MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 February 2001
         DOCKET NUMBER: AR2001052654

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Stanley Kelley		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That all NCOES (NCO Education School) requirements be waived, that he be promoted to Master Sergeant E-8, and that he receive all due pay and allowances.

APPLICANT STATES: That on 23 May 2000 this Board determined that his appeal [removal of an NCOER from his official file, promotion to Sergeant First Class (SFC) E-7, and consideration for promotion to Master Sergeant (MSG)] had merit, but directed only that the NCOER be removed from his official file, and that his record be placed before a standby advisory board (STAB) for year group 1995 to the present. He then requested to speak with the Director of the ABCMR and his case worker.

He states that he provided a memorandum detailing his concerns, in that the ABCMR would unknowingly cause him further harm and delay by referring his records to a STAB. Subsequent to the meeting, the Director informed him that should he not be promoted, he should file another appeal. On 16 January 2001 he was notified that he was selected for promotion to SFC effective on 1 May 1997, making him eligible for the MSG promotion board currently in session (30 January to 27 February 2001). His promotion order was dated 14 December 2000 and delivered to him on 24 January 2001, making it difficult to prepare his records for the MSG promotion board. He has no photograph showing his rank as SFC, and has not completed ANCOC (Advanced NCO Course), a requirement for consideration by the MSG board.

He states that he assumes that his records would also be presented to the STAB for consideration following the MSG board based on his back dated rank to SFC. The STAB and the MSG board will not be able to render a fair decision because of the lack of an NCOER or a photograph showing that he served as a SFC. The MSG board and the STAB will not be aware of all the facts concerning his case.

The ABCMR must consider all the facts and circumstances concerning his case, and promote him with his peers based on his overall service record. The STAB will only look [at NCOER] for rated positions that demonstrate his potential for advancement based on successful duty assignments. The ABCMR should also determine if the back dated promotion to SFC for 1 May 1997 was a fair and correct assessment of his promotion potential. Had the events never happened, he believed he would have been promoted in 1995 or 1996.

Justice will not be served if the ABCMR does not promote him. He states that the ABCMR cannot just “throw him into a STAB” and expect the members to understand what has happened. In fact, the members are prohibited from knowing any of this information so they can be fair and impartial. He has served his country well. His record reflects an above average performance. He deserves to be rewarded for his effort, his faithful service, for his persistence, and for being right.
EVIDENCE OF RECORD: The applicant's military records show:

Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his case on 16 March 2000 (AR2000037992), in which he requested removal of a NCOER from his official file, retroactive promotion to the pay grade of E-7 in 1994, and standby consideration for promotion to the pay grade of E-8.

The applicant was selected for promotion to SFC E-7 by a STAB which adjourned on 31 October 2000. He was promoted to SFC E-7 effective 1 May 1997. The promotion order is dated 14 December 2000.

MILPER message Number 00-16 announced the convening of a selection board on 1 February 2000 to consider soldiers for promotion to Master Sergeant. Eligibility criteria included all SFC with a date of rank of 31 July 1997 and earlier. Primary zone date of rank is 31 July 1996 and earlier. Secondary zone is 1 August 1996 through 31 July 1997. SFC who are not ANCOC qualified are ineligible for consideration. That message also stated that soldiers in zones of consideration could write to the President of the board calling attention to any matter concerning them, not already covered in their record, that they consider important to their consideration.

Included with his application is a 26 January 2001 letter addressed to the President of the MSG selection board, stating the circumstances why he had not attended ANCOC, and why his records contained no photograph showing his rank as SFC and no evaluation reports as a SFC.

In 1989 the Chief of Staff of the Army approved an initiative to make graduation from PLDC (Primary Leadership Development Course), BNCOC (Basic NCO Course), ANCOC, and the Sergeants Major Academy a prerequisite for promotion. Linking NCOES to promotions ensures that NCOs are provided the appropriate skills, knowledge, and attitudes before they assume the duties and responsibilities of the next higher grade. That linkage also aligns the NCO professional/leader development system with the Army philosophy of train, promote, and utilize.

Army Regulation 600-8-19 provides for STAB to consider records of soldiers from the primary and secondary zones not reviewed by a regular board. It also states that only soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion. Soldiers who were considered in a secondary zone will not be reconsidered.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. There is no error in the applicant’s records, or an injustice done him concerning his current situation. The Board on 16 March 2000 attempted to correct the previous injustice done him as a result of a fraudulent NCOER. That report was purged from his file, he was considered, selected for promotion, and promoted to SFC. The Board also directed that the applicant be given the first available class to attend the ANCOC, and upon completion and promotion with the applicable date of rank, be afforded promotion consideration to pay grade E-8, if he is eligible by virtue of his date of rank.

2. There is no evidence that the applicant has completed or been scheduled for ANCOC. The applicant indicates he has not. Consequently, he would not be eligible for consideration for promotion by the MSG selection board currently in session. However, upon completion of ANCOC, he would be eligible for consideration by a STAB. The applicant has not given good reason why the Board should waive any NCOES requirements, as he has requested in his application. Completion of ANCOC is a requirement, not only to be promoted, or in the applicant’s case to retain his promotion to SFC, but to ensure NCOs are qualified in their specialties.

3. The STAB is there to correct inequities, to look at the records of soldiers who should have been considered for promotion, but were not; or to reconsider soldiers who were not promoted because of some material error. There is no reason for this Board to arbitrarily promote the applicant to MSG. To do so, in this instance, would be unfair to other soldiers who are in a like situation. The applicant’s contention that a STAB might not be aware of his circumstances is not accepted. The applicant may submit any matters that he so desires to a promotion board, including this and the 16 March 2000 Board determination.

4. The applicant was considered for promotion to SFC by a STAB under the 1995 promotion criteria, promoted, and given an appropriate date of rank. He has not provided any evidence to show that he would have been promoted in 1995 or 1996 had the forged NCOER not been in his records. To the contrary, that NCOER was not available to selection boards that convened prior to 1995; and he had been nonselected for promotion at least three times prior to the period covered by that report.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.


7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___sk___ ___tsk___ ___rvo___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001052654
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010222
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.00
2.	100.07
3.
4.
5.
6.