IN THE CASE OF:	

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021544 


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 consideration for promotion to sergeant first class/E-7 (SFC/E-7).  

2.  The applicant states he was repeatedly passed over for promotion.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and college associate degree documents in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 17 June 1963.  He was initially awarded and served in  military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 24 November 1967, the applicant was awarded MOS 42E (Optical Lab Specialist) and on 24 July 1969, he was promoted to staff sergeant/E-6 
(SSG/E-6) in that MOS. 

4.  On 3 August 1969, the applicant was reclassified into MOS 16J (Defense Acquisition Radar Operator).  

5.  The applicant’s record is void of any information regarding his promotion consideration and/or non-selection.  His record is also void of any performance related documents (i/e Evaluation Reports or MOS Testing Reports).

6.  On 31 August 1983, the applicant was honorably retired, in the rank of SSG/E-6, after completing 20 years, 2 months and 14 days of active military service.  

7.  Army Regulation 600-200 (Enlisted Personnel Management) prescribed the policies for the management of enlisted personnel of the Army which included promotions and reductions.  Chapter 7, Section IV provided guidance on selection to pay grades E-7, E-8 and E-9.  It stated selections of Department of the Army (DA) boards would be based on impartial consideration of all eligible Soldiers in the announced zone.  Selections would be made by career management field (CMF) for E-8 and E-9 and MOS for E-7 and boards would select the best qualified in each CMF/MOS.  It further stated boards would recommend a specified number of Soldiers by CMF for E-8/E-9 and by MOS for E-7 from the zones of consideration who were the best qualified to meet the needs of the Army. The total number that could be selected in each CMF or MOS would be the projected number the Army needed to maintain its authorized by grade strength at any given time.  

8.  Paragraph 7-39b of the promotion regulation stipulated that DA boards would not provide specific reasons for non-selection.  Board members could not record their reasons or give any reasons for selection or non-selection.  Selections were based on relative qualifications and the projected need in each CMF/MOS.  

9.  Paragraph 4-73 of the same regulation provided the policy for reconsideration for promotion by a Standby Advisory Board (STAB).  It stated the STAB would consider records not reviewed by a regular board and those of members in the primary zone if their records were not properly constituted due to a major material error when reviewed by a regular board.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that he be reconsidered for promotion to SFC/E-7 has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, promotion reconsideration was only authorized in cases where the record reviewed by a regular board contained a material error or the member was erroneously not considered by a regular board for which he was eligible.  Further, selection boards were prohibited from recording or providing specific reasons for selection or non-selection for promotion.  

3.  The evidence of record fails to show any error or injustice related to the applicant’s promotion consideration and/or non-selection.  Absent any evidence that he was not properly considered by a regular promotion board or that a material error existed in his record, there is an insufficient evidentiary basis to support reconsidering him for promotion at this late date. 

4.  The applicant is advised that the specific reasons for his non-selection for promotion were not authorized to be recorded or provided by selection boards and is not available to this Board for review.  Promotions to E-7 were based on best qualified by MOS and the projected needs of the Army.  Absent evidence of any error or injustice in the selection process, it is presumed it was the objection best judgment of the selection board at the time that the applicant was not among the best qualified within his MOS based on the Army need when he was considered for promotion.  

5.  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

____X___  ___X___  ____X____  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.




      _______ _   _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)                                         AR20090021544



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ABCMR Record of Proceedings (cont)                                         AR20090021544



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