IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013263 


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 consideration to master sergeant (MSG)/ pay grade E-8 by a Standby Advisory Board (STAB) based on material error.

2.  The applicant states that, through no fault of his own, his most recent noncommissioned officer evaluation report (NCOER) with a Thru date of
30 July 2009 did not get transmitted from his unit until 25 September 2009.  He adds he repeatedly inquired about his NCOER up through 25 September 2009.

   a.  He states that NCOERs for Soldiers in the zone of consideration for promotion are given priority for processing at the U.S. Army Human Resources Command (USA HRC).  However, the NCOER was not placed in his file until
13 October 2009, which was six days after the board convened.

   b.  He states that he was fully educationally qualified for promotion at the time of the Board and, had the NCOER made it to his board file, he believes he would have been selected for promotion to MSG.

   c.  He states that he requested promotion reconsideration, but his request was denied by USA HRC.  He also states he contacted the USA HRC point of contact and was told that documents had to be received by the announced
cut-off date and, since his NCOER was not, his request for a STAB was denied.

3.  The applicant provides a copy of his DA Form 2166-8 (NCO Evaluation Report), request and denial of STAB, promotion board message, and extracts of pertinent Army regulations.
CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) program in the rank of sergeant first class (SFC)/pay grade E-7 with a date of rank of 1 September 2006.  His primary military occupational specialty (MOS) is 88N4O (Transportation Management Coordinator).

2. The applicant's AHRC Form 4143 (Enlisted Record Brief - AGR) shows his Pay Entry Basic Date (PEBD) is 7 February 1989 and Basic Active Service Date (BASD) is 5 January 1992.  The Education section shows he completed the Advanced NCO Course in 2007.

3.  The applicant's NCOER covering the period 31 July 2008 through 30 July 2009 shows he was serving in duty MOS 88N4O as a Staff Movement NCO.  Part I (Administrative Data), block g (Reason for Submission), shows it was an annual report.  The NCOER was electronically processed and digitally signed, as follows:

* the rater authenticated the NCOER on [Tuesday] 22 September 2009
* the senior rater authenticated the NCOER on 23 September 2009
* the reviewer authenticated the NCOER on 23 September 2009
* the applicant authenticated the NCOER on [Friday] 25 September 2009

4.  MILPER Message Number 09-138, Subject:  Fiscal Year 2010 Army Reserve AGR MSG Selection Board Zones of Consideration Announcement Message, provided instructions regarding the selection of qualified AGR senior NCOs for promotion to MSG.  

   a.  The eligibility criteria for promotion consideration to MSG was all Advanced NCO Course qualified AGR SFCs with a PEBD not later than
15 October 2001 and a BASD not earlier than 15 October 1984.

   b.  The primary zone was SFC with a DOR of 1 December 2006 and earlier.

   c.  Paragraph 9 provided instructions for the electronic processing of NCOERs.

       (1)  Subparagraph b states, "In order to guarantee processing prior to board, all mandatory or optional NCOERs must be received, error free, in the Evaluation Reports Branch, HRC-St. Louis (AHRC-PDV-ERR), not later than and by close of business on 23 September 2009."

       (2)  Subparagraph d states, "NCOERs completed prior to 1 April 2009 that are missing from the Official Military Personnel File, may be mailed in hard copy to:  Commander, USA HRC (AHRC-PDV-ERR), St. Louis, MO."

5.  A DA Form 4187 (Personnel Action), dated 7 January 2010, Subject:  Request STAB Reconsideration, shows the applicant requested reconsideration for promotion to MSG due to a possible material error that his annual NCOER with a Thru date of 30 July 2009 was not completed and processed in a timely manner.

6.  Headquarters, USA HRC, St. Louis, MO, memorandum, dated 3 February 2010, Subject:  STAB [Applicant's Rank, Name, Social Security Number, and MOS], shows that the applicant's request for a STAB was not favorably considered.

   a.  The Chief, DA Enlisted Promotions, informed the applicant that his annual NCOER with an ending date of 30 July 2009 was received after the cut-off date specified in MILPER Message 09-138.  [The memorandum incorrectly cited paragraph 9d for the cut-off date, instead of paragraph 9b.]

   b.  He added that evaluations received after the specified cut-off date have less than a reasonable chance of getting posted to the file and will not be a basis for STAB consideration.  Accordingly, the applicant's request was denied.

7.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army's Evaluation Reporting Systems.  Chapter 3 (Army Evaluation Principles), paragraph 3-37 (Preparation and submission procedures), provides that to facilitate the rated Soldier signing the evaluation report after its completion and signature by the rating officials, the evaluation report may be signed and dated by each individual in the rating chain up to 14 days prior to the Thru date of the report; however, the report cannot be forwarded to Headquarters, Department of the Army, until the Thru date of the report.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policy and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Chapter 4 (Centralized Promotions - Sergeant First Class, Master Sergeant, and Sergeant Major), section IV (Task:  Processing Request for Standby Advisory Board Consideration), paragraph 4-13 (Rules), shows that STABs are convened, in pertinent part, to consider records of those Soldiers whose records were not properly constituted due to material error, when reviewed by the regular board.
   b.  Subparagraph f provides that reconsideration normally will be granted when one or more of certain specified conditions existed in the Soldier's Official Military Personnel File at the time it was reviewed by a promotion selection board.

   c.  Subparagraph f(10) shows that an annual or change of rater NCOER that was received at HRC-St. Louis (for USAR) early enough for processing and filing before the convening date of the promotion selection board that was not reviewed is a condition for reconsideration.  It also provides that
75 days are allowed for processing after the Thru date of the report or the date the promotion work center completes Part I, section 1, for late reports.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reconsidered for promotion to MSG because his NCOER was not processed in a timely manner and, as a result, it was not included in his board file that was reviewed by the promotion board.

2.  The evidence of record shows the governing Army regulation provides that
75 days are allowed for processing annual NCOERs after the Thru date.  Thus, STAB consideration is not authorized for these annual reports, if they do not get into the board file prior to the allowed processing time.

3.  Notwithstanding the 75-day processing provision, the MILPER Message for the Fiscal Year AGR MSG Selection Board provided instructions that mandatory (i.e., annual) NCOERs were due at USA HRC-St. Louis not later than
23 September 2009 in order to allow sufficient time for their processing and inclusion in the Soldier's board file.

4.  The evidence of record shows the applicant was due a mandatory annual report with a Thru date of 30 July 2009.  The evidence of record also shows the NCOER could have been completed and signed as early as 16 July 2009 and forwarded to USA HRC-St. Louis as early as 30 July 2009 for processing.

5.  The applicant's rating chain completed and electronically processed the NCOER on 23 September 2009.  However, the applicant did not digitally sign the NCOER until two days later; on Friday, 25 September 2009.  As a result, the applicant's NCOER was received at USA HRC after the cut-off date
(i.e., 23 September 2009) specified in the MILPER Message.


6.  The evidence of record shows that an NCOER received after the specified cut-off date that does not get posted to the board file will not be a basis for STAB consideration.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant the requested relief.

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)                                         AR20100013263



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ABCMR Record of Proceedings (cont)                                         AR20100013263



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