IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090009910 


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 promotion reconsideration by a Standby Advisory Board (STAB) based on the criteria of the Calendar Years 2008 and 2009 (CY 08 and CY 09) Sergeant First Class (SFC), E-7 Promotion Boards.

2.  The applicant states, in effect, she was given a relief-for-cause NCOER (Noncommissioned Officer Evaluation Report) for the period October 2007 through January 2008.  She appealed the NCOER through the Army Special Review Board (ASRB) based on substantive inaccuracies.  On 12 February 2009, the ASRB directed the report be removed from her Official Military Personnel File (OMPF); however, this was not done before the CY 09 Promotion Board convened and reviewed her record.

3.  The applicant provides a two-page email from the U.S. Army Human Resources Command (USAHRC), Appeals and Corrections Branch, dated
17 April 2009; a two-page email from the USAHRC, Enlisted Promotions Branch, dated 14 April 2009; and a copy of her ASRB Record of Proceedings, dated
12 February 2009, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is presently serving on active duty at Fort Campbell, KY.  Her record shows she was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 August 2002.


2.  The applicant received a relief-for-cause NCOER covering the period October 2007 through January 2008 while serving as the Emergency Medical Treatment (EMT) Noncommissioned Officer (NCO) for a Level III Combat Support Hospital forward deployed in support of Operation Iraqi Freedom.

3.  On 29 June 2008, the applicant appealed the NCOER.

4.  On 12 February 2009, the ASRB directed removal of the NCOER from the applicant's OMPF.  Records show she was a three time non-select and the NCOER identified for removal was not the sole reason for her multiple non-selections.  Therefore, the ASRB specifically directed the applicant receive no promotion reconsideration

5.  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 to SFC, master sergeant (MSG), and sergeant major (SGM).  Paragraph 4-14 contains the rules for reconsideration by a STAB, and paragraph 6-13e provides that STABs are convened to consider records of those Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board.  STABs normally will be granted when an adverse NCOER, which was reviewed by a promotion board, was subsequently declared invalid in whole or in part and was determined by the ASRB to constitute a material error.

6.  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 requests promotion reconsideration by a STAB based on the criteria of the CY 08 and 09 SFC, E-7 Promotion Boards.

2.  The ASRB removed the relief-for-cause NCOER from the applicant’s OMPF because of substantive inaccuracies in the report.  However, the ASRB determined that relief for cause NCOER was not the sole reason for her multiple non-selections.  Therefore, the ASRB directed the applicant receive no promotion reconsideration


3.  The NCOER ordered removed by the ASRB was an adverse, relief-for-cause NCOER.  Its removal materially changed the applicant’s OMPF for the better and 
should have resulted in a promotion relook by a STAB using the CY 08 and 09 SFC, E-7 Promotion Board criteria.  Therefore, notwithstanding the ASRB's determination that promotion reconsideration was not applicable, it is concluded that it would be appropriate and would serve the interest of justice to grant the applicant's request that her record be reconsidered by a STAB under the criteria used by the CY 08 and 09 SFC promotion selection boards that considered her for promotion while the subject NCOER was on file in her OMPF.

4.  If the STAB selects the applicant for promotion under the criteria of an earlier promotion selection board, her record should be corrected accordingly.  That is, the effective date and DOR of her SFC promotion should be adjusted to coincide with the date she would have been promoted under the earlier promotion selection board's criteria, and she should be provided any back pay and allowances due as a result.  If she is not selected for promotion under earlier criteria, she should be so notified.  

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting her corrected record to a duly constituted STAB for promotion consideration to SFC/E-7 under the criteria followed by the CY 08 and CY 09 promotion selection boards that considered her record for promotion to SFC/E-7 while the contested NCOER was on file in her OMPF.

2.  If she is selected for promotion by the Stand-By Advisory Board, her record should be corrected by establishing her SFC/E-7 promotion effective date and date of rank as if she had been originally selected under the earlier criteria 
identified by the STAB, and by providing her all back pay and allowances due as a result.
3.  If she is not selected for promotion by the STAB, she should be so notified by the appropriate USAHRC promotion officials.



      ___________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)                                         AR20090009910



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ABCMR Record of Proceedings (cont)                                         AR20090009910



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