RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 April 2005
      DOCKET NUMBER:  AR20040005402


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 his records be corrected to
show he was promoted to Sergeant Major (SGM), E-9 when he first became
eligible, with all due back pay and allowances.

2.  The applicant states that, after the illegal bullet was deleted from
his Noncommissioned Officer Evaluation Report (NCOER), the Enlisted Special
Review Board (ESRB) said that he did not warrant promotion consideration.
Yet, the very next promotion board finally promoted him to Master Sergeant
(MSG), E-8.  He contends that the bullet biased all the boards who saw it
and as soon as it was deleted from his file he was promoted.  He would
gladly serve as a Sergeant Major.

3.  The applicant provides his NCOER appeal with the ESRB Case Summary and
related U. S. Army Enlisted Records and Evaluation Center documentation; a
copy of Gregory C. Porter v. The United States, 163 F.3d 1304, 1998 (Fed.
Cir. 1998); a copy of Stephen W. Richey v. United States, 322 F.3d 1317,
2003 (Fed. Cir. 2003); the memorandum of instruction for the calendar year
2000 MSG selection board; a 3-page request for Standby Advisory Board
(STAB) consideration dated 11 May 2000; a reply to his request for a STAB
dated           2 October 2000; his DA Form 2-1 (Personnel Qualification
Record); his Enlisted Record Brief; a memorandum for record dated 21
December 2000; a memorandum dated 16 August 2002; and a memorandum dated 27
November 2002.

4.  The applicant also provides a memorandum dated 4 August 1998; a DA Form
3349 (Physical Profile) and related medical documents; two letters of
recommendation, one dated 18 October 1999 and one dated 3 November 1999;
a memorandum dated 27 November 1996 with two attached DA Forms 3349 (dated
15 January 1997 and 23 April 1996) and a related fax cover sheet; a     DA
Form 3349 dated 26 November 1996; a memorandum for record dated       12
August 1997, with a DA Form 3349 dated 15 January 1999, and a related
medical document; a 3-page, undated, request for written letter of
documentation for NCOER Appeals Board Actions; a memorandum, Subject:
Medical Examination, dated 9 October 1996; copies of his medical records;
copies of his NCOERs, and a copy of his official photograph.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U. S. Marine Corps, the applicant
enlisted in the U. S. Army Reserve on 23 September 1978.  He was
voluntarily ordered to extended active duty around February 1986.  On an
unknown date, he enlisted  in the Regular Army.  He was promoted to
Sergeant First Class, E-7 on               1 November 1988 in military
occupational specialty (MOS) 18B (Special Forces Weapons Sergeant).

2.  Part IVc of the applicant's NCOER for the period ending December 1995
indicated he had a profile effective December 1994 and contained the
comment, "SM is currently awaiting results of Medical Evaluation Board."
The applicant signed the NCOER on 18 January 1996.

3.  On 23 April 1996, the applicant was given a temporary L3 profile for
having a spinal fusion.

4.  Part IVc of the applicant's NCOER for the period ending June 1996
indicated he had a profile effective December 1994 and contained the
comments, "SM was on profile due to chronic back injury during the entire
rating period;" "diligently conducted PT within the limits of profile;" and
"profile does not interfere with assigned duties."

5.  The 9 October 1996 memorandum, Subject:  Medical Examination, provided
by the applicant indicated he was incorrectly listed as having a permanent
         L3 profile for the lower extremities.

6.  On 26 November 1996, the applicant was given a temporary L3 profile due
to having a spinal fusion.

7.  By memorandum dated 27 November 1996, the Director, Spine Surgery
Service, Walter Reed Army Medical Center indicated the applicant underwent
a spinal fusion and was recovering quite well.  The applicant had not yet
been cleared for return to full duty but the Director expected to determine
a final disposition in January 1997, with a [permanent L2] profile, and,
were he required to deploy and perform his mission in the interim, the
applicant was fully functional.

8.  On 15 January 1997, the applicant was given a permanent L2 profile.
His only assignment limitations were no situps.

9.  Part IVc of the applicant's NCOER for the period ending June 1997
indicated he passed the Army Physical Fitness Test (APFT) in March 1997 and
included the comment, "overcame a fractured spine and returned to jump
status this period."

10.  Part IVc of the applicant's NCOER for the period ending June 1998
indicated he passed the APFT in December 1997 and contained the comments,
"displays stamina needed to work long difficult hours" and "continuously
strives to improve physical condition on and off duty."

11.  Part IVc of the applicant's NCOER for the period ending June 1999
indicated he passed the APFT in May 1999 and included the comment,
"maintains rigorous physical fitness program."

12.  Part IVc of the applicant's NCOER for the period ending December 1999
indicated he passed the APFT in May 1999 and included the comment, "scored
292 on the APFT at 6000 feet of elevation."

13.  On 11 May 2000, the applicant requested promotion reconsideration due
to the fact one NCOER (for the period ending June 1996) was not in his
records and that a subsequent report (for the period ending December 1999)
was delayed in processing due to the absence of the previous report.  By
memorandum dated 2 October 2000, his request was denied because a review of
his Official Military Personnel File (OMPF) revealed the June 1996 NCOER
was posted and was seen by the promotion selection board.  In addition, the
December 1999 NCOER was not received until after the promotion board had
convened.

14.  Part IVc of the applicant's NCOER for the period ending December 2000
indicated he passed the APFT in August 2000 and included the comments,
"scored 280 on the APFT at over 6000 feet" and "completed rigorous cold
weather exercise including 15K mountainous movement through snow and a
grueling 18-hour POW scenario."

15.  By memorandum dated 21 December 2000, the applicant appealed the NCOER
for the period ending December 1995 on the grounds of bias and substantive
inaccuracy.  He contended that the comment (on the NCOER for the period
ending December 1995), "currently awaiting results of a Medical Evaluation
Board" was illegal (because it was "pending" it was outside the timeframe
of the NCOER) and, since he never was pending a Medical Evaluation Board, a
false statement.  The NCOER for the period ending December 1995 had been
seen by the MSG promotion selection boards in January 1996, January 1997,
February 1998, February 1999, and February 2000.

16.  Part IVc of the applicant's NCOER for the period ending August 2001
indicated he passed the APFT in August 2001 and included the comments, "In
top physical condition; pushes his body daily to improve endurance and
stamina; scored 300 on APFT" and "as mentally tough as he is physically."

17.  Around November 2001, the ESRB partially approved the applicant's
appeal, after opining that the bullet comment was inaccurate because it was
unverified derogatory information, by amending the NCOER for the period
ending December 1995 to remove the inaccurate bullet comment in Part IVc.
The ESRB also stated that promotion reconsideration was not warranted.

18.  The applicant was selected for promotion to MSG, E-8 by the promotion
board that convened on 5 February 2002 and adjourned on 27 February 2002.

19.  On 1 June 2002, the applicant was promoted to MSG, E-8 in MOS 18Z
(Special Forces Senior Sergeant).

20.  On 16 August 2002, the applicant requested a STAB due to the amendment
of his NCOER for the period ending December 1995.  On 27 November 2002, his
servicing personnel service battalion returned his request without action,
citing the ESRB's November 2001 determination that promotion
reconsideration was not warranted.

21.  In support of his application, the applicant provided two Fed. Cir.
Court decisions, both on the same issue of officer promotion passovers and
corrections boards (one Air Force and one Army) referring the cases to
special selection boards without also voiding the officers' initial
passovers.  In one, he highlighted several sections, including the section
that stated, "…an order of the United States Court of Federal Claims that
held the Air Force Board for the Correction of Military Records (air board)
acted arbitrarily when it referred the officer's case to a special
selection board (SSB), without also voiding his initial passovers…"

22.  The applicant had failed to highlight that portion of the Fed. Cir.
Court opinion which stated, "Essentially in agreement with the government's
arguments in this appeal, we hold that the court of Federal claims erred in
its assessment of the legal authority of the Air Board.  Because the Air
Board was authorized to correct Porter's record and recommend use of SSBs
to consider Porter's promotion prospects in light of the corrections
without also recommending voidance of Porter's previous discharge mandating
passovers, Porter is not entitled to back pay and related benefits."  He
failed to highlight the disposition of that case, "Judgment of the Court of
Federal claims reversed."

23.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was promoted to MSG by the very next
promotion board after the ESRB had said that he did not warrant promotion
consideration has been carefully considered.

2.  The timing of the applicant's promotion considerations has also been
carefully considered.  He was considered for promotion selection boards in
January 1996, January 1997, February 1998, February 1999, and February 2000
(and presumably around February 2001).  All of those boards met during
periods the Army was downsizing.  He was finally selected for promotion to
MSG by the board that convened on 5 February 2002.  That was after the ESRB
had amended his NCOER for the period ending December 1995.  However, it was
also after the attacks of 11 September 2001, during a time when downsizing
stopped and the Army started to build up again, especially in career
management fields such as the applicant's, Special Forces.

3.  The Board also notes that the applicant's NCOERs subsequent to the
December 1995 NCOER no longer contained the comment that he was pending a
Medical Evaluation Board.  His NCOER for the period ending June 1996
included comments that he "diligently conducted PT within the limits of
profile" and "profile does not interfere with assigned duties."  His NCOER
for the period ending June 1997 included the comment, "overcame a fractured
spine and returned to jump status this period."

4.  Senior commissioned officers and NCOs sit as members of centralized
promotion boards.  The Board concludes that those members were sufficiently
aware that phrases such as "profile does not interfere with assigned
duties" and "returned to jump status this period" clearly indicated the
applicant was no longer pending separation due to physical disabilities, if
he ever was.  The Board concludes that if the promotion selection boards in
January 1997 and later did not recommend him for promotion after seeing
later NCOERs with these comments on them, then it was unlikely he was not
selected for promotion solely because that bullet comment was on his
December 1995 NCOER.

5.  The decisions of the Court of Appeals for the Federal Circuit provided
by the applicant do not apply in his case.

6.  There is insufficient evidence to show that the error on the
applicant's December 1995 NCOER caused his nonselection by any of the MSG
promotion selection boards that considered him prior to the February 2002
board or that, had the error been corrected at the time he was considered,
a reasonable chance would have resulted in his being recommended for
promotion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __rtd___  __drt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ___Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005401                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050421                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]