IN THE CASE OF:	  

		BOARD DATE:	  19 August 2008

		DOCKET NUMBER:  AR20080006513 


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:

1.  The applicant requests, in effect, promotion reconsideration to master sergeant (MSG) by a Standby Advisory Board (STAB).

2.  The applicant states, in effect, that he successfully appealed a Noncommissioned Officer Evaluation Report (NCOER) for the period May 2001 to April 2002, which resulted in a change in his evaluation from Fully Capable to “Among the Best,” which is a major factor in promotion consideration; however, his request for promotion reconsideration by a STAB was denied.  He further states that a Department of the Army (DA) After Action Report for the Fiscal Year 2008 (FY 2008) MSG Promotion Board confirms that the NCOER is an essential element used when selecting Soldiers for promotion to MSG.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; NCOER Appeal Packet; NCOER (DA Form 2166-8); and Army Human Resources Command (HRC), DA Secretariat for Senior Enlisted Selection Boards, Memorandum, dated 23 October 2007.  

CONSIDERATION OF EVIDENCE:

1.  At the time of his application to the Board, the applicant was still serving on active duty, in the rank of sergeant first class (SFC), at Fort Carson, Colorado.  

2.  The applicant's record shows he was promoted to SFC on 1 November 2001.

3.  The applicant's record shows he received an annual NCOER covering the period May 2001 through April 2002, which evaluated him as the Regiment Career Counselor for an aviation regiment in Europe.  In Part V (Overall Performance and Potential), the rater, a MSG, rated the applicant as
“Fully Capable.”  

4.  On 4 January 2006, the applicant appealed the April 2002 Annual NCOER.  His appeal included a statement from the rater which confirmed he initially rated the applicant as “Among the Best” when he first completed the NCOER; however, when it was returned for corrections, he mistakenly marked the "Fully Capable" block.  Further, the rater stated that the bullets he entered clearly supported an "Among The Best" rating, which the applicant earned and deserved. 

5.  On 14 March 2006, the Chief, Personnel Actions Branch, Enlisted Records and Evaluation Center (EREC), notified the applicant that as a result of his appeal, the NCOER in question would not be withdrawn, but would be amended to show he received an "Among The Best" rating, and that the amended report would be filed in his Official Military Personnel File (OMPF).  The applicant was further informed that the Enlisted Special Review Board (ESRB) had determined the amended NCOER did not support promotion reconsideration.  The ESRB Case Summary is not included in the applicant’s OMPF; however, the OMPF does contain the amended NCOER, which shows the applicant was rated “Among the Best” in Part Va.

6.  The applicant provides a copy of the DA FY08 MSG Selection Board Field After Action Report, dated 3 October 2007, in which he highlights the portion of the report that states, in pertinent part, that comments from the Promotion Board President, a brigadier general, indicated that the  “the best qualified Soldiers outperformed their peers with consistently exceptional performance in leadership in diverse positions while continuing to meet the career path gates of their career management fields, as indicated by a strong record of performance evaluations. This report also indicated that the NCOER is an essential document in assessing a Soldier’s performance and potential.

7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army's enlisted promotions and reductions policy.  Chapter 4 provides guidance on centralized promotions.  Paragraph 4-14 contains the rules for reconsideration by a STAB and states, in pertinent part, that referral to a STAB may be made upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  

8.  The enlisted promotions regulation further states that an error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  It further states, in pertinent part, that reconsideration by a STAB will normally be granted when an adverse evaluation report was subsequently declared invalid in whole or in part.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted promotion reconsideration to MSG by a STAB because an erroneous entry contained on his May 2001 thru April 2002 NCOER has since been corrected was carefully considered and found to have merit.  

2.  By regulation, promotion reconsideration by a STAB may be granted when it is determined that the record of a Soldier contained a material error at the time of promotion consideration.  Therefore, notwithstanding the ESRB determination that promotion reconsideration was not applicable, it is concluded that it would be appropriate and serve the interest of justice to grant an exception to policy that would allow the applicant’s record to be placed before a STAB, for promotion reconsideration to MSG using the criteria used by all MSG promotion selection boards that considered the applicant for promotion while the invalid NCOER was on file in his OMPF. 

3.  If the STAB selects the applicant for promotion, his record should be corrected under the criteria of the promotion selection board from which he is considered and his effective date and DOR of his MSG promotion adjusted accordingly.  Further, he should be provided any back pay and allowances due as a result.  If he is not selected for promotion under earlier criteria, he should be so notified.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
      
      a.  placing his record before a Standby Advisory Board, in order for him to be reconsidered for promotion using the criteria of every master sergeant/E-8 promotion selection board that considered him for promotion while the contested NCOER was on file in his OMPF; 
      
      b.  if selected for promotion by the Standby Advisory Board, by further correcting his record to show he was promoted to the next higher grade on his date of eligibility, as determined by the appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion and providing him all back pay and allowances due as a result; and
      
   c.  if not selected for promotion by the Standby Advisory Board, by so notifying him.
      




      _______ _ 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)                                         AR20080006513



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ABCMR Record of Proceedings (cont)                                         AR20080006513



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