RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 November 2005
      DOCKET NUMBER:   AR20050005924


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |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, promotion to sergeant major (SGM)
through correction of the Calendar Year (CY) 2004, United States Army
Reserve (USAR), Active Guard Reserve (AGR), Sergeant Major (SGM)/Command
Sergeant Major (CSM) promotion selection board.

2.  The applicant states, in effect, he was targeted with age, race and
institutional bias within the AGR promotion system.  He claims that during
his tenure of assignment in the AGR program, he has occupied the positions
of Senior Enlisted Advisor, United States Army Special Operations Command
(USASOC) and United States Army John Fitzgerald Kennedy Special Warfare
Center and School (USAJFKSWCS), both at Fort Bragg, North Carolina.  He
also states that in 1999 a Caucasian master sergeant (MSG) was selected for
promotion in his additional military occupational specialty (MOS) of 97B
(Military Intelligence) and replaced him in a 38A (Civil Affairs) position
that he had filled for thirteen months.

3.  The applicant further states that in 2003, he and another MSG were
selected to attend the United States Army Sergeants Major Academy (USASMA)
at
Fort Bliss, Texas.  Upon graduation, both were assigned to the USAJFKSWCS.
He was assigned to the senior enlisted advisor position because the
incumbent SGM was due to retire.  The CY 2004 promotion list was released
in December 2004 and the other MSG was selected for promotion, but he was
not.  In addition, a female MSG was selected her first time in the primary
zone and another MSG was selected from the secondary zone.  Both were not
USASMA graduates and were Caucasian.

4.  The applicant concludes by stating that he is a USASMA graduate, he is
the senior Civil Affairs Noncommissioned Officer (NCO) in the AGR program,
he has fourteen years time in grade as a MSG, and he is the only Black
minority who has occupied both of the senior enlisted advisor positions
identified earlier, and has not been promoted.

5.  The applicant provides the 15 documents identified on the Table of
Contents submitted with his application in support of his request.
CONSIDERATION OF EVIDENCE:

1.  As of the date the applicant applied to the Board, he was serving on
active duty as a member of the AGR program, in the rank of MSG, at Fort
Bragg,
North Carolina.

2.  On 19 October 2004, a selection board convened to select AGR Soldiers
for promotion to SGM/CSM and attendance at the USASMA.  The promotion
selection board adjourned on 1 November 2004, and the promotion selection
list was released on 9 December 2004.  The selection board results showed
that
641 Soldiers were considered for promotion to SGM and 44 were selected, a
6.9 percent selection rate.  In MOS 38A, the applicant’s MOS, 12 Soldiers
were considered and 3 were selected, a 25 percent selection rate.

3.  The applicant was not selected for promotion and he submitted an
Inspector General (IG) action request concerning his non-selection.  On 16
December 2004, the IG, Fort Bragg, informed the applicant the matters he
raised were under the jurisdiction of the United States Army Reserve
Command (USARC), Fort McPherson, Georgia, and that an officer at that
office was handling his case.

4.  On 7 January 2005, the applicant requested promotion reconsideration by
a Stand-By Advisory Board (STAB).  He based his request on the fact that he
was a USASMA graduate and was the senior Civil Affairs NCO in the AGR
program.  He further indicated that he believed he was among the best
qualified and should have been selected for promotion on that basis.

5.  On 18 January 2005, the Chief, Office of Promotions, Reserve Components
(RC), Human Resources Command (HRC)-St. Louis, responded to the applicant’s
STAB request.  This RC promotion official, after carefully reviewing the
applicant’s record, denied the applicant’s request.  He informed the
applicant that promotions were not entitlements, and thus keen competition
and varying Army needs often precluded the selection of many capable NCOs.
As a result, given there was no evidence of a material error, his request
did not meet the regulatory criteria necessary to support STAB
consideration.

6.  On 26 January 2005, the applicant requested a commander’s inquiry
regarding the CY 2004, USAR, AGR, SGM/CSM promotion selection board.  He
based his request on the fact that two of the NCOs selected in his MOS were
selected even through they were not graduates of the USASMA, and because he
believed two of the promotion board members were biased against his
selection.

7.  On 1 February 2005, the commanding general (CG), USAJFKSWCS passed the
applicant’s commander’s inquiry request on to HRC-St. Louis promotion
officials.

8.  On 9 February 2005, the Chief, Officer of Promotions, HRC-St. Louis
replied to the commander’s inquiry request.  He indicated that Department
of the Army (DA) centralized promotion boards are comprised of members who
are selected for their maturity, judgment, and freedom from bias.  He
further stated that the specific reasons for selection or non-selection are
not known as DA guidance does not task selection boards to itemize these
reasons.

9.  The Chief, Office of Promotions goes on to state that the selection
board recommendations are based on the collective best judgment of the
board members, which are made in accordance with the detailed written
guidance provided by DA, which is issued prior to when deliberations begin.
 He further stated that the reasons for the selection of the two Soldiers
mentioned by the applicant could also not be ascertained for the same
reasons.  He concluded by indicating that while the applicant’s frustration
was understandable, promotions are not mandatory, and thus keen competition
and varying Army needs often preclude the selection of many capable NCOs.

10.  On 1 March 2005, the IG, HRC-St. Louis, provided the final IG reply to
the applicant’s request for IG assistance regarding his non-selection for
promotion to SGM.  The IG found the applicant was afforded due process in
the promotion selection process, and that the promotion selection board had
adhered to regulation and instructions to select “best qualified” Soldiers
and did not violate any standard by selected Soldiers from the primary or
secondary zone of consideration.

11.  On 14 March 2005, the applicant submitted a equal opportunity (EO)
complaint of racial discrimination to the CG, USAJFKSWCS.  He alleged
racial discrimination on the part of the CY 2004, USAR, AGR, SGM/CSM
promotion selection board, and the CY 1999, USAR, AGR, SGM promotion
selection board.

12.  In a 16 March 2005 memorandum, the USAJFKSWCS EO advisor outlined the
facts of the case.  He confirmed that the HRC-St. Louis IG found that NCOs
were not being improperly selected for promotion to SGM; and that the CG,
USAJFKSWCS initiated a commander’s inquiry, which he addressed to promotion
officials at HRC-St. Louis.  The EO advisor concluded that the commander’s
inquiry should have been addressed to the Director of Military Personnel
Policy, Office of the Army G-1 in the Pentagon because a general officer
inquiry deserved a commensurate and proportional response.  He indicated
that he did not question the integrity of HRC-St. Louis promotion
officials, but that their handling the case could be a possible conflict of
interest.

13.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief, Promotions Branch, Office of Promotions, RC,
HRC-St. Louis.  This RC promotion official states that promotion selection
boards are governed by Army regulatory policy, and members are selected for
their maturity, judgment and freedom from bias.  He further confirms that
specific reasons for selection and/or non-selection are not known because
DA policy does not require board members to record their reasons.  He
further indicates that the selection board’s recommendations are based on
the collective best judgment of its members in accordance with the DA
guidance it receives before deliberations begin.  He concludes by stating
that while the applicant’s frustration is understood, promotions are not
mandatory and thus keen competition and varying Army needs often preclude
promotion of many capable NCOs.

14.  On 1 September 2005, the applicant submitted a rebuttal to the
HRC-St. Louis advisory opinion.  He states that HRC-St. Louis promotion
officials failed to address the key issues and questions he previously
submitted.  He claims the IG failed to conduct a proper investigation on
his complaint regarding the CY 1999 selection list and now the 2004
selection list.  He further states the EO officer at HRC-St. Louis failed
to answer his complaint and the STAB failed to complete its mission.  He
further states that Army officials also elected to answer a Congressional
Inquiry in the same manner.  The applicant again outlines his
qualifications for promotion and the positions he held and served in at the
time of the 1999 and 2004 promotion boards.  He also states he had a
conversation with a CSM, a member of the promotions selection board, who
indicated that if he could have an investigation on the selection board
results, she would come forward with important information regarding
inconsistencies.

15.  The Memorandum of Instructions (MOI) for the CY 2004 AGR SGM/CSM
selection board contained specific written guidance on EO.  The MOI stated
that the success of the today’s Army comes from total commitment to the
ideals of freedom, fairness, and human dignity upon which our country was
founded.  It further advised board members that they must be alert to the
possibility of past personal or institutional discrimination, whether
intentional or inadvertent, in assignment patterns, evaluations, or
professional development of NCOs.  The MOI also indicated the EO guidance
should be taken into consideration in assessing the degree to which an NCOs
record, as a whole, is an accurate reflection, free of bias, of the NCO’s
performance potential.

16.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion,
and Reduction) prescribes the policy and procedures governing the
classification, advancement, promotion, reduction, and grade restoration of
applicable USAR Soldiers.  Section III contains guidance on the centralized
promotion system for USAR AGR Soldiers for promotion to staff sergeant
(SSG), sergeant first class (SFC), MSG and SGM.

17.  Paragraph 4-12 of the USAR enlisted promotion regulation contains
guidance on selection boards.  It states that selections by DA selection
boards will be based on impartial consideration of all eligible Soldiers in
the announced zone.  Boards will select the "best qualified" Soldier in
each MOS for promotion to SSG through SGM.  They will recommend a specified
number of Soldiers by MOS from the zones of consideration who are the best
qualified to meet the current and projected needs of the USAR AGR program.
The total number which may be selected in each MOS is based on USAR AGR
requirements to fill current and projected position vacancies.  These
requirements are announced in the MOI or a DA message.  It further states
that Soldiers will not be given specific reasons for nonselection.  Board
members may neither record nor give reasons for selection or nonselection
of individual Soldiers.  Selections are based on relative qualifications
and the projected need in each MOS.

18.  Paragraph 4-18 of the same regulation contains guidance on STABs.  It
states that the STAB will consider Soldiers who were not considered from
the primary zone or secondary zone by a regular board.  A Soldier in the
primary zone will be considered by a STAB if the record reviewed by the
regular board was not properly constituted due to a material error.  An
error is material when, in the judgment of a mature individual familiar
with selection board proceedings, a reasonable chance exists that had the
error not existed, the Soldier may have been selected.  Soldiers requesting
reconsideration normally will be granted reconsideration only for the most
recent board held prior to the Soldier's request. In other words, the
Soldier will be given reconsideration for only one board.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his non-selection for promotion to SGM
by the CY 2004 USAR AGR SGM/CSM promotion selection board was the result of
racial prejudice, and the supporting documents he submitted were carefully
considered. However, while the Board would never let stand an action that
resulted from racial discrimination, there is insufficient evidence of
record that suggests the applicant’s non-selection for promotion was the
result of racial, or any other bias.

2.  DA written EO instructions were contained in the MOI provided board
members prior to the convening of the selection board.  Absent any specific
evidence of bias on the part of any member of the selection board, it is
presumed the members complied with these instructions and that the
applicant’s
non-selection was in no way based on racial discrimination.  Although the
applicant claims a promotion board member indicated to him there was bias
against his selection, he fails to provide a statement from this CSM, or
from anyone else that supports a conclusion that promotion selection board
members acted improperly.

3.  The evidence of record also confirms the applicant was properly
considered for promotion with his peers, and as a result he was clearly
provided due process in the promotion selection process, as confirmed in
numerous investigations completed by the IG, EO and other interested
officials.

4.  None of the extensive reviews of the applicant’s case have resulted in
any substantiated findings of error or injustice based on racial, or any
other prejudices.  While the applicant clearly believes he is better
qualified than the Soldiers selected for promotion to SGM in his MOS since
1999, this is not supported by the collective best judgment of the
promotion selection board members who sat on these various boards, who are
tasked with the responsibility to select the “best qualified” NCOs for
promotion.

5.  The promotion selection board members in question were selected by DA
based on their maturity, judgment and freedom from bias.  The applicant’s
continued assertions of racial prejudice, absent any evidence to support
his claims, does not provide a sufficient evidentiary basis to call into
question the integrity of these promotion board members.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK __  __DJA __  ___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.




            ____Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005924                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/08                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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