PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002071298


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

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his records be reconsidered by a Standby Advisory Board (STAB) for selection for promotion to Command Sergeant Major (CSM)/Sergeant Major (SGM) and attendance at the U. S. Army Sergeants Major Course (USASMC) for calendar years 1999, 2000, and 2001 (CYs 99, 00, and 01).

3. The applicant states that his Noncommissioned Officer Evaluation Report (NCOER) for the period ending July 1999 was missing from his Official Military Personnel File (OMPF) during the FY 99 board. In addition, his OMPF was missing two of his previous Meritorious Service Medals (MSMs), three Army Commendation Medals (ARCOMs), and three Army Achievement Medals (AAMs). He had reviewed his OMPF in 1998 and 1999 and all of his awards were posted at those times. Also, his packet for the FY 99 board was not completed properly. One of the soldiers in the Military Personnel Office (MILPO) gave him the wrong statement to sign. This prevented the FY 99 board from considering his records. He requested a STAB in 2000 but his request was lost.

4. The applicant’s military records show that he enlisted in the Regular Army on 27 June 1977. He had continuous service and was promoted to pay grade E-8 on 1 January 1995 in military occupational specialty (MOS) 00R (Recruiter Retention NCO), later converted to 79R (Recruiter).

5. The applicant was first eligible for promotion consideration to pay grade E-9 (specifically, CSM, since the force structure for an E-9, MOS 79R calls only for CSMs) in October 1999. Military Personnel Message Number 99-182, Subject: Zones of Consideration for CSM Appointment, Promotion to SGM, Selection for USASMC and QMP (Qualitative Management Program), announced in June 1999 that the CY 99 CSM/SGM/USASMC board would convene in October 1999. Guidance was given that an E-8 could decline consideration for promotion to SGM and attendance at the USASMC. Failure to initiate a declination would result in automatic acceptance. The same provisions applied to CSM consideration in that unless a declination memorandum was initiated, an eligible soldier was determined to have volunteered to compete for CSM selection and would be automatically considered. That negated the requirement for acceptance statements. The message further stated that it was imperative that all soldiers in the zone of consideration were aware of those provisions. USASMC eligibility was contingent upon acceptance of promotion consideration.

6. On 1 September 1999, the applicant signed a declination statement and his records were therefore not considered by the FY 99 board. The statement is clearly identified as a DECLINATION STATEMENT and the applicant was signing that he understood that he was declining consideration for CSM (all in bold, capital letters).

7. The applicant’s MILPO provided a statement for his subsequent request for a STAB. The MILPO NCO stated the applicant needed to sign his packet. The clerk had the applicant sign the wrong statement (Declination Statement). That was an oversight on the MILPO’s part. When the applicant and the MILPO NCO finished his packet, he (the MILPO NCO) thought the applicant was accepting and wanted his records to be reviewed. The applicant was in a rush at the time to catch a flight and the MILPO NCO knew that if the applicant had had more time he would not have signed the statement without reading it.

8. The applicant’s OMPF that would have been reviewed by the CY 99 board and the OMPF that was seen by the CY 2000 board had several problems concerning his awards including the fact the only MSM certificate filed was the one dated October 1998, ARCOM Permanent Orders 112-27 was filed on the OMPF three times, and ARCOM Permanent Orders 24-1 was filed on the OMPF four times. His NCOER for the period ending July 1999 was filed on his OMPF for FY 2000. These problems appear to have been corrected on his OMPF prepared 14 April 2002.

9. The applicant apparently requested STAB reconsideration in 2000 and his request was lost. He requested STAB reconsideration in 2001. Among his contentions, he stated that he read and signed a letter stating he would accept CSM if selected. However, one of the soldiers in the MILPO printed two similar statements and gave him the wrong statement to sign. His request was disapproved by the U. S. Total Army Personnel Command (PERSCOM) on 10 January 2002. PERSCOM noted that Army Regulation 600-8-19, paragraph 4-14h(4) states that incorrect data on the Personnel Qualification Record (Enlisted Record Brief or the Personnel Qualification Record, DA Forms 2A and 2-1) does not constitute material error and will not be reason for reconsideration. In addition, his NCOER for the period ending July 1999 needed sufficient time for processing before its absence could be considered material error to warrant promotion reconsideration. A review of his records revealed that the NCOER was seen by the CY 00 board.

10. Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty. This regulation specifies that promotion reconsideration by a STAB may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an

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individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

CONCLUSIONS:

1. The message which announced the October 1999 CSM/SGM/USASMC board stated that there was no requirement for acceptance statements. As an E-8 up for promotion to E-9 for the first time, the applicant should have made himself familiar with this message. In addition, in his September 2001 request for a STAB he stated that he read and signed a letter stating he would accept CSM if selected. However, that letter clearly, in bold and all capital letters, indicated that it was a DECLINATION STATEMENT. Despite the letter of support he obtained from his MILPO, his argument that he thought he was signing an acceptance statement on 1 September 1999 is not convincing. Therefore, it would not be equitable to have his records considered by a STAB under the CY 99 criteria. The argument concerning the filing of his NCOER for the period ending July 1999 in time for this board is then immaterial.

2. The applicant’s argument that there were serious errors concerning the filing of several awards on his OMPF is more convincing. It is believable that he reviewed his OMPF in 1998 and 1999. It is not believable that these errors were on his OMPF then and he took no steps to correct the errors at that time. While the Board is not entirely convinced that these errors alone resulted in his nonselection for promotion to E-9 by the CY 00 and CY 01 boards, any reasonable doubt should be resolved in his favor.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by making the applicant’s records available to the next scheduled Standby Advisory Board for promotion consideration to CSM under the CY 00 and, if necessary, the CY 01 criteria. His records will be constituted as they were for those boards except that all corrections pertaining to his awards (awarded up to the date of those boards), as shown on his current OMPF, will be retained.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_RVO___ ___JPI__ __PM____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O’Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002071298
SUFFIX
RECON
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	PARTIAL GRANT
REVIEW AUTHORITY
ISSUES 1.	131.11
2.
3.
4.
5.
6.