe provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 11-56e for failure to complete Phase II Non-Commissioned Officer Education System (NCOES) Course. 



e.On 28 June 2003, DA Form 1059 (Service School Academic Evaluation Report)reflects the applicant's completion of Infantryman ANCOC Phase II. 



f.On 12 May 2021, the U.S. Army Human Resources Command, issued OrdersNumber C05-193223, placing the applicant on the Retired List in the rank of SSG/E-6. 



4.The applicant provides the following a:

a.DD Form 214, ending 2 February 2006, reflecting in item 14 (Military Education),







completion of ANCOC Phase I, 2 weeks, and Phase II, 2 weeks, June 2003. b. NGB Form 22, ending 31 March 2006, reflecting in item 12 (Military Education) completion of ANCOC Phase II, 2 weeks, June 2002. c. ARNG Memorandum, dated 19 August 2021, response to the , request for correction of the applicant's promotion to SFC/E-7. It states in pertinent part, ARNG was unable to action the request. Upon retirement from the ARNG the applicant was transferred to the Retired Reserve on 30 June 2006 and has been managed by the U.S. Army Human Resources Command (HRC). According to HRC, the applicant met the time requirements for the rank of SFC/E-7, but he did not meet the NCOES requirements, which precludes him from maintaining the rank into retirement. HRC recommends the applicant file a request for correction of rank to the Army Review Boards Agency. 





5.On 27 October 2022, the NGB, Chief, Special Actions Branch provided an advisory recommending approval of the applicant’s request citing:a.The applicant was retired from the ARNG as a SSG although he held the rank



of SFC for four years. He was subsequently reduced in rank to SSG, due to non-attendance of Professional Military Education (PME) by a designated date. b. ARNG Enlisted Services contends that the applicant should be able to hold E-7/SFC in a retired status in accordance with Army Regulation (AR) 135-180(Retirement for Non-Regular Service), due to his service from 1 January 1998 through











28 January 2001 in the rank/grade of SFC/E-7, meeting the 3 years TIG requirement (Table 4-2). Also, paragraph 4-6c is that the Soldier served satisfactorily in the grade, and there are no records in his permanent file that his service ever became unsatisfactory.  c. ARNG confirms the reason for reduction to E-6/SSG on 29 January 2001 was for failure to complete required PME. Although, paragraph 4-6c(3)(a) and (b) states that a Soldier is not able to retire at the higher grade if "Revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, or court-martial; or (b) There is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.” 6. On 29 October 2022, the applicant was provided with a copy of the advisory opinion to provide a response.BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted.  The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advising official’s findings recommendation to grant relief as there is sufficient evidence that shows the applicant was not reduced in rank due to misconduct after serving in the rank for several years. The applicant reached 30 years from the time of his first enlistment on 22 March 2013 and was placed on the retied list on 23 February 2021. The Board agreed his retirement orders at age 60 should be amended to show SFC. BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X    :X    :X      GRANT FULL RELIEF 

:     :     :       GRANT PARTIAL RELIEF 

:     :     :       GRANT FORMAL HEARING 

:     :     :       DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders C05-193223 issued by U.S. Army Human Resources Command on 12 May 2021 to show “Retired Grade: Sergeant First Class” and back pay and entitlements because of this correction if applicable. 



X
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 militaryrecords must be filed within 3-years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) in effect atthe time states in paragraph 1-27 (NCOES requirement for promotion and conditionalpromotion) effective 1 October 1993, the Army linked NCOES to promotion to SSG,SFC, and SGM. Linking the NCOES to promotion ensures NCOs possess theappropriate skills and knowledge required prior to assuming the duties andresponsibilities of the next higher grade. NCOES requirements for promotion to SFC aSoldier must be an ANCOC graduate for promotion to SFC. Conditional promotions. (1)Soldiers selected for promotion to SSG, SFC, and SGM, but have not met the NCOESrequirement, will be promoted conditionally. (2) Those Soldiers who fail to successfullycomplete or do not attend their scheduled NCOES will have their conditional promotionsrevoked and will be removed from the list. Provided otherwise eligible, those Soldierswill recompete for promotion. (3) Soldiers who have been previously removed from therecommended list under this provision are not entitled to receive future conditionalpromotions. (4) The following statement will be entered on the SSG promotion
instrument: "Soldier has not met the NCOES requirement and is promoted conditionally. If the Soldier does not attend and successfully complete the required course 
as scheduled, the Soldier will be administratively reduced and will have to be boarded again to regain promotable status." 

3.AR 135-180 (Retirement for Non-Regular Service) provides that if a Soldier wastransferred to the Retired Reserve or discharged on or after 25 February 1975, retiredgrade will be that grade which a commissioned officer or enlisted Soldier held while onactive duty or in an active reserve status for at least 185 days or 6 calendar months
(E-1 through E-6 involuntary separation)). Table 4-2 (Rules for highest grade heldtimelines) states E-7 through E-9 (AR 600-8-19) 3-years (185 days or 6 calendarmonths if involuntarily separated).

//NOTHING FOLLOWS//