RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070012829 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 correction of his records by backdating his promotion to master sergeant (MSG)/pay grade E-8 from the Fiscal Year (FY) 2005 MSG Promotion Selection Board.  He also requests retroactive pay and allowances.

2.  The applicant states, in effect, that had it not been for the derogatory Noncommissioned Officer Evaluation Report (NCOER) in his record for the September 2003 through May 2004, he would have been promoted to
MSG/E-8 by the FY05 Promotion Selection Board.  He further adds that his request is based on a reprisal suffered due to this derogatory NCOER.  After three attempts to appeal this NCOER using the Army redress system, the Enlisted Special Review Board (ESRB) finally determined his record contained material errors and initially removed the "Reviewer" comments and made administrative adjustments to the NCOER.  

3.  The applicant states, in effect, that he requested promotion reconsideration to MSG/E-8 under the FY05 Promotion Selection Board criteria due to the removal of the "Senior Rater" comments from the NCOER, but the ESRB refused.  He also adds that he was selected for promotion to MSG/E-8 the very next year by the FY06 Promotion Selection Board despite having the derogatory NCOER on file.  He concludes that this NCOER was "strategically and successfully maneuvered" to ensure his non-selection for promotion.  He also concludes that the Promotion Selection Board "first looks for reasons not to promote and that since this derogatory NCOER was the most up to date entry on his file, it would have certainly landed him in the do not promote pile."

4.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Change of Address memorandum informing the Board of his upcoming retirement from the Army and relocation to a new address.

	b.  Personnel Data Snapshot, dated 8 September 2007, of the applicant's prior NCOERs by type and processing dates.

	c.  DA Form 2166-8 (NCO Evaluation Report ), for the period September 2003 through May 2004.

	d.  Memorandum, dated 27 September 2004, U.S. Army Enlisted Records and Evaluation Center (USAEREC), Indianapolis, Indiana, rejecting the applicant's first appeal of the NCOER. 
	e.  Report of Investigative Inquiry, dated 25 January 2005, Office of the Inspector General, Washington, D.C.

	f.  Memorandum, dated 7 September 2005, Applicant's second Request to USAEREC for Reconsideration of Evaluation Report Appeal.

	g.  Memorandum, dated 27 October 2005, USAEREC, Indianapolis, Indiana, response to applicant's second request; partial approval of NCOER appeal and rejection of promotion reconsideration.

	h.  Memorandum, dated 6 February 2007, Applicant's Request to USAEREC for Reconsideration of Evaluation Report Appeal.

	i.  Memorandum, dated 26 April 2007, USAEREC, Indianapolis, Indiana, response to applicant's third request; partial approval of appeal and rejection of promotion reconsideration.

	j.  Applicant's Enlisted Record Brief (ERB).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he is a MSG/E-8 who enlisted in the Regular Army on 13 December 1984 and held military occupational specialty (MOS) 63Z (Senior Wheeled Vehicle Mechanic).  His date of rank to sergeant first class (SFC)/E-7 was 1 August 2001.  He competed for promotion to MSG/E-8 in the primary zone during both the FY05 and FY06 MSG Promotion Selection Boards.

2.  The applicant's records show that he arrived in Germany on 15 June 2001 and was assigned as a platoon sergeant with the 584th Supply Company, 319th Corps Support Battalion, 12th Corps Support Command. 

3.  On 11 July 2004, the applicant was reassigned to Headquarters and Headquarters Company, 172nd Corps Support Group (CSG).  This reassignment generated a "Change of Rater" NCOER in accordance with Army Regulation 623-205 (Evaluation Reporting System).  

4.  On 13 August 2004, the applicant's rating officials rendered an NCOER for the period September 2003 through May 2004. 



5.  On 9 August 2004, the applicant submitted a memorandum to the commander, 172nd Corps Support Command, requesting a Commander's Inquiry for his September 2003 through May 2004 NCOER.  He stated that the senior rater's negative comments as well as the reviewer's non-concurrence on his NCOER were retaliatory and resulted from an Inspector General complaint he and other unit leaders filed against his senior rater and the unit command team, that subsequently led to an IG investigation.

6.  On 16 September 2004, after looking into the matter, the Commander, 172nd Corps Support Command informed the applicant that he found no errors, injustices, or illegalities.  The Commander also found no substantive inaccuracies in the senior rater comments or the reviewer's non-concurrence, and informed the applicant that there was no further action warranted.

7.  On 4 November 2004, Army Human Resources Command, Alexandria, Virginia, released the results of the FY05 MSG Promotion Selection Board that convened on 8 September 2004.  The applicant was not selected for promotion to MSG/E-8.

8.  On an unknown date, the applicant submitted an appeal of this 9-month change of rater evaluation report to USAREC, Indianapolis, Indiana.  His appeal was based on his contention that the evaluation report contained substantive inaccuracies.  However, by memorandum dated 27 September 2004, USAEREC informed the applicant that his appeal did not include certified true copies of his record; was missing documentation showing he requested a Commander's Inquiry or an IG complaint; and that his cover letter was not formatted to concisely explain the corrective action he was seeking.

9.  On 7 September 2005, the applicant submitted his second appeal for the      9-month evaluation report for the period September 2003 through May 2004.  His appeal was based on his contention that the report contained administrative and substantive errors and requested the NCOER be deleted or amended.  He contended that his date of rank was incorrect, he was ordered to sign the NCOER by the Command Sergeant Major (CSM), the Commander's Inquiry was in violation of paragraph 6-3 of Army Regulation 623-205, the senior rater rating, and the reviewer's non-concurrence.  Additionally, the applicant requested reconsideration for promotion to MSG/E-8 by a Standby Selection Board in an effort to parallel his promotion to MSG/E-8 with his peers from the FY05 MSG Promotion selection Board. 


10.  On 27 October 2005, USAEREC responded to the applicant by memorandum informing him that the ESRB justified an amendment rather than a deletion of his report and therefore directed a partial approval of the appeal.  Accordingly, USAEREC corrected the applicant's date of rank, and removed the reviewer's non-concurrence statement. Promotion reconsideration was not approved because the ESRB was not convinced that there would have been a reasonable chance for the applicant's selection for promotion had the correction to his NCOER been made before the FY05 MSG Promotion Selection Board convened.

11.  On 18 November 2006, Army Human Resources Command, Alexandria, Virginia, released the results of the FY06 MSG Promotion Selection Board that convened on 4 October 2005.  The applicant was selected for promotion to MSG/E-8.  His promotion to MSG/E-8 was effective 1 January 2006.

12.  On 20 December 2006, the applicant received a copy of the Office of the Inspector General, Washington, D.C., Report of Investigation.

13.  On 6 February 2007, the applicant submitted his third appeal of this 9-month change of rater evaluation report to USAREC, Indianapolis, Indiana, based on new evidence (The IG's Report of Investigation).  The applicant contested the senior rater portion of the NCOER and requested promotion reconsideration.

14.  On 26 April 2007, USAEREC responded to the applicant by memorandum informing him that the ESRB justified an amendment rather than a deletion of his report and therefore directed a partial approval of the appeal.  Accordingly, USAEREC removed the senior rater portion of the contested NCOER.  Promotion reconsideration was, again, not approved because the ESRB was not convinced that there would have been a reasonable chance for the applicant's selection for promotion had the correction to his NCOER been made before the FY05 MSG Promotion Selection Board convened.

15.  Army Regulation 623-205 (at the time) established policy and procedures governing the Noncommissioned Officers Evaluation Reporting System (NCOERS).  Paragraph 1-5 of this regulation stated that the purpose of the NCOERS is to:  (1) strengthen the ability of the NCO Corps to meet the professional challenges of the future through the inculcation of Army values and basic NCO responsibilities; (2) Ensure the selection of the best qualified NCOs to serve in positions of increasing responsibility by providing rating chain review of performance and potential for use in centralized selection, assignment and other enlisted personnel management decisions; and (3) Contribute to Army-wide improved performance and professional development by increased emphasis on performance counseling.

16.  Chapter 4 of Army Regulation 623-205 sets the policies and procedures for the appeals systems.  It states, in pertinent part, that substantive appeals must be submitted within 5 years of the NCOER’s completion date.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  If the appeal is denied, an appellant may request reconsideration, seek new additional evidence and submit a new appeal, or the Soldier may appeal to the next agency in the Army’s redress system.

17.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 4-14 of this regulation states that a Standby Advisory Board (STAB) is convened to consider records of those Soldiers (1) From the primary and secondary zones not reviewed by a regular board; (2) From a primary zone that was not properly constituted, due to a material error, when reviewed by the regular board; (3) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list; (4) Selected for appointment to CSM but were referred by the CSM Review Board because of derogatory information that was identified during the post-board screening process; or (5) Not considered for appointment to CSM only when it was predicated on obvious intent of the Soldier to be considered and clear negligence in the administrative process results in the Soldier’s non-consideration.

18.  Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their seniority sequence number is reached.  Only Soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion.  Soldiers who were considered in a secondary zone will not be reconsidered.  Reconsideration normally will be granted when the following condition existed on the Soldier’s Official Military Personnel File (OMPF) at the time it was reviewed by a promotion selection board:  an adverse NCOER or AER reviewed by a board was subsequently declared invalid in whole or in part and was determined by the SRB to constitute a material error.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that had the derogatory NCOER not been filed in his records when the FY05 MSG Promotion Selection Board convened, he would have been selected for promotion by that board, with his peers, instead of the future FY06 board. 

2.  The evidence of record shows that the applicant submitted an appeal of his NCOER on an unknown date in September 2004.  However, the applicant did not comply with the regulation and was advised by the USAREC memorandum of the requirements to submit that appeal.  It took the applicant almost a whole year to submit his NCOER correctly (7 September 2005).

3.  The evidence of record also shows that the Enlisted Special Review Board determined, on two separate occasions, that it was not convinced that there would have been a reasonable chance for the applicant's selection for promotion had the correction to his NCOER been made before the FY05 MSG Promotion Selection Board convened.

4.  Evidence of records also shows that the applicant was selected for promotion to MSG/E-8 during the FY06 MSG Promotion Selection Board although the derogatory NCOER was still filed in his OMPF.  Promotion Selection Boards base their decisions to promote on the "Total Soldier Concept", not a single NCOER.  There is no evidence that the FY05 or the FY06 MSG Promotion Selection Boards based their decisions to select or not-select based on one single NCOER. 

5.  In view of the foregoing evidence, the applicant is not entitled to a relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __mjf___  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




							Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070012829
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.