IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100022364 


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 adjustment of his effective date of promotion to sergeant first class (SFC)/E-7 in the Oregon Army National Guard (ORARNG) from 10 July 2010 to 2 May 2005.

2.  The applicant states the ORARNG Active Guard Reserve (AGR) promotion practice from 2005 to the present is unfair and fraudulent.  He was denied promotion due to:

* an intentional late submission of his DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report [NCOER])
* alleged non-availability of a vacant duty position
* erroneous removal from the promotion list

3.  In 2003 and 2004, his NCOERs were submitted on time.  However, his rater at the time did not forward those two NCOERs to his official records until
18 months later.  Additionally, the December 2002 through December 2003 NCOER contained a forged signature (the signature of the senior rater is not valid).  It is unclear why his rating officials elected to wait a long time to submit the reports.  He believes his commander/reviewer at the time is "suspicious of fraudulent management or professional misconduct."  The transmittal date of both reports is shown as April 2005, 16 months after the through date of the first report and 5 months after the through date of the second report, a clear evidence of misconduct, mismanagement, unfair promotion practice, and fraud.  This 

untimely submission caused his 2005 promotion points to fall below the required minimum for promotion to SFC/E-7.  Had the NCOERs been submitted on time, without discrimination from the rater, it was reasonably expected that he would have been promoted.

4.  He further states that in 2005 he was placed on the 2005 AGR SFC EPS (Enlisted Promotion System) list with 444 points.  The absence of the NCOERs denied him 167 points which would have given him 611 points and would have placed him third from the top of that list for promotion eligibility to SFC.  This is clear undeniable evidence of unfair treatment, outright incompetence in the promotion management or a deliberate and intentional fraud done to deny him promotion to SFC.  He also states that in 2006, he obtained sufficient promotion points and his NCOERs were submitted on time.  He had 577 points; however, the State claimed that there were no existing vacancies to promote him despite having five individuals promoted.  He cannot confirm that the five promotions occurred in 2007, but he is sure they occurred before 2008.

5.  In 2007, while deployed to Afghanistan, he was removed from the promotion list by the Commander, 141st BSB (Brigade Support Battalion) because of numerous incidents.  But these incidents were minor in nature and none was documented.  Otherwise, he would have been disciplined in theater.  He utilized his due process and appealed.  He was assured no adverse action would be initiated against him.  He accepted this assurance and carried on with his duties, yet in 2008, upon release from active duty (REFRAD), he was removed from the promotion list with no specific reason other than a memorandum from the State Adjutant General (AG).

6.  He further states an investigation was conducted by a retired colonel who concluded that the allegations of sexual harassment were unfounded and the insubordination did not occur.  Yet, the 41st Infantry Brigade Combat Team (IBCT) refused to reinstate him to the promotion eligibility.  He was removed from the promotion list due to a misunderstanding related to his deployment status.  But he was never given any impression that he was being allowed further opportunity to succeed. 

7.  He adds that finally, in 2009 and 2010, the State AG allegedly ordered his removal from the promotion list but when he met him, he (the applicant) was informed that there was neither adverse an administrative flag in his records nor any permanent reprimand as he was led to believe by the Commander,
41st IBCT.  The AG acknowledged that the removal was in error and directed he be promoted as soon as administratively practicable.


8.  The applicant provides:

* the AG's memorandum for record (MFR), dated 30 June 2010
* two DA Forms 2166-8 for the period 200212 through 200311 and 200312 through 200411
* the 2005, 2006, 2008, and 2009 AGR SFC EPS lists
* his 2005 Leadership Appraisal Worksheet, E-7 Board
* a National Guard Bureau (NGB) Form 4100-1-R-E (Enlisted Promotion Point Worksheet)
* a SIDPERS Input and Control Data Authentication and Transmittal
* a memorandum, subject: Request for Review, EPMS Score, dated
31 August 2005
* a memorandum, subject: Recommendation of REFRAD [Applicant] from the AGR Program, dated 20 February 2008
* a redacted sworn statement from an unknown individual
* Orders 249-011, dated 6 September 2002 (orders to active duty)
* Orders 030-177, dated 30 January 2006 (orders to active duty)
* his DA Form 2823 (Sworn Statement), dated 8 August 2008
* a DA Form 1559-R (Inspector General (IG) Action Request)
* a letter to the Department of the Army IG, dated 30 March 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 26 February 1961.  

2.  Having had prior service in the U.S. Marine Corps, his records show he enlisted in the ORARNG in the rank/grade of sergeant (SGT)/E-5 on 19 May 1989 and he held military occupational specialties (MOS) 19D (Cavalry Scout) and 92Y (Unit Supply Specialist).  He served through multiple extensions in the ARNG.

3.  On 22 January 1999, he was ordered to full-time National Guard duty (FTNGD) in an AGR status under Title 32, U.S. Code, for a period of 3 years
(22 January 1999 through 21 January 2002) to serve as a supply specialist.  He was assigned to the 3rd Squadron, 116th Armored Cavalry Regiment, La Grande, OR.  He was promoted to staff sergeant (SSG)/E-6 on 24 March 2001.

4.  On 21 December 2001, he was ordered to FTNG in an AGR status for a period of 1 year (22 January 2002 through 21 January 2003) to serve as the unit armorer.

5.  On 3 June 2002, the ORARNG issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (commonly known as the
20-year letter).  

6.  On 1 November 2002, Headquarters, ORARNG, published Orders 305-025 announcing the applicant's promotion to SFC/E-7, effective and with a date of rank of 1 November 2002.

7.  In November 2003, he received an annual NCOER covering the rated period December 2002 through November 2003 for his duties as a property book and accounting NCO.  This NCOER was signed by the applicant and all rating officials on 1 December 2004.  It shows: 

	a.  his rater box-checked "Need Improvement" in 4 out of 5 areas (Competence, Leadership, Training, and Responsibility and Accountability) and box-checked his overall potential as "Marginal."  

	b.  his senior rater also rated his overall performance as "4 - Fair" and his overall potential as "3 - Superior [low end]."

8.  On 30 March 2004, he accepted a voluntary administrative reduction from SFC/E-7 to SSG/E-6 for personal reasons (reassignment to another Title 32 position).

9.  In November 2004, he received an annual NCOER covering the rated period December 2003 through November 2004 for his duties as a unit supply clerk. This NCOER was also signed by the applicant and all rating officials on 1 December 2004.  It shows:

	a.  his rater box-checked "Success" in 4 out of 5 areas (Competence, Leadership, Training, and Responsibility and Accountability) and "Excellence" in 1 area (Physical Fitness and Military Bearing).  He also box-checked his overall potential as "Fully Capable."

	b.  his senior rater also rated his overall performance as "3 - Successful [low end]" and his overall potential as "2 - Superior [middle]."

10.  The applicant's name is listed as one of two names in MOS 92Y on the
2005 AGR SFC EPS List.  The applicant's score is shown as 444 out of a possible 1000.  The score consists of the total points assigned to awards and decorations (80), time in grade (50), time in service (50), weapons

qualification (80), Army Physical Fitness Test (80), other resident courses (80), self-development courses (80), post secondary courses (100), and average leadership score (400 - 180 for performance and 220 for potential).  The average leadership score is a subjective evaluation of the Soldier based on review of the member's promotion file.  Individuals competing for promotion are responsible for ensuring their promotion file is complete and accurate.

11.  In November 2005, he received an annual NCOER covering the rated period December 2004 through November 2005 for his duties as a unit supply clerk.  This NCOER was also signed by the applicant and his rating officials on 1 December 2005.  It shows:

	a.  his rater box-checked "Success" in 4 out of 5 areas (Competence, Leadership, Training, and Responsibility and Accountability) and "Excellence" in 1 area (Physical Fitness and Military Bearing).  He box-checked his overall potential as "Fully Capable." 

	b.  his senior rater also rated his overall performance as "3 - Successful [low end]" and his overall potential as "3 - Superior (low end)."

12.  He was honorably REFRAD on 23 February 2006 by reason of completion of his required active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period (January 1999 to February 2006) shows his rank/grade as SSG/E-6.

13.  On 24 February 2006, he was ordered to active duty in support of Operation Enduring Freedom and he subsequently served in Afghanistan from 16 June 2006 to 9 May 2007.  While in Afghanistan, he was assigned as a logistical specialist to B Company, 141st LTF (Logistical Task Force), Camp Phoenix, Afghanistan.

14.  In October 2006, he received an annual NCOER covering the rated period 24 February 2006 through 31 October 2006 for his duties as a logistical specialist.  This NCOER was signed by the applicant and his rating officials on 9 November 2006.  It shows:

	a.  his rater box-checked "Success" in 4 out of 5 areas (Competence, Leadership, Training, and Responsibility and Accountability) and "Excellence" in 1 area (Physical Fitness and Military Bearing).  He box-checked his overall potential as "Fully Capable."

	b.  his senior rater also rated his overall performance as "2 - Successful [middle]" and his overall potential as "2 - Superior [middle]."  

15.  The applicant's name is listed as one of several names in MOS 92Y on the 2006 AGR SFC EPS List with a score of 577.  Several other individuals from other units who also held MOS 92Y are also listed on this list, all with scores less than that of the applicant's.

16.  He was honorably REFRAD on 29 June 2007 by reason of completion of his required active service.  His DD Form 214 for this period (February 2006 to June 2007) shows his rank/grade as SSG/E-6.

17.  On 30 June 2007, he was ordered to FTNGD in an AGR status as an SSG under Title 32, for a period of 1 year, 6 months, and 23 days (30 June 2007 through 21 January 2009) to serve as an NBC (Nuclear, Biological, and Chemical) NCO with Headquarters and Headquarters Company (HHC), 141st BSB (Rear), Portland, OR.

18.  On 20 February 2008, by memorandum addressed to the State AG, the applicant's battalion commander recommended the applicant be released from the AGR program but retained as a traditional Soldier.  He stated:

	a.  the applicant displayed a history of inappropriate behavior toward coworkers and supervisors.  Numerous attempts to rehabilitate him and place him into a position to succeed had failed.  The most recent complaints were in January 2008 when he violated Army Regulation 600-20 (Army Command Policy) in relation to discrimination and prevention of sexual harassment.  He did not understand how to apply appropriate behavior in the work place.  Specifically, he created a hostile work environment for his subordinates by having a cell phone ring tone of a sexually explicit noise, making comments to a Soldier about her body size and shape, grabbing her necklace from under her t-shirt, calling her cell phone unnecessarily and asking personal questions, and asking her out to a Christmas party.

	b.  over the past 5 years, the applicant had been placed in six different work situations under six different supervisors in order to find a position so he could succeed as an AGR Soldier.  In all situations he continued to have problems with understanding and maintaining appropriate behavior with co-workers and supervisors.  In all but one case, he was removed from the position following a demonstrated inappropriate behavior on his part.  Over time, he exhibited a pattern in that he failed to accept responsibility for his own behavior and modify it to become a successful AGR Soldier.  

	c.  in January 2008, two complaints were received by the immediate commander indicating the applicant had harassed two female Soldiers.  While conducting a follow-up, he (the battalion commander) became aware that this type of behavior was not in isolation and that previous supervisors had similar problems with the applicant.  Once sworn statements were gathered, he (the battalion commander) realized the situation was beyond the ability of the company chain of command to handle.  The applicant was ordered removed from his position pending a recommendation for removal from the AGR program.

	d.  due to the seriousness of the situation and the applicant's inappropriate conduct, his past incidents of misbehavior, and the command's failed attempts to correct his behavior and rehabilitate him, he recommended the applicant's removal from the AGR program.  His conduct was a detriment to good order, discipline, and positive work environment.  It undermined cohesion, damaged morale, and interfered with unit effectiveness.

19.  On 22 February 2008, the battalion commander counseled the applicant regarding his insufficient experience and knowledge in personal and professional qualities.  Specifically, the battalion commander cited the applicant's lack of understanding and applying the AG's command policy regarding "discrimination and prevention of sexual harassment" by creating a hostile environment within his section.  The applicant disagreed and alleged that the entire AGR system was biased.

20.  Additionally, on 22 February 2008, the battalion commander counseled the applicant regarding his recommendation to remove him from the AGR program.  The applicant disagreed with the wording of the counseling statement.   However, it is unclear what action his chain of command took on the recommendation for the REFRAD.

21.  On 18 August 2008, the applicant's battalion commander reprimanded the applicant for:

* insubordinate conduct toward a warrant officer
* conduct to prejudice good order and discipline
* violation of the Army internet policy

The battalion commander stated that the applicant used a military computer on 29 July 2008 for personal use while neglecting his own duties.  When corrected, he displayed an insubordinate conduct toward a warrant officer and in the presence of several Soldiers.

22.  On 9 January 2009, he was ordered to FTNGD in an AGR status as an SSG under Title 32, for a period of 6 months (22 January 2009 through 21 July 2009) to serve as a Property Book NCO with HHC, 41st IBCT, Portland.

23.  On 15 May 2009, the applicant's immediate commander counseled the applicant for misconduct.  The immediate commander indicated that he intended to remove him from the Promotion Eligibility Roster (PER).  The applicant disagreed.

24.  On 19 May 2009, by a DA Form 4187 (Personnel Action) the Commanding General (CG), 41st IBCT, ordered the applicant removed from the 2009 Enlisted Promotion List by reason of misconduct.

25.  On 30 June 2010, the State AG submitted his findings and conclusions with regard to the applicant's NCOER and promotion complaint.  He stated:

	a.  in 2005, the applicant was placed at the bottom of the promotion list due to the untimely submission of his NCOER.  The cause for the late submission is inconclusive.  The effect remains the same.

	b.  in 2006, the applicant was at the top of the list for MOS 92Y but he was not promoted because of the lack of MOS 92Y vacancies.  The cause for the no vacancies is inconclusive.  The effect remains the same.

	c.  in 2007, the applicant was removed from the promotion list due to several incidents of misbehavior while in theater with various elements of leadership within Joint Task Force Phoenix.  The effect remains the same.

	d.  in 2008, the applicant was removed by command as a request for his REFRAD because of sexual harassment and insubordination issues.  The effect remains the same.

	e.  in 2009/2010, the applicant was removed from the list by the command.  Request to REFRAD was deferred to allow him another opportunity.  Later, during an SRP (Soldier Readiness Processing), medical command personnel determined the applicant was non-deployable due to an apparent misunderstanding of the applicant's status, the CG directed the applicant's removal from the promotion list.

	f.  the applicant had demonstrated little or no patience for lack of self-control in numerous situations - both stressful and otherwise - over the past 8 to 10 

years.  This behavior had been repeated under at least five different commands and numerous combinations of officers and NCOs across three major commands and vast geographic dispersion.  This includes deployment to Afghanistan and duty with leadership outside the ORARNG.  The applicant stated that he had been repeatedly treated for clinical depression and anxiety since October 2002.  

   g.  the facts did not corroborate the applicant's allegations of conspiracy committed by numerous individuals.  In fact, there had been deliberate efforts to allow him to have a fresh start on multiple occasions with new leadership.  There is no conclusive evidence of malfeasance by the individual in the applicant's complaints, in the execution of their assigned duties or otherwise.

	h.  in regard to the 2005 and 2006 promotion list, there is reason for concern.

	i.  in regard to the 2007 and 2008 promotion list, the removal was conducted appropriately.

	j.  in regard to the 2009 and 2010 promotion list, the transition and change of authority from a deploying to a non-deploying command and the deferral of the REFRAD request, created uncertainties as to the applicant's status.  In view of these uncertainties, the State AG directed the applicant's promotion to SFC/E-7 as soon as administratively practicable and retiring him in this grade on 31 October 2010.

26.  On 23 July 2010, Joint Force Headquarters, ORARNG, published Orders 204-003 announcing his promotion to SFC/E-7, effective 19 July 2010, in accordance with Army Regulation 600-8-19 (Enlisted Promotion and Reductions), paragraph 7-20.

27.  On 3 August 2010, Joint Force Headquarters, ORARNG, published Orders 215-010, ordering his release from active duty, effective 31 October 2010, and placement on the retired list in his retired rank/grade of SFC/E-7 effective 1 November 2010.

28.  He was retired on 31 October 2010.  His DD Form 214 for this period (June 2007 to October 2010) shows his rank/grade as SFC/E-7 and he completed 20 years and 8 days of creditable active service.

29.  In the processing of this case, on 24 March 2011, an advisory opinion was obtained the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended disapproval of the applicant's request as follows:

	a.  The applicant was promoted to SFC/E-7 effective 1 November 2002 as a unit supply specialist in the Title 32 AGR program for the ORARNG.  On
1 August 2003, the applicant requested a transfer within the Title 32 AGR program due to hardship conditions.  Army Regulation 600-8-19, chapter 10, section 10-19b states, "A Soldier may volunteer in writing for reduction to any lower grade for reassignment to another position."  He accepted an administrative reduction to SSG/E-6 on 16 April 2004 as a condition of his transfer in the Title 32 AGR program.

	b.  For unknown reasons, the applicant's NCOER for the 2004 rating period was not submitted in a timely manner for consideration to the promotion board.  This contributed to the Soldier being placed last on the 2005 92Y AGR promotion list.  However, the only Soldier who was promoted from this list was promoted within a fenced unit (duty positions within the unit are restricted to assigned personnel only for promotion).  The State acknowledged the error, but ultimately did not influence the non-selection for promotion, as the applicant was not assigned to the fenced unit.

	c.  When the 2006 92Y AGR promotion list was released, the applicant received 577 points, which placed him second on the list.  Two Soldiers were promoted from this list.  One Soldier was promoted effective 1 April 2007.  He was found most qualified being placed first on the list having received 606 points. The other Soldier was promoted effective 19 December 2006.  He was chosen from those applicants who responded to an announcement for a request to fill a vacant authorized position.

	d.  The applicant was removed from the 2007 92Y AGR PER.  In a developmental counseling form, dated 21 February 2007, the applicant requested to be removed from the 2007 92Y AGR PER to allow himself more time for personal and professional development.

	e.  The applicant was removed from the 2008 92Y AGR promotion list by his battalion commander.  In a developmental counseling form, dated 22 February 2008, the applicant was removed from the 2008 PER due to insufficient experience and knowledge in personal and professional qualities and qualifications.  On 20 February 2008, his battalion commander recommended the applicant's removal from the AGR program, but retention as a traditional member of the ORARNG on 20 February 2008.  This was later deferred to allow the applicant another opportunity to succeed.

	f.  The applicant was also removed from the 2009 92Y AGR promotion list by his battalion commander.  In a developmental counseling form, dated 15 May 2009, the applicant was removed from the 2009 PER due to misconduct.  On 18 August 2008 a letter of reprimand was signed by his battalion commander for insubordination toward a warrant officer and conduct to prejudice good order and discipline in reference to an incident that occurred on 29 July 2008.  Army Regulation 600-8-19, chapter 7-44, states, "Commanders may recommend that a Soldier’s name be removed from an approved [promotion] list at any time."

	g.  The ORARNG conducted an investigation in regard to the applicant’s NCOER and promotion complaint.  On 30 June 2010, a memorandum for record was completed with the results from the investigation.  The investigation found that the applicant was removed from the promotion list in 2009-2010 due to a misunderstanding of his status.  As a result, the State AG directed that "In recognition of the uncertainties of the 2009-2010 command-directed removal, I direct the Joint Forces Headquarters G-1 to promote the Soldier to SFC as soon as administratively practicable."  Accordingly, he was promoted to SFC/E-7, effective 19 July 2010.

	h.  After review of the documentation provided by the applicant and the ORARNG, there is no conclusive evidence to show he should have been promoted prior to 19 July 2010.

30.  On 1 April 2011, the applicant submitted a lengthy rebuttal wherein he requested the ABCMR reject the entire advisory opinion.  He argued:

	a.  Although he requested a transfer he was never given a response.  He heard through the grapevine that the position he was seeking was backfilled.  As time passed, he gave up on the idea and assumed his request was denied. Although he ultimately accepted an administrative reduction, the transfer issue was never explained.  

	b.  His 2004 NCOER was not timely filed in his official records.  It was signed by his former first sergeant at the same time the previous NCOER (2003) was signed.  It appears someone filed both NCOERs at the same time.  He raised the issue with his sergeant major (SGM) but he never received a response from him. His former SGM never supported him.

	c.  It is his understanding that regardless of whether the positions were fenced or not, promotions were at the discretion of the State G-1.  He (the applicant) had previously filed an IG complaint against the G-1 for matters related to his previous command in the 3rd Squadron, 116th Cavalry, because the G-1 "exercised undue influence upon fair treatment and equal opportunity" against him and "personal reprisal actions before and after the IG action request." 

	d.  He believes the NGB may have a second promotion list because the 2006 AGR list listed him as the number 1 92Y whereas the advisory opinion states that he was number 2.  Additionally, the State promoted other "desirable" 92Ys, but not him.  Although the promotion of others is not the issue here, the State can not turn around and claim there were no vacancies.  Additionally, since the NGB gets its information from the State, it appears the NGB's opinion is also faulty.

	e.  His developmental counseling was faulty and was conducted under extreme coercion by his former first sergeant and/or former SGM.  It appears both were either incompetent or cowardly.  He, the applicant, only signed the developmental counseling because he felt he had no other choice.  Nevertheless, the very next day, he complained through the chain of command and he was assured that this counseling would not go forward or affect his promotion.  However, this promise was broken because the counseling was sent forward and he was "stabbed in the back" and removed from the promotion list.  It was a reflection of a "deep lack on integrity and ethics which are common in the ORARNG among the higher-up."

	f.  He was removed from the 2008 list by a REFRAD action that ultimately failed due to incompetence and racism.  The higher ups failed to give him an answer.  He heard that his REFRAD was dropped but no one could answer the question why he was not reinstated on the promotion list.  He was given nothing but harassment, intimidation, and hostility.  The REFRAD was never deferred at any point and there was no action taken to defer the REFRAD.

	g.  If he was removed from the 2009 promotion list, then he should not have been listed on any other lists, yet his name is listed as the only 92Y with 503 points on the AGR 2009 SFC list.  By this time, he has grown frustrated and no longer cared what MOS he had.  He continued to believe the G-1 was engaged in foul play.  He was subject to hostile action from all directions and his rebuttals exposed more of the shame and incompetence of ORARNG officials.  

	h.  The year 2009 was polluted with inappropriate actions by the chain of command at the brigade and at the State levels.  He ultimately met with the CG, 41st IBCT who informed him that the reprimand written by the battalion commander was not in the file, yet the NGB advisory opinion clearly shows it is in his file.  He believes the CG, 41st IBCT was attempting to discourage him from meeting with the State AG.  This is another indication of the leadership style and competence of officials within the ORARNG.

	i.  He does not trust the integrity of the NGB or any entity associated with the ARNG.  He has grievances pending at the office of the IG.  His issue is against the ARNG, not the ABCMR.

31.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 7 provides for promotion and reduction of ARNG enlisted personnel.   It states the State AG is the convening and promotion authority for all promotion boards to SGT through SGM.  They may delegate this authority to their Assistant AG (Army) or Deputy Commander, Joint Forces Headquarters.  They also may delegate promotion authority to subordinate commanders.

	a.  Paragraph 7-22 states Soldiers may be promoted into vacant positions on the basis of selection by a promotion board and placement in the selection objective of a promotion list (with certain exceptions).  All documented positions, including those on carrier unit identification codes (UICs), provisional units, and derivative UICs that are part of the States structure are valid for promotion purposes, subject to the policies of National Guard regulations.  

	b.  Paragraph 7-28 states that States will conduct annual promotion boards for each grade and publish a promotion list.  The selection objective will list in promotion sequence the best qualified Soldiers who will be assigned to current vacancies (within the State structure) in higher graded positions that go with the promotions.  The promotion list is neither a permanent standing list nor an order of merit list.  Each promotion list published by the State AG is a new list and is intended to remain valid until exhausted or expires on the date established by the State AG.  Once considered and selected for promotion and assigned to a valid position, per paragraph 7–40, Soldiers are promotable and may be promoted with an effective date and DOR on the date they are assigned to the valid higher graded position.

	c.  Paragraph 7-29 states that State AG will publish a separate memorandum to charge boards and evaluators.  This memorandum will provide the guidance for board members to use when considering Soldiers for promotion to higher grades.  It will cover such topics as the demonstrated application of Army Values, the role of the NCOER system, the Soldiers’ overall performance and demonstrated potential to serve at higher levels of skill and responsibility, trends in efficiency, accomplishments in military and civilian education and self-study, scope and variety of assignments emphasizing performance in difficult assignments, duties and responsibilities considered of great value to the organization, performance in areas of special emphasis such as safety, 

accountability, and support of recruiting, retention, family, employer and community support efforts, the significance of adverse and derogatory information, information on administrative and physical limitations, physical condition and readiness as shown in personnel records, personal readiness, sensitivity to minority group members and female Soldiers, cautions against prohibited and unlawful consideration factors such as spouse employment, involvement and activities, and other information the AG wishes to convey to promotion boards.

	d.  Paragraph 7-31 provides for individual Soldier's action.  It states the data on NGB Form 4100-1-R-E are taken from the SIDPERS [Standard Installation/
Division Personnel System]-ARNG database and are the basis for promotion consideration.  Soldiers will verify the accuracy of entries and update the data as required.  Soldiers will accept or decline consideration in their own handwriting on the form.  They also mark (handwritten X) one or more of the options provided in part IV of the NGB Form 4100-1-R-E (or a State supplemental list of options).  These options show where they are available for assignment and promotion to the higher grade as provided in paragraphs 7-29a(2) and 7-30d, and their agreement to apply for and complete required training, per paragraph 7-30d.  Soldiers who cannot do so in person may accomplish these tasks using one of the alternate means in paragraph 7-30.  States will not pre-select options; this option is the sole decision of the Soldier.

	e.  Paragraph 7-34 states the complete evaluation process is a board process and will be modeled on the following guidelines.  States may vary from this model provided every Soldier in each grade is evaluated the same way.  For instance, states may prescribe formal, joint boards at the State Headquarters for senior boards, and decentralized or informal boards at major subordinate command or regional levels, or any combination of these.  These decisions may be made based on resource, distance, time, leader availability, and troop population factors decided by the State.

	f.  Paragraph 7-35 (Evaluating Soldiers for promotion) states board members will evaluate Soldier performance and potential using the whole Soldier concept. The sum of each Soldier’s qualities and qualifications, matters of record, past performance with the heaviest weight given to the recent past, and the Soldier’s potential to serve in positions of greater responsibility will be considered objectively.

	g.  Paragraph 7-37 (Determining selection objective) states that the State will determine the number of Soldiers required for promotion in each grade and MOS 

based upon current vacancies, positions occupied by junior grade Soldiers, whether promotable or not; vacancies projected during the life of the promotion list (approximately 1 year) including grade vacancies on carrier UICs that will become effective during the life of the list; a statistically relevant projection to allow for attrition from the list; and an allowance for AGR Soldiers who may rank high on the list but be ineligible or unavailable for a significant number of anticipated vacancies based on State program experience. 

	h.  Paragraph 7-39 states the State will, in concert with the State HRO, determine the methods to request, assign, and promote Soldiers, including those who are AGR, to available vacancies throughout the State in promotion sequence using the guidance in this paragraph.  Under no circumstances will a Soldier on a promotion list be bypassed who is eligible and available for the vacancy.  When the promotion list is published, Soldiers are eligible for immediate assignment to positions and, if qualified, promotion concurrent with the assignment.  Assignment to a position from the promotion list as the first Soldier in sequence eligible and available for the position assures the promotion. 

	i.  Paragraph 7-40 (Selection of Soldiers from promotion lists) states Soldiers will be offered assignment to available vacancies for which they are eligible and available starting with the lowest promotion sequence number (having the most points) within each MOS and continuing until the selection objective is exhausted, all vacancies are filled, or the list expires.  AGR Soldiers only compete against other AGR Soldiers within the same MOS. 

	j.  Paragraph 7-44 (Command initiated removal) states commanders may recommend that a Soldier’s name be removed from an approved list at any time. When recommending a Soldier for removal, the following must be considered:  punishment under UCMJ or criminal conviction or nonpunitive measures will not automatically be the sole basis to suggest that a Soldier’s name be removed from the list; the Soldier’s conduct before and after the punishment or nonpunitive measures and facts and circumstances leading to and surrounding the misconduct must be considered; and to remove a Soldier based solely on a minor or isolated incident of misconduct may be unfair to the Soldier.  Removal from a promotion list has far-reaching, long-lasting effects on the Soldier.  Commanders will evaluate the circumstances to ensure that all other appropriate actions have been taken (training, supervision, and formal counseling have not helped) or the basis for considering removal is serious enough to warrant denying the individual’s promotion.  The commander may submit a recommendation for removal for other derogatory information received in official 

channels, but not filed in the Soldier’s official records, if it is substantiated, relevant and reasonably and materially affects a promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a negative and substandard annual NCOER during the period December 2002 through November 2003.  It is unknown why this NCOER was not timely filed.  Nevertheless, it is reasonable to presume that his promotion score would not have been higher if this negative NCOER had existed in his records.  There is no evidence this negative NCOER would have been viewed positively by board members or would have added any promotion points to his total score.  It is also reasonable to presume he might not have been selected for promotion with such negative NCOER in his records.

2.  The applicant received an annual NCOER during the period December 2003 through November 2004.  This NCOER was signed by his rating officials on
1 December 2004 and forwarded for filing in his official records.  It is unclear why it was not filed in his official records until 5 months later.  Nevertheless, although 5 months is not an overly excessive period, the applicant had a responsibility to ensure his promotion file was complete prior to the convening date of the 2005 promotion board.  It is unclear if he did so.  In 2005, he was placed at the bottom of the promotion list, partially due to the untimely submission of his NCOER.  However, the late submission would not have changed the outcome of his score.

3.  In 2006, the applicant was at the top of the list for MOS 92Y but he was not promoted because there were no 92Y MOS vacancies.  By regulation, the State, not the applicant, determines the number of Soldiers required for promotion in each grade and MOS based upon current vacancies; positions occupied by junior graded Soldiers, whether promotable or not; vacancies projected during the life of the promotion list (approximately 1 year); a statistically relevant projection to allow for attrition from the list; and an allowance for AGR Soldiers who may rank higher on the list but be ineligible or unavailable for a significant number of anticipated vacancies based on State program experience.  The applicant's argument that other Soldiers were promoted is speculative.  He is not privy to the overall strength or personnel posture within the State.

4.  In 2007, the applicant was removed from the promotion list due to several incidents of misbehavior while in theater with various elements of leadership within Joint Task Force Phoenix.  His release was warranted because of his misbehavior.  In a developmental counseling, the applicant requested more time for personal and professional development.

5.  In 2008, he was removed by the chain of command as part of a request to have him released from active duty because of sexual harassment and insubordination issues.  During this period, his commander counseled him regarding his (the applicant's) insufficient experience and knowledge in personal and professional qualities and qualifications.  On 20 February 2008, the applicant’s battalion commander recommended his removal from the AGR program, but retention as a traditional member of the ORARNG.  This was later deferred to allow another opportunity for him to succeed.

6.  In 2009/2010, the applicant was removed from the promotion list by the command.  The request for his release from active duty was deferred to allow him another opportunity.  Later, medical command personnel determined the applicant was non-deployable due to an apparent misunderstanding of the applicant's status; therefore, the CG directed the applicant's removal from the promotion list.  In a developmental counseling form, the applicant was removed from the 2009 PER due to misconduct.  Additionally, in August 2008 a letter of reprimand was signed by his battalion commander for insubordination toward a warrant officer and conduct prejudicial to good order and discipline in reference to an incident that occurred on 29 July 2008.  

7.  According to the State AG, the applicant had demonstrated little or no patience or lack of self-control in numerous situations - both stressful and otherwise - over the past 8 to 10 years.  This behavior had been repeated under at least five different commands and numerous combinations of officers and NCOs across three major commands and vast geographic dispersion.  This includes deployment to Afghanistan and duty with leadership outside the ORARNG.  The applicant stated that he had been repeatedly treated for clinical depression and anxiety since October 2002.

8.  The facts did not corroborate his allegations for conspiracy committed by numerous individuals.  In fact, there had been deliberate efforts to allow him to have a fresh start on multiple occasions with new leadership.  There is no conclusive evidence of malfeasance by the individual in the applicant's complaints, in the execution of their assigned duties or otherwise. 

9.  Nevertheless, the State AG ultimately directed the applicant's promotion to SFC/E-7 as soon as administratively practicable and retiring him in this grade on 31 October 2010.  He was ultimately promoted and retired in that rank/grade.  

10.  His contentions regarding fraud, conspiracy, favoritism, unfair treatment, and outright incompetence are speculative and lack concrete evidence.  Aside from 

his dissatisfaction, his record - at least in the past 5 years - is marred with various instances of misconduct and disciplinary problems.

11.  In view of the foregoing, there is insufficient basis for granting the applicant's 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)                                         AR20100022364



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ABCMR Record of Proceedings (cont)                                         AR20100022364



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