MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001065510

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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: In effect, that he be considered for promotion to sergeant major (SGM) as an exception to policy.

APPLICANT STATES: In effect, that his records were improperly withheld from consideration by the 2001 Individual Ready Reserve/Individual Mobilization Augmentee (IRR/IMA) promotion selection board that convened in July 2001. He claims that no other enlisted grade has a promotion date of birth cut-off date and that the birth date established by the Total Army Personnel Command (PERSCOM) for this promotion board was to ensure that a member had sufficient time remaining to complete the non-resident SGM course and 2 years time remaining in service to retire to satisfy the promotion service obligation to SGM.

EVIDENCE OF RECORD: The applicant's military records show:

On the date of his application to this Board, he was serving in the United States Army Reserve (USAR) and assigned to an IMA position as a senior logistics operations noncommissioned officer (NCO), Headquarters, United States Forces Korea (USFK), and also serving a tour as the senior enlisted advisor for the Defense Energy Support Center, Houston, Texas.

On 6 March 2001, PERSCOM, St. Louis, Missouri, published a memorandum (2001 IRR/IMA Promotion Board) for each NCO in the zone of consideration. It announced that a Department of the Army (DA) promotion selection board was scheduled to convene on 31 July 2001, to consider eligible IRR/IMA, and Standby Reserve (Active List) NCO’s for promotion to staff sergeant/E-6 through SGM/E-9. It also established the zone of consideration criteria for promotion consideration and this included a date of birth cut-off date of not earlier than
30 June 1944.

On 4 May 2001, the applicant requested a waiver of the date of birth criteria established in the 6 March 2001 promotion memorandum and cited the fact that his date of birth was only 21 days beyond the date of birth cut-off date established. He also provided several items as justification for his waiver, which included, but was not limited to the fact he had completed the non-resident SGM’s course, he had received a bachelor of science (BS) degree in criminal justice, he had been inducted into the national honor society, and had completed 30 hours toward a masters degree in public administration. He also indicated that he had completed several correspondence courses to enhance his ability in his military occupational specialty (MOS) and basic military knowledge, which resulted in giving him the opportunity to serve as a senior enlisted advisor.

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The commander of the Defense Energy Support Center, Houston Texas, provided supported the applicant’s waiver request and recommended that it be approved. He also stated that the applicant was serving as the senior enlisted advisor for his unit and that the applicant’s abilities and professionalism were in keeping with the highest standards of the Army and the NCO Corps.

On 6 September 2001, the Chief, Office of Promotions, Reserve Components (RC), PERSCOM, St. Louis, Missouri, returned the applicant’s waiver request without action. The applicant was advised that his promotion consideration fell under IMA guidelines under the provisions of chapter 5, Army Regulation
140-158, and that paragraph 5-5 of that regulation stated, in pertinent part, that no waivers of the promotion criteria were authorized.

Army Regulation 140-158 prescribes the policy and procedure governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers. Chapter 5 contains guidance on the promotion of IRR/IMA and Standby Reserve soldiers and it establishes the commander, PERSCOM, St. Louis, as the promotion authority for SSG through SGM. It also mandates that the promotion authority establish the zones of consideration for promotion, announce the convening of the promotion selection board, and produce the memorandum of instructions to the promotion board members.

Paragraph 5-5 specifies that waivers of eligibility criteria are not authorized for IRR/IMA promotions. Paragraph 5-12 contains the policy and procedure for IRR/IMA Stand-By Advisory Board (STAB) consideration. It states, in pertinent part, that consideration by a STAB is authorized to review records not considered by the original promotion selection board as a result of an error or if the record reviewed by the original promotion board contained a material error.

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. The Board notes the contentions of the applicant that he should be granted a waiver of the zone of consideration age requirement established by the promotion authority and that his records should be placed before a STAB using the promotion criteria established for the 2001 IRR/IMA promotion board as an exception to policy. However, it finds an insufficient evidentiary basis to support this request.

2. The evidence of record confirms that 2001 IRR/IMA promotion memorandum was published and the zone of consideration parameters established by the appropriate promotion authority in accordance with the applicable regulations. In addition, the governing regulation specifically prohibits a waiver of the promotion eligibility requirements established for IRR/IMA soldiers.
3. The zone of consideration promotion criteria established by the promotion authority for the 2001 IRR/IMA promotion selection board was applicable to all IRR/IMA soldiers in similar circumstances as the applicant. Therefore, the Board finds he was not unfairly singled out by the date of birth cut-off established.

4. By regulation, in order for a soldier’s record to be reviewed by a STAB, a soldier would have had to not been considered for promotion by the original board as a result of some error or a material error must have existed in the record reviewed by the regular promotion board. The evidence of record and the independent evidence provided by the applicant fails to establish that either of these conditions existed in his case.

5. The applicant’s record clearly shows that he was not considered for promotion by the 2001 IRR/IMA promotion board because he did meet the zone of consideration criteria established by the promotion authority, and not as a result of error. Therefore, the Board finds no error or injustice associated with his not being considered for promotion and it concludes that relief is not warranted in this case.

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 this 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

__JNS __LDS __ __JTM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065510
SUFFIX
RECON
DATE BOARDED	2002/03/21
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.