IN THE CASE OF:	  

		BOARD DATE:	  8 January 2012

		DOCKET NUMBER:  AR20120011219 


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:

The applicant defers his request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:  

* the applicant's records be submitted to an Army Standby Advisory Board (STAB) for consideration for promotion to sergeant first class (SFC)/E-7
* if the applicant is selected, he be promoted to SFC/E-7 with the date of rank (DOR) he would have received had he been selected by the Fiscal Year 2011 (FY11) Senior Enlisted Promotion Board
* the applicant be paid back pay and allowances from the date he would have been promoted had he been selected by the FY11 Senior Enlisted Promotion Board
* any other relief the Board finds appropriate

2.  Counsel states:

	a.  The applicant is a decorated staff sergeant (SSG) who has successfully completed Phase I of the Basic Noncommissioned Officer Course (BNCOC) and exceeded course standards.  He received outstanding NCO Evaluation Reports (NCOER) with strong recommendations for promotion.  On 19 September 2009, he was assigned to the 10th Psychological Operations Battalion for deployment to Afghanistan.   He continued his service with the 14th Psychological Operations Battalion.  He again received excellent NCOERs with outstanding bullets by his raters and senior rater.  

	b.  On 18 January 2011, Headquarters, U.S. Army Reserve Command (USARC) formulated a memorandum concerning the USAR NCO Education System (NCOES) waivers for promotion.  The memorandum provides that Soldiers who are deployed may submit an NCOES waiver for promotion consideration.  As such, on 31 May 2011, the applicant submitted a request for a waiver which was approved on 2 June 2011 by the USARC G-1.  However, despite the requirement to include the approved waiver in the applicant's promotion file, the USARC G-1 failed to do so and routed the approved waiver to the wrong command/headquarters.  The automated system deemed the applicant ineligible for promotion consideration by the FY11 board. 

	c.  The applicant submitted a request for a STAB on 22 November 2011 and contended that he met the criteria for the STAB.  He believed the incorrect routing of his NCOER waiver directly contributed to his promotion packet not being considered.  His battalion commander provided a strong, favorable recommendation.  However, on 17 January 2012, Headquarters, 63rd Regional Support Command (RSC) denied his request for a STAB.  The denial memorandum stated that his request was disapproved because the USAR electronic record showed he was ineligible for consideration on 1 August 2011.  

	d.  The denial was inaccurate because the applicant had timely requested and received a waiver for NCOES.  The error was committed by the USARC G-1 in misrouting the approved waiver.  The applicant and his battalion commander made it clear that the error was not anything the applicant could control. 

3.  Counsel provides:

* Enlisted Record Brief
* DA Form 1059 (Service School Academic Evaluation Report)
* NCOER for the rating period 20080801 – 20090731, 20090801 – 20100617, and 20100701 - 20110315
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 18 August 2010
* Memorandum, dated 16 June 2008, Subject: Army Reserve NCOES Waivers for Consideration to SSG through Master Sergeant (MSG)
* DA Form 4187 (waiver approval)
* Request for STAB and commander's endorsement
* Denial of STAB
* SFC-Sergeant Major Promotion Board After Action Review, 63rd RSC, August 2011
CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 30 June 2004 and he held military occupational specialties (MOS) 11B (Infantryman), 68E (Dental Specialist), and 11H (Heavy Anti-Armor Weapons Specialist).  

2.  He was honorably discharged on 20 October 2007 in the rank/grade of SGT/E-5.  Prior to his discharge, he enlisted in the USAR for 3 years on 14 October 2007.  He was assigned to Headquarters and Headquarters Company, 14th Psychological Operations Battalion, Moffett Field, CA.

3.  Between 3 and 17 January 2009, he attended the Warrior Leader Course (WLC) and marginally achieved course standards.  Additionally, between 30 January and 10 February 2009, he attended and successfully completed Phase I of TATS (the Army Training System) SACC (Stand Alone Common Core) BNCOC at the U.S. Army NCO Academy, Fort Lewis, WA.  

4.  In late 2008 and early 2009, the Army changed the name "BNCOC" to the Advanced Leader Course (ALC).  ALC is typically attended by NCOs in the ranks of SGT and SSG.  ALC-CC (DL) is an 80.4 hour, 90-day web-based course that replaced the BNCOC-CC taught in resident, video tele-training (VTT), and mobile training team (MTT) formats.  The Reserve Components (RC) provides the ALC-CC in a resident Active Duty Training (ADT) 12-day course.  USARC schedules their Soldiers according to their specific requirements.

5.  He was promoted to SSG/E-6 on 1 April 2009 in MOS 37F (Psychological Operations Specialist).

6.  He entered active duty on 19 September 2009 and subsequently served in Afghanistan with Task Force Viper/Detachment 16, HHC, 7th Psychological Group, from 25 September 2009 to 10 June 2010.  He was honorably released from active duty on 18 August 2010 to the control of the 7th Psychological Operations Group, Moffett Field, CA.

7.  On 1 July 2010, he was reassigned to HHC, 14th Psychological Operations Battalion, Moffett Field, CA.

8.  His request for an ALC waiver is not available for review with this case.  However, it appears he requested a waiver by way of a DA Form 4187 (Personnel Actions) for attending Phase II of MOS 37F ALC through his chain of command.  

9.  On 2 June 2011, the USARC G-1 approved his request and stated "Request for ALC is approved.  This waiver will expire 12 months from the date approved.  If promoted conditionally, Soldier must complete all phases of ALC within 24 months of redeployment from theater."  Additionally, item 10 (Forwarded To) of the DA Form 4187 contains the entry "HQ (Headquarters), USASOC (U.S. Army Special Operations Command)."

10.  On 22 November 2011, by memorandum to the U.S. Army Human Resources Command, the applicant requested to be reconsidered for promotion to SFC under the FY11 SFC board.  He contended that he submitted a request for NCOES waiver on 31 May 2011 and it was approved on 2 June 2011.  He did not receive the waiver until 19 July 2011 and it was routed to the wrong command.

11.  On 22 November 2011, the applicant's battalion commander strongly recommended approval.  

12.  On 17 January 2012, an official at Headquarters, 63rd RSC denied his request.  The official stated that:

	a. The applicant's request for STAB was denied because his electronic Army Reserve record showed he was ineligible for promotion consideration on 1 August 2011.  

	b.  Beginning with the August 2011 senior enlisted promotion board, the Army Reserve adopted an electronic method of determining Soldier promotion eligibility using Soldier information in electronic personnel, training, and security systems, specifically TAPDB-R (Total Army Personnel Database – Reserve), RLAS (Regional Level Application Software), ATRRS (Army Training Requirements and Resources System), and JPAS (Joint Personnel Adjudication System). 

	c.  The applicant's electronic records showed he had not completed all phases of ALC and he had not been granted a USARC waiver.  This made him ineligible for promotion board consideration per Department of the Army Pamphlet 600-8-21 (unknown regulation), paragraph 5-31p (unknown paragraph).  [It is possible the author intended to cite Army Regulation 600-8-19, paragraph 5-31a].

13.  An advisory opinion was obtained on 12 September 2012 in the processing of this case.  An official of Headquarters, USARC, Fort Brag, NC recommended disapproval and stated:

	a.  Soldiers must be graduates of the prescribed level of NCOES to be eligible for promotion to the next grade.  For promotion to SFC/E-7, Soldiers must be ALC graduates.  From 16 January 2008 and 30 September 2011, Soldiers who could not attend NCOES due to operational obligations or deployment were eligible to request a waiver.  The applicant received an approved waiver effective 2 June 2011.  Waivers were valid for 12 months as of the approved date of the waiver. As of 1 October 2011, ALC waivers are no longer authorized.  

	b.  During this time, the Army Reserve began conducting automated senior enlisted promotion board using the Soldier's official military personnel file, now known as the Army Military Human Resource Record (AMHRR) located on the integrated Personnel Electronic Records maintenance System (iPERMS).  

	c.  It is the Soldier's responsibility to review and update iPERMS board files by the published suspense date.  In the applicant's case it was 1 July 2011.  Soldiers are encouraged to provide all non-AMHRR documents and/or write a letter to the President of the Board if there is any information which they deem important in their board record consideration.  The applicant expressed concern that his ALC waiver was not presented to the board; however, he was not only ineligible due to a lack of NCOES but also his records reflected his last Army Physical Fitness Test (APFT) was February 2009.  Soldiers are required to have a passing record APFT within 12 months of the promotion board to be considered for promotion.  Currently, the applicant's failure to complete his ALC and provide an updated APFT caused him to remain ineligible for promotion consideration by the August 2012 promotion board.  

	d.  In order to be eligible for the September 2012 promotion board, the applicant must complete the remaining phases of ALC and consult with his record custodian to update his record APFT.  

14.  On 14 September 2012, the applicant was provided with a copy of the advisory opinion for an opportunity to submit a rebuttal.  However, he failed to respond within 30 days of the date he was notified. 

15.  His records contain a DA Form 705 (Army Physical Fitness Test Scorecard), dated 9 April 2011 that shows he passed the APFT on that date.

16.  Headquarters, USARC memorandum, dated 16 January 2008, Subject:  Army Reserve NCOES Waivers for Consideration to SSG through master sergeant (MSG) provided guidance regarding NCOES waivers.  It stated effective immediately the approval authority given to Army troop program units convening authorities to approve BNCOC waivers was rescinded.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) the approval authority is the USARC G-1, the 7th Army Reserve Command, and the 9th RRC for Soldiers assigned to their command.  Soldiers who could not attend NCOES due to operational obligation, non-availability of NCOES courses in ATRRS, or deployment may submit a waiver request.  The request is submitted on a DA Form 4187.  The unit commander is responsible for verification of Soldier's eligibility.  Unit commanders will provide a courtesy copy of the NCOES waiver request through their respective chain of command.  A copy of the approved waiver will be included in the Soldier's promotion packet when submitted to the promotion board.  

17.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  Chapter 5, section III prescribes policy for the promotion of USAR Soldiers assigned to TPUs, Army Reserve Elements, and multi-component units.  The selection and promotion process for senior enlisted grades SFC through sergeant major (SGM) is centralized at promotion authority headquarters.  All SSGs through MSGs/First Sergeants (1SGs) who meet the basic eligibility requirements will be considered for promotion.  The promotion selection board will select the best qualified Soldiers for placement on the permanent recommended promotion list.  Soldiers will be promoted sequentially from the list to fill vacancies in accordance with certain criteria.  Promotions off the permanent recommended promotion list will not exceed the cumulative vacancies for that pay grade as computed.  All Soldiers within the announced zone and assigned to a unit will be considered by the promotion selection board.  

	a.  Paragraph 5-31 (announcement by the promotion authority) states the convening authority will determine the board schedule and announce the following information to all subordinate commands: (1) The convening date of the senior enlisted promotion selection board; (2) The zones of consideration for promotion selection, which will include required grades; and (3) administrative instructions and schedules.

	b.  Paragraph 5-32 (eligibility criteria for selection board consideration) states commanders will ensure that Soldiers who meet eligibility criteria are considered by the board.  Soldiers must meet the eligibility criteria as of the convene date of the board.  A Soldier must be a graduate of the NCOES Course (or the equivalency required for his or her current grade) as required by paragraph 1–27, of this regulation, (waivable; see paragraph 1–27c, of this regulation).  A passing score on the APFT within 12 months of the date of the board is mandatory for promotion consideration and is non-waivable.  

	c.  Paragraph 5-43 (Enlisted Standby Advisory Board) states the composition of an enlisted STAB is under identical criteria as that of enlisted selection boards The board will consider records (1) not reviewed by a regular board; (2) that were not properly constituted because of a material error when reviewed by a regular board; (3) of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal from a selection list.  The names of Soldiers selected by this board will be integrated on to the PPRL. They will be promoted along with their peers when their sequence number is reached and a vacancy occurs.  The convening authority will determine if a material error existed in a Soldier’s records when the file was reviewed by the selection board. It must be presumed that a material error in the file may have contributed to non-selection.  An error is material when, in the judgment of a mature individual familiar with selection board proceedings, a reasonable chance exists that had the error not existed, the Soldier may have been selected.  Sometimes, a long-standing error once corrected qualifies the member for reconsideration based on the criteria of several boards.  Within 1 year of the board results release date, Soldiers not recommended for promotion may request reconsideration, if they believe their record contained a material error when it was considered.  The request must be, in writing, and must clearly and fully state the reason for the request. Appropriate supporting documentation must accompany the request.  Failure or inability of a Soldier to submit documents before the cutoff date established in the board announcement for submission of documents cannot be used as a basis to request reconsideration.  However, the absence of a document from a Soldier’s board file may constitute a material error, provided the document should have been in the board file.  Also, the document must have been missing because of administrative error or omission for which the Soldier concerned is not responsible. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SSG on 1 April 2009.  He completed Phase I of the ALC on 20 February 2009.  He was mobilized 7 months later on 19 September 2009 and deployed from 25 September 2009 to 10 June 2010.  He was unable to take the APFT during the period of deployment due to combat/contingency operations.  He was demobilized and released from active duty on 18 August 2010.  He passed the APFT on 9 April 2011.

2.  Nearly 9 months later, he submitted a request for NCOES waiver presumably related to Phase II of ALC.  He did so on 31 May 2011 and his request was approved on 2 June 2011.  For unknown reasons, the USAR G-1 never included a copy of the approved waiver in the applicant's promotion packet and routed the approved waiver to the wrong chain of command.  As a result, the applicant was 

deemed ineligible for promotion consideration by the FY11 (August 2011) senior enlisted promotion board. 

3.  He requested a waiver in which he clearly demonstrated that a material error occurred and his commander strongly recommended approval.  Yet, his higher headquarters not only denied his request but also alleged that he had neither completed all phases of ALC nor was he granted a waiver by the USARC G-1.  The author further advised him that he was ineligible for promotion board consideration and cited an unknown regulation (Army Regulation 600-8-21, paragraph 5-31p). 

4.  The advisory official states from 16 January 2008 and 30 September 2011, Soldiers who could not attend NCOES due to operational obligations or deployment were eligible to request a waiver.  The applicant received an approved waiver effective 2 June 2011.  The waiver was valid for 12 months as of the approved date.  As of 1 October 2011, ALC waivers are no longer authorized.  The advisory official also adds that the applicant lacked an APFT score in his official records/promotion file.  His records contain a D Form 705 showing he passed the AFPT in April 2011.

5.  Although the responsibility for reviewing one's promotion file resides solely with the applicant and although he failed to explain why he did not simply send a letter to the promotion board president explaining the absence of the NCOES waiver from his promotion file, it is clear that various administrative errors committed by various echelons of the USAR denied the applicant an opportunity to be considered for promotion to SFC by the FY11 promotion board.  He should not be penalized for errors committed by others.  The absence of the approved waiver from his promotion file is a material error.  Had the error not existed, the Soldier would have met the eligibility for promotion consideration.  

6.  Therefore, notwithstanding the advisory opinion, in the interest of equity and justice, the applicant's records should be corrected to show he met the criteria for promotion consideration by the FY11 board.  As such, his records should be submitted before a STAB for consideration for promotion to SFC/E-7.  

7.  He is not entitled to a STAB by the FY12 board since his waiver expired one year after the approval date and he remained ineligible due to non-completion of required NCOES.  


BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his corrected record with the approved NCOES waiver to a duly constituted Standby Advisory Board for promotion consideration to sergeant first class under the criteria followed by the FY11 promotion selection board(s) that did not consider his record for promotion to SFC.

2.  If he is selected for promotion by the Standby Advisory Board and he is otherwise qualified, his record should be corrected by establishing his sergeant first class promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the Standby Advisory Board, and by providing him all back pay and allowances due as a result.  If he is not selected for promotion by the Standby Advisory Board, he should be so notified by the appropriate U.S. Army Human Resources Command promotion officials.  



      _______ _   _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)                                         AR20120011219





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ABCMR Record of Proceedings (cont)                                         AR20120011219



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