IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120002576 


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, in effect:

	a.  adjustment of his date of rank (DOR) to master sergeant (MSG)/E-8 to 8 August 2002 with pay and allowances from 8 August 2002 to 31 March 2004;

	b.  adjustment of his DOR to sergeant major (SGM)/E-9 to 8 December 2004 with pay and allowances from 8 December 2004 to 31 May 2006;

	c.  removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period November 2002 through October 2003 from his official military personnel file (now known as the Army Military Human Resources Record (AMHRR));

	d.  issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 8 June 1991 to 31 May 2006; and

	e.  restoration of his rank to SGM.

2.  The applicant states:

	a.  Another Soldier (Sergeant First Class (SFC) J____ P. C____, Jr.) was erroneously promoted to MSG ahead of him in 2002.  He wants his DOR to MSG corrected to show 8 August 2002 and pay and allowances from 8 August 2002 to 31 March 2004 because these are the dates between SFC J____ P. C____'s effective date of promotion to MSG effective 8 August 2002 and the date he was ultimately promoted to MSG on 1 April 2004.  A decision paper, dated 5 September 2006, states he was erroneously passed over when another SFC was promoted to E-8 ahead of him with a DOR of 8 August 2002.  The error that occurred when he was not promoted in 2002 could have been caught in January 2004 by the Inspector General's office.  He was not offered a promotion to MSG and he did not decline the position in writing as required by regulation.

	b.  He wants his DOR to SGM corrected to show 8 December 2004 and pay and allowances from 8 December 2004 to 31 May 2006 because he would have been fully promotion eligible to SGM on this date based on 13 years of time in service and 18 months of time in grade.  As a result of not being promoted to MSG in August 2002, he was not considered for promotion to SGM in 2004 and 2005.  A decision paper, dated 5 September 2006, states that had he been promoted, his DOR would be August 2002 and he would have been on the 2004 promotion list for consideration to E-9 and subsequently promoted to E-9 at least a year ago.  This paper also states his DOR as an MSG was only adjusted to 1 April 2004, not 2003, or 2002, and he again is paying the price for a management error causing him not to be on the 2004, 2005, or 2006 promotion list.

	c.  With regard to the contested NCOER, he should not have been assigned to that organization during the rated period had the Human Resources Office promoted him when he was eligible for promotion and not promoted another Soldier ahead of him with a DOR of 8 August 2002.  He contends the NCOER was a personal attack on him by his reviewer.  She exerted undue command influence on this report when she forced the rater to change a rating of "excellence" to "success."  He does not believe his performance during this period merited the reviewer referring this report and the evidence presented clearly reflects he was eligible for promotion and should not have been a member of that organization during the entire rating period.  He went through a divorce and he was involved in a serious vehicle accident during this rating period.

	d.  He is missing a DD Form 214 for the period 8 June 1991 to 31 May 2006.  The Texas Army National Guard (TXARNG) Human Resource Office issued this DD Form 214, but he never received a copy of it nor was it ever received by the National Personnel Records Center, St. Louis, MO.  He suspects the missing DD Form 214 may be behind his being denied eligibility for Post-9/11 GI Bill benefits.  He served honorably on active duty for over 24 years.

	e.  He requests restoration of his grade to SGM based on the following:

* the errors which prevented him from being promoted to MSG on 8 August 2002
* not being eligible to compete for SGM in 2004, 2005, and 2006 through no fault of his own
* he completed the 2-year non-resident phase of the U.S. Army Sergeants Major Course (USASMC)
* he was never enrolled in or scheduled to attend the resident phase of the course

	f.  He was in an active duty status with the TXARNG from 25 September 1987 to 31 January 2009 when he retired.  In 2004, he found a memorandum from the TXARNG Active Guard Reserve (AGR) Program Manager for the TXARNG Inspector General concerning the promotion of an SFC to MSG and that this SFC was promoted ahead of others higher on the promotion list.  The 2002 promotion list attached to the memorandum shows the word "declined" next to his name.  He never declined promotion to MSG.  He was never offered a position nor did he decline a position to MSG in writing.  He believes the TXARNG Inspector General's Office bears some of the responsibility by failing to fully investigate the matter.

	g.  After discovering the error, he wrote to the Deputy Assistant Adjutant General of the Army explaining the error he discovered and requested the error be addressed.  In April 2005, he was promoted to MSG with an effective date and DOR of 1 April 2004.  He was given partial but not full redress which would have been a DOR of 8 August 2002 when the SFC was promoted ahead of him.

	h.  In June 2006, he was placed on mobilization augmentee orders because the State of Texas had promoted beyond their control grade authorizations for MSG/E-8's and SGM/E-9's.  In August 2006, he wrote to the Assistant Adjutant General to address the error which prevented him from being considered by the 2004 and 2005 promotion boards for SGM.  He was promoted to SGM with an effective date and DOR of 1 June 2006.  He was given partial but not full redress which would have been a DOR of 8 December 2004 when he was first eligible for promotion but was denied because he was erroneously passed over for MSG in August 2002.

3.  The applicant provides numerous enclosures outlined in the enclosure listing.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 25 October 1983.  On 15 August 1984, he was discharged from the DEP and enlisted in the Regular Army (RA) for 3 years on 16 August 1984.  He served 2 years and 10 months in the RA before being released from active duty on 15 June 1987.  On 16 June 1987, he enlisted in the TXARNG.

2.  On 25 September 1987, the applicant entered active duty in a Title 32 AGR status.  On 10 October 1990, he was released from active duty and issued DD Form 214.  On 11 October 1990, he was again ordered to active duty, this time in a Title 10 status in support of Operation Desert Shield.  On 7 June 1991, he was released from active duty and issued a DD Form 214.

3.  Orders 187-62, TXARNG, dated 20 September 1991, returned the applicant to active duty in his previous Title 32 AGR status which was interrupted by his Title 10 active duty tour.  He was promoted to SFC effective 1 June 1995.

4.  The applicant provided a portion of a page from a MSG/E-8 promotion list.  His name is on the list with a sequence number of 758.  The Soldier he claims was erroneously promoted ahead of him had a sequence number of 723.  The other Soldier had a DOR as an SFC/E-7 of 21 October 1994 compared to the applicant's DOR as an SFC/E-7 of 1 June 1995.

5.  The applicant provided a copy of his NCOER for the period November 2002 through October 2003.  He was rated by a first sergeant (1SG)/E-8 and senior rated by a captain (CPT)/O-3.

	a.  The rater rendered the following ratings:

* in Part IVa (Army Values) he marked "Yes" for all seven Army values and provided the following bullet comments:

* Stands behind principle; determined and loyal
* Presents himself as a true professional
* Fully supported equal opportunity

* in Part IVb (Values/NCO Responsibilities) he marked "Excellence (Exceeds Standard)" in four areas – Competence, Leadership, Training, and Responsibility and Accountability
* in Part IVb he marked "Success (Meets Standard)" in one area – Physical Fitness and Military Bearing
* he provided the following bullet comments –

* Knowledgeable NCO who demonstrates the ability to manage a number of critical tasks simultaneously
* Sought self-improvement through Correspondence courses
* Outstanding independent judgment, gave sound advice
* Always placed mission first, totally devoted to duty

* in Part Va (Overall Potential for Promotion) he rated the applicant "Among the Best"

	b.  The senior rater rendered the following ratings:

* in Part Vc (Overall Performance) he rated the applicant "Successful 1"
* in Part Vd (Overall Potential) he rated the applicant "Superior 1"
* in Part Ve (Bullet Comments) he stated –

* Outstanding NCO "that" is truly dedicated to the mission
* With his expertise in the personnel field he should be considered for selection as a personnel warrant officer
* Unlimited potential for positions of higher responsibility

	c.  The rater, senior rater, and the applicant all signed the NCOER on 2 November 2003.  It was forwarded to the reviewer, a major, who nonconcurred with the evaluation on 12 December 2003.  There is no record of the reviewer's comments.

6.  The aforementioned NCOER is not filed in the applicant's AMHRR found in the interactive Personnel Electronic Records Management System.  The NCOER that is filed in his AMHRR was signed by the rater, senior rater, and applicant on 15 April 2004 and by the reviewer on 18 April 2004.  In the official NCOER, he was rated as follows:

	a.  The rater rendered the following ratings:

* in Part IVa (Army Values) he marked "Yes" for all seven Army values and provided the following bullet comments –

* Stands behind principle; determined and loyal
* Presents himself as a true professional
* Fully supported equal opportunity

* in Part IVb he marked "Excellence (Exceeds Standard)" in two areas – Leadership and Training
* in Part IVb he marked "Success (Meets Standard)" in three areas – Competence, Physical Fitness and Military Bearing, and Responsibility and Accountability


* he provided the following bullet comments –

* Knowledgeable NCO who demonstrates the ability to manage a number of critical tasks simultaneously
* Sought self-improvement through Correspondence courses
* Outstanding independent judgment, gives sound advice
* Always placed mission first, totally devoted to duty

* in Part Va (Overall Potential for Promotion), he rated the applicant "Among the Best"

	b.  The senior rater gave the applicant essentially the same ratings as before:

* in Part Vc (Overall Performance), he rated the applicant "Successful 1"
* in Part Vd (Overall Potential) he rated the applicant "Superior 1"
* in Part Ve (Bullet Comments) he slightly modified his comments stating:

* Outstanding NCO "that" is truly dedicated to the mission
* Unlimited potential for positions of higher responsibility
* Consider for selection as a personnel warrant officer

	c.  The reviewer provided written comments for her nonconcurrence.  On 17 April 2004, she stated:

…he did not display the traits that would support the remarks, performance rating, and potential rating by the senior rater CPT W____.

Specifically, I do not concur that [Applicant] should be considered for selection as a personnel warrant officer.  I've observed during the past year, a lack of aggressiveness to follow up on issues that affect the unit's readiness, namely delinquent physicals paperwork processing, discharge packets, ING packet processing, AWOL letters, and reduction orders processing.

The unit's key readiness indicators (KRIs) displayed a downward trend this past year as a direct result of [Applicant's] delay in processing personnel actions.  Additionally, [Applicant] was in his duty position for over three years, and never became MOS qualified.  Therefore, I disagree with marking as a '1 block' in overall performance.

[Applicant] has the knowledge to serve in positions of greater responsibility, but seems to lack a key quality needed to handle that responsibility, namely, initiative.  Therefore I do not concur that a marking in the '1 block' is the appropriate rating.

7.  There is no evidence that shows the applicant appealed the now contested NCOER.

8.  The available records do not contain a declination of consideration for promotion to MSG.

9.  He was promoted to MSG effective 1 April 2004 with a DOR of 1 April 2004.

10.  He was promoted to SGM effective 1 June 2006 with DOR of 1 June 2006.  These orders state, "This soldier must complete the USASMC as a condition of this promotion.  Failure to meet the condition will cause reduction [Army Regulation] 600-8-19, [paragraph] 10-18e."

11.  A DA Form 1059 (Service School Academic Evaluation Report), dated 15 January 2009, shows he was dismissed from the USASMC due to his failure to attend phase II of the non-resident course.  This form also states he completed the first phase of the course.

12.  On 28 January 2009, he was administratively reduced from SGM to MSG with a DOR of 1 April 2004 for failure to complete a mandatory training requirement.

13.  On 31 January 2009, he was released from active duty and placed on the Retired List in the rank of MSG/E-8 effective 1 February 2009.  This DD Form 214 shows he entered active duty on 1 June 2006.

14.  His records do not contain a DD Form 214 covering the period 8 June 1991 to 31 May 2006.

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the AMHRR, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 provides that an NCOER will be filed permanently in the performance section of the AMHRR.

16.  Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

17.  Paragraph 3-10 of Army Regulation 623-3 provides that the reviewer of NCOER's has the overarching role of validating the accuracy of NCOER's and instilling fairness within the evaluation process.

	a.  The reviewer will ensure that evaluations are rendered by the proper rater and senior rater (in accordance with the established rating scheme) and they are clear, consistent, and just, based on known facts.

		(1)  When the reviewer determines that the rater and/or senior rater have not evaluated the rated NCO in an appropriate manner based on known facts, the reviewer's first responsibility is to consult with one or both rating officials to determine the basis for the apparent discrepancy.

		(2)  The reviewer may not direct the rater and/or senior rater to change an evaluation believed to be an honest assessment.

	b.  The reviewer will indicate concurrence or nonconcurrence with the rater and/or senior rater by annotating the appropriate box with an "X" in part II.

		(1)  If the rater and/or senior rater acknowledge a discrepancy and revise the NCOER so the reviewer agrees with the evaluation, the reviewer will check the "Concur" box in part II.

		(2)  If the rater and/or senior rater fail(s) to acknowledge a discrepancy and indicate(s) that the evaluations reflect honest opinions, the reviewer checks the "Nonconcur" box in part II.  The reviewer will provide a nonconcurrence memorandum as an enclosure to the NCOER to clarify the situation and render his or her opinion regarding the rated NCO's performance and potential evaluations.

18.  Paragraph 6-9 of Army Regulation 623-3 states an appeal may be approved, in whole or in part, or may be denied depending upon the merits of the case.

19.  Army Regulation 635-5 (Separation Documents) states a DD Form 214 will be prepared for all personnel after completing 90 days or more of continuous active duty for training, full-time training duty, or active duty for support, and after completing initial active duty for training which resulted in the award of a military occupational specialty, even though the active duty was less than 90 days.  The regulation also states a DD Form 214 will not be prepared to cover a period of service for which a previous DD Form 214 has been issued.  It further directs that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers.  If no DD Form 214 is available, issue a statement of service.

20.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures for promotion and reduction of Army enlisted personnel.  The regulation states that a Soldier must be a graduate of the USASMC for promotion to SGM.  Soldiers who have been disenrolled from the USASMC for any reason (other than compassionate or medical) are permanently ineligible for promotion consideration to SGM.

21.  Army Regulation 600-8-19 further states that Soldiers selected for promotion to SGM who are nongraduates of the USASMC will be conditionally promoted.  Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list.  The effective date of administrative reduction is the date of the action that caused the Soldier to be ineligible to retain the promotion.  Paragraph 7-39 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his DOR to MSG adjusted to 8 August 2002 with pay and allowances from 8 August 2002 to 31 March 2004 because another Soldier was erroneously promoted to MSG ahead of him in 2002.  However, the evidence shows SFC J____ P. C____, Jr. was senior to the applicant and had a lower promotion sequence number.  SFC J____ P. C____, Jr.'s promotion should have occurred before the applicant's promotion.

2.  As for the applicant's DOR as a MSG/E-8, the TXARNG did adjust his promotion date to 1 April 2004.  He has not shown that adjustment was incorrect.

3.  The applicant wants his DOR to SGM adjusted to 8 December 2004 with pay and allowances from 8 December 2004 to 31 May 2006 because he would have been fully promotion eligible to SGM on this date based on 13 years of time in service and 18 months of time in grade.  This issue is moot because the applicant has not shown he should have been promoted to MSG/E-8 any earlier than his adjusted DOR of 1 April 2004.

4.  His contentions pertaining to the contested NCOER were carefully considered.  However, there is no evidence he appealed the contested NCOER through the redress system and he did not explain why he did not use the NCOER appeals process within the given time frame.

5.  The applicant's basic contention concerning the NCOER is that he shouldn't have been in the unit if he had been promoted in August 2002.  He doesn't argue the reviewer is wrong, only that he shouldn't have been there, thus the reviewer couldn't have reviewed him.  The applicant was in the unit under the proper rating chain and the reviewer properly brought her impressions of the applicant's performance to the attention of the rater and senior rater.  The rater made some changes, but the senior rater didn't, so the reviewer still nonconcurred and provided her comments.  Those comments appear to represent a fair and impartial evaluation of the applicant's performance and potential during the rating period.

6.  The governing regulation states NCOER's will be filed in the performance section of the AMHRR.  The NCOER in question is properly filed in the applicant's military records in accordance with the governing regulation.  Therefore, there is insufficient evidence to remove the NCOER in question from the applicant's AMHRR.

7.  He contends a DD Form 214 covering the period 8 June 1991 to 31 May 2006 was issued but he never received a copy of it.  Although there is no DD Form 214 for this period on file in his AMHRR, administrative regularity is presumed.  In accordance with the governing regulation, reissuance of the DD Form 214 is not authorized.  Therefore, there is insufficient evidence with which to grant his request for a DD Form 214 for the period 8 June 1991 to 31 May 2006.

8.  His request to restore his rank to SGM was noted.  However, his promotion to SGM was contingent upon his completion of the USASMC.  His promotion effective date was 1 June 2006.  He was dismissed from the USASMC due to his failure to attend phase II of the non-resident course and he was separated for retirement effective 31 January 2009.  Therefore, he did not fulfill his conditional promotion obligation to retain the rank of SGM and orders show he was reduced to MSG on 28 January 2009.


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)                                         AR20120002576



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