IN THE CASE OF:	  

		BOARD DATE:	       20 November 2008

		DOCKET NUMBER:  AR20070018306 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers his request, statement, and submission of documentation to his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  that the applicant be promoted to sergeant first class (SFC) with a date of rank (DOR) comparable with that assigned to his peers or 1 October 2005;

	b.  that the applicant be issued back pay and allowances appropriate with the DOR of 1 October 2005; 

	c.  removal from the Official Military Personnel File (OMPF) the DA Form 2166-8 (Noncommissioned Officer Evaluation Report [NCOER]) for the period covering July 2002 through June 2004; and 

	d.  direct that no negative assumptions be made based on the absence of the NCOERs for the period July 2002 through June 2004.

2.  Counsel submits a 12-page document wherein he sets forth the following arguments:

	a.  the applicant "has never been disciplined nor has he received any adverse counseling during his career.  His primary military occupational specialty (MOS) is 42A3O, Administration.  SSG S_____ has consistently displayed the leadership skills necessary for promotion and success in the Army.  He has completed all requisite leadership and educational programs necessary for consideration by an SFC selection board.  SSG S_____ has maintained an up-to-date OMPF for consideration by SFC selection boards, with the exception of the FY04 [fiscal year] and FY05 SFC Selection Boards, which were due to a leadership failure and not something in his control."

	b.  "SSG S_____ was never provided an annual NCOER from July 2002 through June 2003, his annual reporting period.  SSG S_____ was for all purposes not competitive for the FY04 SFC Selection Board - a board for which he would have had approximately 3 1/2 years time in grade (TIG).  Further, he was not provided a separate annual report for the period July 2003 through June 2004.  Instead, SSG S_____ was provided an NCOER covering a 2-year period from July 2002 through June 2004 that was not signed until 15 December 2004.  This NCOER was provided to him 6 months after the end date of the evaluation period and after the convening of the FY05 SFC Selection Board.  SSG S_____ was in the "primary zone" for the FY05 Selection Board.  As a result, due to circumstances out of his control, SSG S_____ was for all purposes not competitive for another SFC selection board.  This second missed opportunity occurred at a time when he was in the primary zone and the most competitive based on TIG and other factors."

	c.  the applicant's "…temporary mental illness placed him in a position (and he was treated in a manner) that detrimentally impacted his otherwise promising career.  It is a fact that those with a mental illness, including as here, depression, are treated differently.  Improper differential treatment is the only reasonable explanation for the blatant mishandling of an otherwise exceptionally qualified NCO, except perhaps for a senior NCO failing to properly look after a Soldier.  Due in part to the stigma of mental illness, the applicant was placed in a non-specific job position, under poor leadership, and remained under such conditions for almost 2 years.  Moreover, SSG S_____'s company leadership and battalion administration failed to comply with very basic procedures, policies, and guidance for initiating, preparing, verifying correctness and completeness, and then submitting proper and timely annual NCOERs for the periods July 2002 through June 2003 and July 2003 through June 2004."

	d.  "…the leadership, both officer and enlisted, failed to follow Army Regulation for NCO evaluations and therefore failed to properly document SSG S_____'s performance.  This wholly unavailable failure is directly connected to his failure of promotion to SFC.  Although temporarily transferred to the company 
due to mental health reasons, this temporary transfer remained in place for

2 years and well past the time he was determined fit for full duty.  This 2-year "holding" period crippled his promotion opportunity.  Even after being determined fit for full duty, SSG S_____ waited for his clearance to be restored, yet was for all other purposes fit to perform in his MOS";

   e.  the applicant's file went before the promotion boards for the regularly convened SFC Promotion Boards for FY03, FY04, FY05, and FY06 and he was not selected for promotion due to the missing NCOERs; 
   
   f.  a recommendation to refer the case to a standby advisory board (STAB) will not remedy the injustice nor provide fitting relief because without the proper NCOERs the promotion system is prejudiced against the applicant; and
   
   g.  based on the above factors, only by the Board's direct action of promoting the applicant to SFC with a DOR 1 October 2005 and directing he receive retroactive entitlement to pay and allowances, can the applicant receive thorough and fitting relief.
   
3.  Counsel provides a 12-page argument outlining the applicant's situation and the actions taken during the period in question.  The supporting documentation includes copies of medical records (Exhibits C – L) prepared in relation to the processing of the applicant's MEB review; an article titled The Psychological Needs of U.S. Military Service Members and Their Families (Exhibit Q); the applicant's NCOERs (Exhibits A & R); the Memorandum of Instruction for the FY05 and FY06 SFC Promotion Boards (Exhibits B & M); Promotion Board Operations Brief (Exhibit S); a Field After Actions Report for the FY05 and FY06 SFC Selection Boards (Exhibits T & U); three letters of reference (Exhibits N – P); and documents related to awards (Exhibits V – Z). 

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 13 September 1988 and had continuous service with a normal career progression through his promotion to SSG on 1 May 2000.  He was originally awarded the military occupational specialty (MOS) of 42A, Military Personnel Specialist.  During his career the applicant has served in a number of related fields including MOS 71L (Administrative Specialist) and 42L (Human Resources NCO).  He is currently again serving in MOS 42A (Human Resources NCO) for Office of the Army Chief Information Officer (CIO) G-6 at the Pentagon. 




2.  The record shows that in late June or early July 2002, the applicant’s wife contacted his command alleging that the applicant was being abusive.  He was ordered not to have any contact with his wife and took up residence in the post quarters.  The abuse incident was investigated and it was found that it was the applicant's wife who was being abusive, not the applicant. 

3.  The applicant was hospitalized from 3 to 5 July 2002 for depression, placed on medication, and referred for follow-up outpatient treatment.  This care was provided by Colonel (COL) D____ C____.  

4.  The applicant reported the prescription medication was causing significant side effects including suicidal ideation.

5.  On 1 August 2002, the applicant, after being reported absent from duty was found in bed in a lethargic state.  He was taken first to Behavioral Health Clinic and then transferred to the emergency room where he was admitted for inpatient psychiatric care.

6.  On 21 August 2002 he was discharged from the hospital and returned to his command.  

7.  A medical examination for a Medical Evaluation Board (MEB) Proceeding was completed and signed by CPT K____ M____, on behalf of the attending psychiatrist CPT F____ P____.  The applicant was considered medically unacceptable for further service and it was recommended he be referred to a Physical Evaluation Board (PEB) for final determination.  The diagnosis was listed as severe, single episode, major depressive disorder.

8.  At the time of his hospitalization, the applicant was serving in the Sensitive Compartmented Information Facility.  Counsel states that CPT F____ P____ had revoked the applicant's security clearance at some point during his period of hospitalization.  This action resulted in the applicant being reassigned to duties out of his MOS and into the duty position of barracks NCO for the administrative holding company.  

9.  The available information in the applicant's iPERMS (interactive Personnel Electronic Records Management System) file is incomplete.  The iPERMS record currently shows that his "security eligibility" as "classified data access suspended" with a date of eligibility of 11 September 2003 and that some type of security investigation was completed on 7 October 2002.


10.  The available records show that, except for his period of hospitalization, the applicant was under the care of COL D____ C____.

11.  A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) was prepared on 1 October 2002.  The board again rendered the diagnosis of severe, single episode, major depressive disorder and again recommended that the 
applicant be referred to a PEB.  The applicant concurred with the findings and recommendation of the MEB.  On 10 October 2002 the approving authority approved the MEB recommendations and referred the case to the PEB.

12.  On 10 October 2002 the applicant received a permanent profile that included limitations of no access to weapons or classified documents.  It was stated that the restrictions required a change of the applicant's MOS.  This profile remained in effect until 24 March 2003 when all restrictions were lifted.

13.  The applicant continued to receive outpatient care from COL D____ C____, who formally disagreed with the MEB.  On 5 February 2003 COL D___ C___ opined that the applicant was in full remission, fully able to meet physical training standards, and to perform all duties required by his MOS.

14.  Due to the differences of medical opinion as to the severity and prognosis of the applicant's condition, his case was referred to the Physical Evaluation Determination (PED) Liaison Office.  On 31 March 2003, based on that review it was determined that referral to a PEB was not warranted and all previous restrictions were removed.

15.  At some undocumented date in early 2004 First Sergeant (1SG) S____, who had been the applicant's company first sergeant during the period he was assigned as the barracks NCO, transferred out and 1SG R____ M____ was assigned as the company first sergeant.  Shortly after this change of personnel, the applicant was reassigned to duties as the Company Administrative NCO.  

16.  After observing the applicant for 3 months, 1SG R____ M____ prepared an NCOER.  This evaluation is marked as a change of rater evaluation and covers the period July 2002 through June 2004 with 3 months marked as rated and 21 months as unrated.  It is reported that 1SG R____ M____ signed the NCOER as both the rater and senior rater because the applicant's assigned rater had been reduced in rank.  The signatures are date stamped as 15 December 2004, 6 months after the end date of the report.



17.  A statement from a colonel who purports to have been his supervisor for the period from October 1999 through his 2002 hospitalization states the applicant's security clearance was restored and he was transferred to the Administrative Support Center, CIO/G-6 in April 2005.

18.  A 6 January 2008 statement from Sergeant Major (SGM) R____ P____ states that the applicant's NCOER for the period of July 2002 through June 2004 was based on a 90-day rating period by the SGM with a 21-month non-rated period.  The 21 months of non-rated time was due to the fact that two of the applicant's previous supervisors were precluded from rating him due to the fact that they were both under charges and ultimately discharged.  

19.  The exact date the applicant transferred out of the holding company is not of record.  

20.  A review of the applicant's NCOERs show that, from the time he was promoted to SSG, he has had six evaluations including the contested one.  The contested NCOER rated him "Fully Capable" with a senior rater's rating of "2."  On the other NCOERs, he is rated as "Among the Best" on four of them and "Fully Capable" on one.  He received a "1" level rating from his senior rater on four of the NCOERS with a "2" rating on the NCOER prepared covering the period just prior to the contested NCOER.

21.  In the development of this case an advisory opinion was received from the Army Human Resources Command (HRC), Chief, Promotions Branch, dated
23 January 2008.  It states that within the scope of that agency’s authority, partial relief was warranted and would be granted by affording the applicant a STAB under the promotion criteria for fiscal year (FY) 2005.  It was opined that due to the missing evaluations, there was no advantage in referring his file to STABs for FY03 or FY04.  Further, HRC, Promotions Branch did not have the authority to directly promote the applicant or to remove the NCOER in question.

22.  Counsel rebutted the advisory opinion stating that he was opposed to the referral to a STAB.  Counsel reiterated that without correction of the injustice caused by the lack of proper NCOERs, referral to a STAB would not remedy the injustice or grant thorough and fitting relief.  

23.  The applicant’s file was reviewed by a STAB under the criteria for FY05 and the applicant was non-selected for promotion to SFC.

24.  The available record contains no information to show whether or not the applicant's file was referred to any SFC promotion board except the FY 05 STAB directed by HRC.  
25.  A review of the applicant's iPERMS record shows that it has not been properly updated.  It shows that a security investigation was completed on 7 October 2002 and that his access to classified data is suspended, a fact not consistent with his current position.  It further shows that the applicant's HIV screening and physical exam had expired.

26.  The Memorandum of Instructions for the FY05 SFC Selection Board shows that the primary zone for consideration was for Soldiers with dates of promotion to SSG of 1 October 2001 or earlier. 

27.  Army Regulation 623-3 (Evaluation Reporting System) sets forth the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  In pertinent part it provides the following:

	a.  the ERS was established to identify Soldiers who are best qualified for promotion and assignments to positions of greater responsibility.  The ERS also identifies Soldiers who will be kept on active duty, be retained in grade, or eliminated from Service through a uniform evaluation procedure;

	b.  normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  Non-rated periods are not included in this 90-day period;

	c.  an annual evaluation report is mandatory for a rated Soldier on completion of 1 calendar year of duty following the THRU date of the last NCOER in the Soldier's OMPF;

	d.  NCOERs are to be completed each time a rater changes, so long as the rater has had a minimum of 90 days in which to evaluate the Soldier;

	e.  the period of rated months cannot exceed 12 months of evaluated time;

	f.  when rating officials are suspended, they will not render evaluations until their status (and thus their ability to serve as rating officials) is decided.  When a rater or senior rater is suspended, the suspended time will be counted as non-rated time on the rated NCO's NCOER; and

	g.  evaluation reports will be forwarded in a manner to reach HQDA no later than 90 days after the ending day of the report.  The centralized selection, promotion, and school boards schedules will be closely monitored to ensure that eligible reports, both mandatory and optional, are forwarded to HQDA in sufficient time to be included in a Soldiers board file.

28.  Army Regulation 600-8-19 (Enlisted Promotions) sets forth the following pertinent information:

	a.  Soldiers who are pending referral to an MOS/medical retention board (MMRB) or referral to an MEB or a PEB will not be denied promotion (if already promotable) on the basis of medical disqualification if they are otherwise qualified for promotion;

	b.  to be promoted to SFC, a Soldier must hold the clearance required by the promotion MOS or an interim clearance at the same level; and

	c.  to be eligible for promotion a Soldier must in have a valid security clearance, a current HIV screening, a current physical examination, and passed a current physical fitness test.

DISCUSSION AND CONCLUSIONS:

1.  The available records contain no documentation to show whether or not the applicant was considered for promotion to SFC at any time except as a result of the recent HRC referral to the FY05 STAB.

2.  The NCOER covering the period July 2002 through June 2004 is clearly improper.  While the regulations do not specify how many months of non-rated time may be reflected on an NCOER, an NCO is supposed to receive a rating on at least an annual basis.  The NCOER in question covers a total of 24 months.  Further, it was not completed in a timely manner even after the error in the lack of evaluations was discovered by the applicant's new first sergeant.

3.  There is no legal or procedural reason why the applicant did not receive properly prepared NCOERs at the completion of his annual reporting period in July 2003 and 2004.  In fact, if he had different raters during this 2-year period, he should have had change of rater evaluations completed at the time each rater was removed from their position.  The 1SG and company commander would both have been aware that his raters were not qualified to complete the NCOERs and should have ensured that proper and timely evaluations were completed.  

4.  While the 2004 NCOER is questionable in nature, it does reflect the applicant's service for a 3-month rated period.  It would be inappropriate to totally remove this evaluation.  

5.  However, it is appropriate to place a non-prejudicial explanation in his records explaining the 21-month gap created in NCOER rating periods.

6.  While the action by the HRC, Promotions Branch in referring the applicant’s file to a STAB was a valid action, there is no indication that HRC prepared a statement identifying the error in the 2002 - 2004 NCOER or placed a non-prejudicial statement explaining the non-rated period.  Without such a statement the applicant could not get an impartial evaluation of his promotion potential. 

7.  While there is some indication that the applicant may be currently in a promotable status, the available records do not clearly show this fact.  With the record still showing a suspended security clearance, the applicant is not competitive within his career field.  Additionally, the record indicates that he does not have a current HIV test or a current medical examination of record.  

8.  With the factors noted above, even if he were to be selected for promotion, he is not in a promotable status until his record issues are resolved.  Therefore, the applicant is ineligible for promotion. 

9.  It would, however, be appropriate to direct that the applicant's personnel file be reviewed by his Personnel Support Center, and have the record corrected and/or updated, as necessary. 

10.  After the applicant's record has been reviewed and corrected and the NCOER non-prejudicial statement is added to his record, as a matter of equity his case should be referred to a STAB for promotion consideration to SFC under FY 05, FY06, and FY07 criterion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X ___  ____X __  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  placing a non-prejudicial explanation in his records explaining the non-rated period shown on the July 2002 through June 2004 NCOER; 
	b.  directing that the applicant's personnel file be reviewed, corrected, and/or updated to include specifically the issues of his security clearance, HIV testing, and medical examination status;
	
   c.  upon completion of the above actions, referring his case to an SFC STAB under the criteria of FY05, FY06, and FY07; and

	d.  if selected, he should be promoted with an appropriate date of rank/effective date, and paid all back pay and allowances.

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 promotion to SFC with a date of rank comparable with that assigned to his peers or 1 October 2005, with back pay and allowances; removal of the July 2002 - Jun 2004 NCOER from his OMPF; and directing that no negative assumptions be made based on the absence of the NCOERs for the period July 2002 through June 2004.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070018306



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ABCMR Record of Proceedings (cont)                                         AR20070018306



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