IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100027630 


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 (SFC)/E-7.

2.  The applicant states:

	a.  he was repeatedly passed over for promotion to SFC due to a personality conflict and his first sergeant's (1SG) dislike towards him;

	b.  he completed more than the required military educational training necessary for promotion to SFC which includes:

* Primary Noncommissioned Officer Course
* Basic Noncommissioned Officer Course
* Advanced Noncommissioned Officer Course (ANCOC)

	c.  he remained a staff sergeant (SSG)/E-6 for 15 years while all of the Soldiers who attended the same ANCOC as he were promoted to SFC within 2 years;

	d.  when he left the service in 1994, his weighted score on his enlisted evaluation report (EER) was 124.5 out of a possible 125;

	e.  Soldiers who previously served under him in subordinate grades attained the rank of SFC;

	f.  in 1985, he learned a former 1SG whom he served under for 1 year, while a member of his SFC promotion selection board, degraded his character to the members; and

	g.  the 1SG's comments were discriminatory and caused him to remain a SSG for 15 years.
   
3.  The applicant provides:

* self-authored statement
* 10 DA Forms 2166-6 (EER)
* 11 award documents
* 23 letters or certificates of appreciation or commendation
* 21 training records

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 military record shows he enlisted in the Regular Army on 31 May 1974.  He was trained in and awarded military occupational specialty 16R (Vulcan Crewmember).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank of SSG on 28 July 1979 in item 18 (Appointments and Reductions).  Item 27 (Remarks) shows a copy of this document was sent to the U.S. Army Enlisted Records and Evaluation Center SFC/E-7 promotion board on 23 October 1992.

4.  His record is void of any information regarding his promotion consideration and/or non-selection.  His record is also void of any documents showing he was ever promoted beyond the rank of SSG/E-6.

5.  On 31 May 1994, the applicant was honorably retired in the rank of SSG/E-6 after completing 20 years of active military service.

6.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, 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 strength by grade at any given time.

7.  Paragraph 7-39b of Army Regulation 600-200 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.

8.  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 claims he should be reconsidered for promotion to SFC/E-7 because a former 1SG tainted his character before the promotion selection board.  However, there is no evidence of record and he fails to provide any supporting evidence to substantiate this claim.

2.  By regulation, promotion reconsideration is 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 are prohibited from recording or providing specific reasons for selection or non-selection for promotion.

3.  Even if it could be shown that his former 1SG degraded his character to the other promotion board members, that individual would have been on only one promotion board.  Any such remarks would have no impact on the other promotion boards that considered him but failed to select him for promotion.

4.  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.

5.  The applicant is advised that the specific reasons for his non-selection for promotion is not authorized to be recorded or provided by selection boards and is not available to this Board for review.  Promotions to E-7 are 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 objective best judgment of the selection board at the time that the applicant was not among the best qualified within his MOS based on the needs of the Army when he was considered for promotion.

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 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)                                         AR20100027630



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ABCMR Record of Proceedings (cont)                                         AR20100027630



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