RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 May 2005
      DOCKET NUMBER:   AR 20040004368


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be promoted to master
sergeant/E-8 (MSG/E-8).

2.  The applicant states, in effect, that his promotion to MSG would be in
keeping with the Special Court Martial (SPCM) Order and Action Memorandum
that directed all his rights, privileges and property deprived based on the
findings of guilty be restored.  The applicant further claims that
restoration of his rank and pay is more easily achieved than the abscess on
his career, character and integrity.

3.  The applicant provides a self-authored statement and a fact sheet in
support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be promoted to MSG/E-8.


2.  Counsel states, in effect, that the applicant has served in the Army
for
over nineteen years and progressed rapidly, earning his promotion to
staff sergeant/E-6 (SSG/E-6) in the Human Resources field in just twelve
years of service.  The applicant completed two years of college level off-
duty education, completed many duty related courses and received multiple
awards for achievement and service.

3.  Counsel further claims that the applicant was falsely accused and
convicted of drug abuse by a SPCM.  The SPCM conviction was overturned by
the
United States Army Court of Criminal Appeals after it determined the
applicant’s trial had been unfair due to prosecutorial misconduct.  The
appeals court ordered that the rights and entitlements the applicant was
denied as a result of his conviction be restored.  It also authorized a
retrial; however, the applicant’s commander declined to order a rehearing
or to prosecute.

4.  Counsel further states that while the applicant received his overdue
promotion to SSG/E-6 and was selected for and promoted to sergeant first
class/E-7 (SFC/E-7) by a Stand-By Advisory Board (STAB), he was unable to
be considered for promotion to MSG/E-8 by the Calendar Year 2004
(CY 2004) MSG/E-8 Promotion Selection Board (PSB) because he had not
completed the Advanced Noncommissioned Officer Course (ANCOC).
5.  Counsel claims that even had the applicant been considered for
promotion by the CY 2004 MSG/E-8 PSB, he would not have been competitive
because he had no evaluation reports for the six years he underwent the
court-martial and appellate processes.

6.  Counsel claims that the applicant’s contemporaries and peers who
performed at his level are now all MSGs.  However, the applicant will never
be able to compete for that rank until he has had the opportunity to be
made whole.  As a result, counsel presents the applicant’s request that
this Board promote him to MSG/E-8 due to the error and injustice done to
him as established by the evidence in this case.

7.  Counsel provides the following documents in support of the application:
 Seven Page Self-Authored Statement, Enlisted Records Brief (ERB), United
States Court of Criminal Appeals Decisional Document, Human Resources
Command (HRC) Soldier Information Sheet, 31 July 2003 Army Board for
Correction of Military Records (ABCMR) Letter, Calendar Year 2004 (CY 04)
MSG Promotion Board Announcement Military Personnel (MILPER) Message and 25
March 2004 MSG Promotion List.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 4 February 1985.  He was initially trained
in and awarded military occupational specialty (MOS) 12B (Combat Engineer)
and later he reclassified into MOS 75B (Unit Personnel Specialist).

2.  The applicant’s record shows that he was reclassified into the
personnel administration field and served in skill level 2 (E-5) and 3 (E-
6) positions from 1987 through 1996.

3.  The applicant’s record also shows that during his active duty tenure,
he earned the Army Commendation Medal (2), Joint Service Achievement Medal,

Army Achievement Medal (2), Army Good Conduct Medal (6), National Defense
Service Medal, Noncommissioned Officer Professional Development Ribbon with
Numeral 4, Army Service Ribbon, Overseas Service Ribbon, and Global War on
Terrorism Service Medal.

4.  On 28 July 1998, a SPCM found the applicant guilty of violating Article
112a of the Uniform Code of Military Justice (UCMJ) by wrongfully using
crack cocaine between on or about 1 April 1996 and on or about 5 January
1997.  The resultant sentence included a bad conduct discharge (BCD).
5.  On 3 January 2002, the United States Army Court of Criminal Appeals set
aside the findings and sentence of the applicant’s SPCM and authorized a
rehearing.

6.  On 26 April 2002, the applicant’s command concluded a rehearing was not
practical and all rights, privileges and property of which he had been
deprived by virtue of the finding of guilty and the sentence being set
aside were restored.

7.  On 16 July 2002, Military Personnel Center, Washington D.C. Orders
Number 02-197-007 were published promoting the applicant to SSG/E-6,
effective and with a date of rank of 1 April 1997.

8.  In a 17 October 2002 application to this Board, the applicant requested
immediate promotion to SFC/E-7 and consideration for promotion to MSG/E-8
by a STAB.

9.  On 31 July 2003, the Director of the Army Board for Correction of
Military Records (ABCMR) advised the applicant by letter that coordination
with the appropriate Army elements had revealed that necessary actions to
restore his leave and to purge his military records of all documents
related to his SPCM and preparing it for consideration for promotion to
SFC/E-7 by a STAB were being accomplished.

10.  On 6 November 2003, Human Resources Command (HRC) Orders Number 310-20
were published promoting the applicant to SFC/E-7, effective and with a
date of rank of 1 May 2001.

11.  The CY 2004 MSG PSB convened on 3 February 2004, to consider all ANCOC
qualified SFCs with a date of rank of 3 October 2001 and earlier and with a
basic active service date between 3 February 1981 and 3 February 1996 for
promotion to MSG/E-8.  The primary zone of consideration was identified as
all SFC/E-7s with a date of rank of 3 February 2001 and earlier and the
secondary zone of consideration included SFCs with a date of rank of 4
February 2001 through 3 October 2001.   The results of this promotion board
show that
2.8 percent of those Soldiers in the personnel/administration career
management field (CMF 42) were selected for promotion to MSG/E-8 from the
secondary zone of consideration.

12.  The CY 2005 MSG PSB convened on 8 September 2004 to consider all ANCOC
qualified or exempted SFCs with dates of rank of 5 October 2002 and earlier
and whose BASDs were between 5 October 1981 and 5 October 1996.  The
primary zone of consideration consisted of qualified SFC/E-7s with a date
of rank of 4 October 2001 and earlier and the secondary zone of
consideration  included qualified SFC/E-7s with a date of rank of 5 October
2001 through
4 October 2002.  Of those Soldiers in CMF 42 considered for promotion in
the primary zone of consideration, 7.1 percent were selected for promotion.

13.  A review of the Army Training Requirements and Resources System
(ATRRS) reveals the applicant is scheduled to attend the ANCOC from 22 May
through 27 June 2005.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s enlisted promotion policy.  Chapter 4 contains
guidance on centralized promotions to sergeant first class (SFC), master
sergeant (MSG) and sergeant major/command sergeant major (SGM/CSM).
Paragraph 4-2 outlines the eligibility criteria for promotion to senior
noncommissioned officer grades.  It states, in pertinent part, that a SFC
must be a graduate of the ANCOC to be considered for promotion to MSG.

15.  Paragraph 4-5 of the promotions regulation provided guidance on
personal appearance and written communication to a DA promotion selection
board.  It states that Soldiers eligible for consideration may write to the
president of the promotion board to provide documents and information
drawing attention to any matter concerning themselves that they feel is
important to their consideration. Although written communication is
authorized, it is only encouraged when there is something that is not
provided in the soldier's records that the Soldier feels will have an
impact on the board's deliberations.

16.  Paragraph 4-15 of the promotion regulation contains guidance on
promotion reconsideration by a STAB.  It states, in pertinent part, that
reconsideration by a  STAB is warranted when it is determined that material
error existed in a Soldier’s OMPF when the file was reviewed by the
promotion board.

DISCUSSION AND CONCLUSIONS:

1.  The request that the applicant be promoted to MSG/E-8 by this Board and
the supporting evidence provided were carefully considered.  However, while
it appears some partial equity relief is warranted in this case, there is
an insufficient evidentiary basis to support the applicant’s promotion to
MSG/E-8 by this Board.

2.  The evidence of record shows that subsequent to his court-martial
conviction being set-aside, the applicant was promoted to SSG/E-6 and SFC/E-
7, as he requested in a 17 October 2002 application to this Board.  In that
request, he also asked that he be considered for promotion to MSG/E-8 by a
STAB.  This request remains outstanding.

3.  The applicant’s record confirms his outstanding evaluation history and
performance of duty both prior to his court-martial conviction and
subsequent to the setting aside of that conviction.  Therefore, his
promotions to SSG/E-6 and SFC/E-7 were warranted and necessary to make him
whole.

4.  However, while he deserves fair consideration for promotion to MSG/E-8,
the applicant’s automatic promotion to this senior grade by this Board
would not be fair to his peers or the Army.  Given the low selection rate
for Soldiers in CMF 42, his promotion to MSG/E-8 by either the CY 2004 or
CY 2005 MSG/E-8 PSBs can not be assumed based only on the evidence
presented to this Board.  The fair and just resolution of this issue would
be to ensure the applicant receives fair consideration for promotion to
MSG/E-8, as he originally requested in his October 2002 application to the
Board.

5.  To ensure the applicant receives fair consideration for promotion to
MSG/E-8, it is necessary for him to successfully complete the ANCOC course
he is scheduled to attend in May 2005.  If he fails to successfully
complete the ANCOC, he would not be eligible to be considered for promotion
to MSG/E-8 and no further corrective action would be warranted.

6.  If the applicant successfully completes the ANCOC in June 2005, it
would be appropriate to correct his record to show he completed the course
prior to the convening date of the CY 2004 MSG PSB that convened on 3
February 2004.  It would also serve the interest of justice and equity, as
an exception to policy, to place his records before a STAB for
consideration for promotion to MSG/E-8 under the criteria used by the CY
2004 and CY 2005 MSG/E-8 PSBs.

7.  Further, if he is selected for promotion by the STAB, the applicant
should be provided a promotion effective date and date of rank as if he had
been originally selected, and he should be provided all back pay and
allowances due as a result.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___MHM_  __SES__  __SAP __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief if the individual concerned
successfully completes the ANCOC he is scheduled to attend in May 2005.  If
he does not successfully complete this course, no further relief is
warranted in this case.  If he successfully completes this course, the
Board recommends that all Department of the Army records should be
corrected:

      a.  by showing he completed the ANCOC prior to 3 February 2004, the
convening date of the CY 2004 MSG/E-8 PSB;


      b.  by placing his records, including all NCOERs he has received as an
SFC/E-7 regardless of time periods covered, before a STAB as an exception
to policy, for promotion consideration to MSG/E-8 under the criteria used
by both the CY 2004 and CY 2005 MSG/E-8 PSBs;


      c.  if selected for promotion by the STAB, by establishing his
promotion effective date and date of rank as if he had been originally
selected; and


      d.  by providing all back pay and allowances due as a result.



2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
the immediate promotion of the individual concerned to MSG/E-8.




            ____Melvin H. Meyer____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004368                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/26                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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