MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2003086775

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Ms. Mae M. Bullock		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 the records be corrected to show he received his notification of selection for promotion to Sergeant First Class (SFC), E-7 in military occupational specialty (MOS) 79R in 2001, accepted the promotion, and was promoted to SFC based upon that 2001 selection.

APPLICANT STATES: That he was selected for promotion to SFC as a 79R in 2001 but he did not receive that information until 2002, when he was informed that he could not accept the promotion from 2001 and therefore he was not promoted. Since he was not informed of the promotion in 2001, he feels an injustice was served. The following year he was not considered for promotion at all. His records were sent to a Standby Advisory Board (STAB) but he was not selected for promotion. The proper thing to do is allow him to receive the 2001 promotion to SFC as a 79R.

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

He enlisted in the Regular Army on 27 June 1990. He was assigned duties as a 79R around January 1997. He was promoted to Staff Sergeant, E-6 on 1 February 1999 in his primary MOS of 31P. He left 79R duties around December 1999.

The applicant was in the secondary zone of consideration for promotion to SFC when the Calendar Year (CY) 2001 promotion selection board convened. He had not been recommended for promotion in his primary MOS of 31P. He was contingently recommended for promotion in MOS 79R. The background screen was not completed within the required time frame and he was not added to the CY2001 promotion selection list.

The applicant was due for consideration in the primary zone by the CY2002 SFC promotion selection board (which convened on 29 May 2002 and recessed on 27 June 2002); however, his records were erroneously not considered. After that discovery, he was considered by a STAB in primary MOS 31P and not recommended for promotion to SFC.

In the processing of this case, an advisory opinion was obtained from the Promotions Branch, U. S. Total Army Personnel Command (PERSCOM). That office noted that the applicant was not selected for promotion to SFC by the CY2001 selection board; however, based on his experience as a Detailed Recruiter and the Army's requirement for additional SFC 79Rs he was selected for potential promotion in MOS 79R. That promotion was contingent upon completion of a background screen. On 23 August 2001, the applicant was sent notification via his servicing Personnel Services Battalion that he was selected for potential promotion as a 79R, that his selection was still pending the completion of a background screen, and that he had 30 days to either accept or decline reclassification into MOS 79R if cleared by the background screen. On 24 September 2001, the background screen was not complete and the applicant had not responded to the notification. Therefore, he was never added to the CY2001 SFC list. PERSCOM opined that to afford him the opportunity to reclassify for promotion to SFC would afford him an unfair advantage not given to other soldiers.

A copy of the advisory opinion was provided to the applicant for comment. He stated that he understands a memorandum was forwarded to him through the 18th Personnel Services Battalion on Fort Bragg, NC but he never received this memorandum. He did not learn of it until August 2002 when he discovered he was not considered for promotion by the 2002 board. He was told at that time that he was not considered because the previous year he had been selected for promotion as a 79R. Upon investigation, PERSCOM informed him that he was not on the [2001] published E-7 list as a selectee due to a pending background investigation. He states that the Army's solution was to grant a STAB for the 2002 promotion board. Due to his being on permanent change of station leave, he was not able to perform a proper records review. He arrived on Okinawa on 10 September 2002. Updated DA Forms 2A and 2-1 (Personnel Qualification Records) were requested from Camp Zama, Japan (over 900 miles from Okinawa). Those forms were not forwarded to the promotion board because he was not assigned to Camp Zama. The record that was reviewed during the 2002 STAB was his online Official Military Personnel File (OMPF), which was incomplete as of October 2002, the convening date of the STAB. He believes the whole process unjustly cost him two promotions.

PERSCOM informed the Board analyst that a program was established in 1999 (and continued in 2000 and 2001) to assist Recruiting Command in overcoming a shortfall in SFC 79Rs by offering promotion to SFC to soldiers who had a background as a detailed recruiter but had not been recommended for promotion in their primary MOS. In 2001, about 350 soldiers were contingently recommended for promotion to SFC under this program. The Deputy Chief of Staff for Personnel gave PERSCOM a 45-day suspense to get those soldiers cleared for acceptance for reclassification into (by completing a background screen) and promotion to SFC in primary MOS 79R. That is, the soldier had to accept the promotion AND a background screen had to be completed within the 45-day window. Of the approximately 350 soldiers contingently recommended for promotion, about 10 to 15 of them had not had their background screen completed by time the 45-day a window was up. There was no extension to this window. The applicant was one of those 10 to 15 soldiers. The program was discontinued after 2001.

Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system. In pertinent part it states that criteria for primary and secondary zones of consideration for each grade will be announced by the Commander, PERSCOM before each board. Before each board, an eligible soldier will review and sign his or her Personnel Qualification Record, which includes an Enlisted Records Brief or DA Forms 2A and 2-1 for submission to the board. The OMPF should be reviewed by the soldier 3 to 6 months prior to the board.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. 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.

2. The applicant was considered for promotion to SFC in CY2001, when he was in the secondary zone, but not selected for promotion in his primary MOS of 31P. However, for the third year in a row a program was in effect to offer promotion to SFC to soldiers who had a background in MOS 79R but had not been recommended for promotion in their primary MOS as a means of reducing Recruiting Command's shortfall of SFC 79Rs. The applicant had such a background and he was one of approximately 350 soldiers contingently selected for promotion as a 79R under this program.

3. There were two components to the contingent promotion. The soldier had to accept the promotion to SFC in MOS 79R AND the background screen had to be completed within a narrow, and nonextendable, 45-day time frame. By time the 45-day time frame ended, the applicant was one of 10 to 15 soldiers whose background screen had not been completed in time.

4. The Board is cognizant of the fact the applicant contends he never received the notification that he had been contingently selected for promotion in MOS 79R by the CY2001 SFC promotion selection board. However, the Board notes that his failure to receive that notification in a timely manner had no practical effect on his failure to be promoted by that selection board. He, along with 10 to 15 other soldiers in similar circumstances, could not have received that promotion due to the fact their background screening had not been completed in time. It would not be equitable to promote the applicant when those 10 to 15 others were not eligible for promotion, either.

5. The Board has considered the applicant's contention that he was not able to competitively compete for promotion to SFC during the STAB after his erroneous nonconsideration by the CY2002 promotion selection board because he could not perform a proper records review. However, the Board presumes the applicant properly reviewed his records (DA Forms 2A, 2-1, and OMPF) prior to the 29 May 2002 convening of the original CY2002 SFC promotion selection board. The STAB that actually considered his records convened, as he states, in October 2002, less than 6 months later. The applicant has provided no evidence to show that the content/maintenance of those records significantly deteriorated or changed in those months. He has provided no evidence to show what those changes were, so the Board cannot determine if they worked to his detriment. The Board therefore concludes that there is insufficient justification to promote the applicant to SFC under the criteria of the CY2002 promotion selection board.

6. 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

__aao___ __tbr___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086775
SUFFIX
RECON
DATE BOARDED	20030807
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.00
2.
3.
4.
5.
6.