IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015384 


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 to sergeant first class (SFC)/E-7 based on his selection by the 1988 Active Guard Reserve (AGR) Promotion Board.  

2.  The applicant states he was assigned as an AGR Recruiter in August 1985 and extended his enlistment in the United States Army Reserve (USAR) to meet the 3-year service requirements for recruiting duty.  His recruiting tour was shortened by an erroneous reassignment possibly based on two EERs [Enlisted Evaluation Reports] -- an annual, for October 1985 through September 1987 (which he reviewed and signed), and a relief for cause, for October 1987 through November 1987 -- and a letter from the brigade commander, which he did not see until June 1988:

	a.  He was assigned to Company B, 1st Battalion, 314th Infantry, on 4 April 1988, 5 months and 5 days prior to completion of his recruiting duty.  A few weeks later, he saw his name in the Army Times among those selected for promotion to SFC/E-7.  A few months later he found out his promotion orders had been revoked and he was informed since his primary military occupational specialty (PMOS) of 00E (Recruiter) had been withdrawn, he could not be promoted.  He contacted the legal office in Horsham, PA, in 1989, but he did not follow up on this issue.

	b.  He contacted the promotion section at the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command (HRC)) and received a copy of the July 1988 SFC standing list which confirmed his name was among those selected for promotion.  In 1995 he was stationed at HRC-St. Louis, MO (known at the time as the U.S. Army Reserve Personnel Center (ARPERCEN)) and he was told by various individuals he should have been promoted to SFC/E-7.  However, he ultimately retired on 1 September 1997 in the rank/grade of staff sergeant (SSG)/E-6. 

	c.  His qualifications far exceeded standards required for promotion to SFC and his credentials were equal to those who were promoted.  He received several awards and achieved various achievements.  His 3-year recruiting tour was cut and he was not given an opportunity to reclassify or to consider any statements used against him.  He was simply involuntarily reassigned without an opportunity to see what was said or written against him and without an opportunity to submit a rebuttal.  

	d.  Miscommunication, coupled with poor administrative procedures by the Recruiting Battalion, caused him much anguish and prevented him from achieving a higher grade.  There were also unfair practices within the promotion board.  

	e.  He requests the Board review his records in depth and provide a fair finding along with any type of compensation deemed necessary and appropriate in order to resolve this matter.  The role of politics in the AGR program caused him and other Soldiers to suffer.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Optional Form 41 (Routing and Transmittal Slip)
* Meritorious Service Medal certificate
* Revocation Orders for the Army Good Conduct Medal
* A list of SFC selectees, Army Times
* Memorandum, Subject: 1998 AGR Promotion Board Results
* Roster of Enlisted Personnel Recommended for Promotion to SFC
* Orders reassigning him to the 1st Battalion, 314th Infantry
* Orders awarding him the second and third Army Good Conduct Medal
* Orders awarding him PMOS 71L (Administrative Specialist)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Relief Memorandum
* DA Forms 2166 (EER) for October through November 1987 and October 1985 through September 1987
* Award of the Basic Recruiter Badge with One Gold Achievement Star
* Certificate of Achievement
* Orders awarding him the Driver and Mechanic Badge
* Orders to active duty in the AGR program
* Certificate of completion (Army Recruiter Course)
4.  On 8 October 2010, the applicant submitted additional information and requests additional relief in the form of:

* Promotion to SFC/E-7 with entitlement to back pay and allowances
* Removal of the Relief for Cause EER from his official records
* A statement of non-rated time filed in his records and on his DA Form 2-1 (Personnel Qualification Record - Part II) in lieu of the Relief for Cause EER 

5.  He states he now has a slightly different prospective that he neglected to mention in his original application.  He states that:

	a.  He never reviewed the Relief for Cause EER and he was not given an opportunity to submit a rebuttal to the EER.  Additionally, when he was assigned to recruiting duty, he initially worked at the Richmond, CA, Recruiting Station and remained there for almost a year but he did not receive an EER for that period.  He then moved to the Oakland, CA, Recruiting Station under a new station commander who was himself relieved.  He ended up receiving an annual EER for a period of 2 years with 1 year of non-rated time.  This administrative error caused his career to be blemished and a hardship.

	b.  He was never counseled regarding his rating chain.  His rater during the annual EER was his first sergeant (1SG) who was relieved.  Yet, he was also the rater during the relief for cause EER.  Additionally, there was no counseling, corrective training, or anything negative in his records.  He was never given any indications that he was being relieved or involuntarily reassigned.  His official file is void of any negative documentation.

	c.  His annual EER stated that his performance was poor and his Relief for Cause EER stated that he performed in an inconsistent manner.  It was a big surprise to him when he saw the Relief for Cause EER as he signed his Annual EER on 5 November 1987 and it would have been appropriate at that time for his rating officials to notify him of the Relief for Cause EER which covered the period October through November 1987.  He even continued recruiting duties until March 1988, nearly 2 months after he received his reassignment orders. 

	d.  The regulation at the time stipulated that his recruiting assignment would be for 3 years unless his position was relocated/abolished, he failed to successfully complete the recruiting course, was promoted to a grade that required relocation, failed to meet the height and weight requirements, or involuntarily reassigned.  He was involuntarily reassigned.  Additionally, by regulation, he should have had the option to request reassignment within the U.S. Army Recruiting Command (USAREC) or transfer to another command.  He should have been allowed to finish his tour and transfer instead of being involuntarily reassigned to an infantry unit.  Had he not been involuntarily reassigned, he would have been promoted to SFC/E-7.  He was not flagged (suspension of favorable personnel action) and he was a promotable SSG/E-6.  Had it not been for the erroneous involuntary reassignment, he would have been promoted. 

	e.  During his tenure, he completed the recruiting course and he was later awarded a gold star for an outstanding recruiting effort.  He was also awarded the Driver/Mechanic Badge and the Army Good Conduct Medal (2nd Award); however, this award was later revoked for no reason.  Additionally, he received high numbers in professionalism and overall on his EERs.  He concludes that he suffered a financial hardship because he was separated from his wife when he did not get promoted and the court system awarded his former wife monthly monetary support.

6.  He provides:

* Selected pages of Army Regulation 601-1 (Assignment of Enlisted Personnel to USAREC)
* DA Form 2-1
* DA Form 2A (Personnel Qualification Record - Part I)
* An example of a non-rated time statement
* A DA Form 4836 (previously submitted)
* Involuntary Reassignment Orders
* March 1991 Leave and Earnings Statement

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 records show he enlisted in the Regular Army on 30 September 1963 and he held MOS 91B (Medical Specialist).  He was honorably released from active duty on 13 September 1966 and he was transferred to the USAR Control Group to complete his Reserve obligation.

3.  He enlisted in the USAR on 12 April 1976 and he was awarded MOS 91P   (X-Ray Specialist).  He was transferred to the USAR Control Group (Reinforcement) on 10 January 1982.

4.  On 11 January 1982, he was ordered to active duty in an AGR status and held MOS 71L.  He was attached to Headquarters, 124th Army Reserve Command with duty at the 2nd General Hospital, Hamilton Air Force Base, CA.  He was promoted to SSG/E-6 in the USAR on 1 September 1983.

5.  On 9 August 1985, he completed the Army Recruiter Course and he was awarded MOS 00E and, on 13 August 1985, he was issued official orders reassigning him to the U.S. Army Recruiting Battalion, for a period of 3 years, with duty in Oakland, CA, and a report date of 30 September 1985.  He served as a field recruiter with duty in San Jose, CA, from 30 September 1985 to 30 September 1987, and in Oakland, CA, from 1 October 1987 to 7 March 1988.

6.  On 1 April 1987, he was awarded the Driver and Mechanic Badge with Wheel Device and on 6 April 1987, he was awarded the Basic Recruiter Badge with one Gold Achievement Star for the period 1 October 1986 through 31 March 1987.

7.  During the month of September 1987, he received an Annual EER, covering the rated period from October 1985 through September 1987 (12 months of rated time and 12 months of non-rated time, with a code of "Q" (lack of rater qualifications)).  His rater was not listed because the rater was relieved, his endorser was his company 1SG, and his reviewer was his company commander:

	a.  The applicant received an overall rating of 44 out of 50 in the 10 areas of professional competence (each area had a high value of 5 and a low value of 1) and 34 out of 35 in the seven areas of professional standards, for a total of 78 points.

	b.  His endorser rated him as an average recruiter with work ethics that produced inconsistent results but did not achieve his mission with respect to non-prior service applicants or volume requirements.  His endorser awarded him 
37 points out of a maximum of 40 points and recommended that he be promoted with his peers.  The endorser also stated the applicant should be reclassified and placed into an organization where his progress could be supervised. 

	c.  He received an overall score summary of 115 (78 plus 37 divided by 2) out of a maximum of 125.  

	d.  His reviewer reviewed the EER, and the applicant and the endorser placed their signatures in the appropriate places on 5 November 1987.  The applicant received a copy on 25 November 1987 and a copy was filed in his Military Personnel Records Jacket (MPRJ) and posted to his DA Form 2-1 on the same date.

8.  During the month of November 1987, the applicant received a Relief for Cause EER covering the period October through November 1987.  His rater was his company 1SG, his endorser was his company commander, and his reviewer was his battalion commander:  

	a.  The applicant received an overall rating of 45 out of 50 by his rater and 46 out of 50 by his endorser in the 10 areas of professional competence and 34 out of 35 in the seven areas of professional standards by both rating officials, for a total of 79 points by his rater and 80 points by his endorser.

	b.  The applicant's rater awarded him 34 points and rated his performance as poor and inconsistent.  The rater stated the applicant "demonstrated a genuine concern for each of his applicant's welfare," but showed limited improvement to a combination of different types of sales oriented training.  The rater added that the applicant needed to improve his abilities to manage his time and efforts as well as his own drive and determination to be successful.  Once this was accomplished, he should prove to be a valuable and professional noncommissioned officer.  His rater further recommended that he be reclassified and placed in an organization where his progress and efforts could be closely supervised. 

	c.  The applicant's endorser awarded him 34 points and stated the applicant performed his duties in an inconsistent manner and despite concerned efforts from his chain of command to train him and direct his work ethics he failed to show any progress or desire to be successful.  His lack of initiative to prospects, especially in the prior-service market, was the key to his poor production record and it was compounded by his failure to follow up on those he did establish an initial interest with in the Army Reserve Programs.  Although well-intentioned, he did not exhibit the actions or self-discipline to succeed.  His ability to attain results in a highly productive market placed an added burden on the remainder of the recruiting force to make up for his shortfalls.  He did not have the skills to be successful in recruiting duty.  The endorser also stated the applicant should be removed from the recruiting environment as soon as possible and placed in a position where direct supervision would ensure a productive effort daily from him. 
	d.  The applicant received an overall score summary of 113.5 (113 by his rater and 114 by his endorser, divided by 2) out of a maximum of 125.  

	e.  The applicant's reviewer reviewed the EER and he, the rater, and the endorser placed their signatures in the appropriate places on 4 April 1988.  The applicant was unavailable to sign but had a copy forwarded to him on 12 April 1988 and a copy was filed in his MPRJ and posted to his DA Form 2-1 on the same date.

9.  The complete relief packet is not available for review with this case.  However, his records contain a memorandum, dated 4 May 1988, that shows the 8th Recruiting Brigade commander reviewed the applicant's relief for cause packet, dated 2 November 1987, and determined the applicant's apathetic attitude towards recruiting duties coupled with his laziness and lack of motivation resulted in his failure as a recruiter.  Reassignment was in the best interest of the Army.  The applicant was notified of the reason for his relief.

10.  The available evidence does not show the applicant requested a commander's inquiry or appealed this EER to the appropriate office. 

11.  On 20 January 1988, official orders were published awarding him MOS 71L and withdrawing MOS 00E.  On the same date, ARPERCEN published official orders reassigning him to Company B, 1st Battalion, 314th Infantry, Huntington, PA, in MOS 71L.  

12.  On 8 June 1988, ARPERCEN published the results of the selection board that convened between 5 and 22 April 1988 to select AGR Soldiers for promotion to SSG and SFC.  The applicant's name was among those listed as a selectee for promotion to SFC.  

13.  The facts and circumstances surrounding his removal from the promotion standing list are not available for review with this case and his record is void of any official orders promoting him to SFC/E-7.  Additionally, his records do not indicate he was selected by a different promotion board for promotion to SFC.

14.  He served in MOS 71L until he was honorably retired from active duty on 
31 August 1997 and placed on the retired list in his retired rank/grade of 
SSG/E-6. 

15.  At the time of retirement he was awarded the Meritorious Service Medal for service from 1 September 1987 to 31 August 1997.

16.  Army Regulation 140-158 (Enlisted Personnel, Classification, Promotion and Reduction 35-155), in effect at the time, prescribed policy and procedures governing the classification, advancement, promotion, and grade restoration of USAR Soldiers.  Chapter 4 provided for promotion of AGR Soldiers.  Promotion in the AGR program to SSG/E-6 and above would be made through the centralized process against existing or projected vacancies in the AGR program. Individuals would be promoted in the MOS recommended by the promotion board.  The MOS in which the promotion is to be made became the Soldier's primary MOS.  

17.  Paragraph 4-28 of the regulation in effect at the time stated that occasionally, adverse information is received concerning a Soldier already recommended but not promoted.  When this occurs and the information would warrant removal from the recommended list, disposition would be considered by a standby advisory board (STAB).  The commander or first field grade officer in the direct line of supervision may recommend the removal of a name from the list at any time.  Additionally, commanders will promptly advise ARPERCEN of any Soldier on the recommended list who is in receipt of orders relieving the Soldier from the current assignment or a Soldier who has been reclassified due to inefficiency or misconduct.  ARPERCEN would administratively remove any Soldier in this category from the recommended list.

18.  Army Regulation 623-205 (Enlisted Evaluation Reporting System), in effect at the time, set the policies and procedures governing the EER System and was designed to support the Army's personnel management programs and career development of individual Soldiers.  The version in effect at the time stated in:

	a.  Paragraph 1-5, rating chains must correspond as nearly as practical to the chain of command and supervision within an organization.

	b.  Paragraph 2-1, the minimum authorized period for an EER is 3-rated months except for special reports and Relief for Cause reports.  The EER will show a continuous record for each month and year.  An annual report covers a 12-month period as long as the required 3-month minimum rating period or rater qualification criteria are met.  Otherwise, an annual report is extended until the minimum requirements are met.

	c.  Paragraph 2-11, a Relief for Cause is required when a Soldier is relieved.  A relief for cause is defined as the removal from a rateable assignment based on a decision by a member of the person's chain of command or supervisory chain that his personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army. 
	d.  The Military Personnel Office (MILPO) of Reserve Component personnel will make a copy of the report and file it in the permanent section of the MPRJ and update the DA Form 2-1.  Additionally, for AGR Soldiers, the MILPO forwards the completed report to ARPERCEN for filing.

	e. Paragraph 4-2a, an evaluation report accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, has been prepared by the proper rating officials, and represents the considered opinion and objective judgment of rating officials at the time of preparation.  

	f.  Paragraph 4-2c, the rated Soldier or another interested party who knows the circumstances of a rating may appeal any report that he or she believes to be incorrect, inaccurate, or a violation of the regulation.  The results of a commander's inquiry do not constitute an appeal but may be used in support of an appeal. 

	g.  Paragraph 6-7, the rated Soldier's signature verifies the administrative data and duty description are correct and verifies the accuracy of the fitness test and height and weight.  It does not constitute agreement or disagreement with the rating. 

19.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Paragraph 2-3 provides for the filing of unfavorable information in the performance portion of the official military personnel file (OMPF).  It also states EERs are governed by Army Regulation 623-205 (at the time) and that reports will be filed in accordance with Army Regulation 640-10 (Individual Military Personnel Records).

20.  Army Regulation 640-10 assigns and identifies responsibilities for maintaining and controlling the OMPF, MPRJ, and career management individual file, and identifies documents authorized for filing in personnel records.  The version of the regulation in effect at the time states the DA Form 2166-6 series will be filed in the performance section of the OMPF.

21.  Army Regulation 601-1 covers the selection, training, and management of personnel for USAREC.  Specifically, this regulation prescribes the procedures, criteria, and personnel actions required for the selection and assignment of Regular Army and Reserve enlisted personnel for service as U.S. Army recruiters; it outlines the policy concerning selection and assignment of enlisted personnel to USAREC administrative support positions; and it prescribes the management policies applicable to all enlisted personnel while assigned to USAREC.  The version of the regulation in effect at the time states:
	a.  Paragraph 3-4, an AGR tour length will be as directed by Headquarters, Department of the Army, Office of the Chief, Army Reserve, and Commander, ARPERCEN.

	b.  Paragraph 5-3, the Commanding General, USAREC may recommend the involuntary reclassification and/or reassignment of Army recruiters whose performance does not meet USAREC retention standards.  Recruiters may be considered for involuntary reassignment as unqualified, ineffective, or unsuitable at any time (emphasis added) or upon completion of stabilization.  The provision for involuntary reassignment applies to all recruiters, detailed and cadre.  Involuntary reassignment as unqualified or ineffective will be requested only after a determination that adequate assistance, training, supervision, and counseling, or medical rehabilitation will not be or was not effective to correct inadequacies.  The requirement for remedial training, assistance, and counseling procedures specified for ineffective or unqualified recruiters is not applicable to recommendations for the involuntary reassignment of unsuitable recruiters except as indicated in other pertinent parts of the regulation.

	c.  Paragraph 5-5, recruiters may be considered ineffective for failure to respond to training, performance, counseling, and other guidance; failure to attain or sustain assigned production standards for Army enlistments, unsatisfactory performance in accordance with established objectives and standards, or failure to develop the necessary skills to be a successful recruiter; or failure to maintain adequate knowledge of regulations, programs, policies, and procedures related to recruitment and enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant held MOS 71L prior to assignment as a field recruiter.  He completed the Army Recruiter Course on 9 August 1985 and he was subsequently assigned to the U.S. Army Recruiting Battalion, CA, on a 3-year tour.  Individuals assigned to recruiting duty represent the U.S. Army in the civilian community.  Such assignments require high standards of knowledge, effectiveness, physical appearance, fitness, honesty and integrity.  Each individual assigned to recruiting duty must maintain these standards.

2.  The evidence of record shows he received an Annual EER covering
12 months of rated time wherein his rating official described him as an average recruiter with work ethics that produced inconsistent results and that he did not achieve his mission with respect to non-prior service applicants or volume requirements.  He was also recommended for reclassification from recruiting duty and placement into an organization where his progress could be supervised.
3.  Subsequent to this substandard EER, he was relieved from his duties as a recruiter.  The regulation in effect at the time stipulated that recruiters may be considered for involuntary reassignment as unqualified, ineffective, or unsuitable at any time.  It appears the applicant's chain of command considered him an ineffective recruiter for failure to attain or sustain assigned production standards for Army enlistments, unsatisfactory performance in accordance with established objectives and standards, or failure to develop the necessary skills to be a successful recruiter.  Accordingly, he was relieved from his duties and involuntarily reassigned.

4.  Although his relief packet is not available for review with this case, the brigade commander, who reviewed the relief packet, clearly stated in his memorandum that the applicant was notified of his relief.  Additionally, there is no evidence that the contested EER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy at the time.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested EER, or that they exercised faulty judgment in evaluating him as they did.  Therefore, there is no grounds to remove this EER from his official records or place a memorandum of non-rated time in his records.

5.  The evidence of record also shows he was selected for promotion to SFC/E-7 in MOS 00E while in the AGR program and his name was posted to the Promotion Standing List.  However, shortly after receiving the Relief for Cause EER, it appears his chain of command recommended that he be removed from recruiting duty and reclassified prior to completing his tour as a recruiter.  It appears based on these actions the applicant was no longer performing recruiter duties and he no longer held a recruiter MOS.  Therefore, his records were considered by a STAB that recommended that he be removed from the Promotion Standing List.  

6.  He continued to serve in the AGR program in the rank/grade of SSG/E-6 in MOS 71L, for another 8 years until retirement.  He did not appeal the Relief for Cause EER.  Additionally, he may have been considered by subsequent enlisted selection boards for promotion but there is no evidence he was either selected for or promoted to SFC/E-7.  He ultimately retired as an SSG/E-6.

7.  With respect to his contention that this Board should conduct an in depth and thorough review of his records to determine his promotion eligibility, the ABCMR is neither a promotion board nor an investigative agency.  A properly-constituted promotion board previously selected him for promotion and a properly-constituted STAB appears to have removed him from the standing list.  In view of the foregoing evidence, he is not entitled to the requested relief.
8.  With respect to the DA Form 2-1 entry, the DA Form 2-1 was a record of a Soldier's personnel management qualifications in the form of data and it is not maintained or updated subsequent to a Soldier's separation from active duty.  Therefore, there is no provision to correct his DA Form 2-1.

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)                                         AR20100015384



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ABCMR Record of Proceedings (cont)                                         AR20100015384



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