IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130001152 


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 correction of his records to show he was promoted to the rank/grade of master sergeant (MSG)/E-8 with an appropriate date of rank (DOR).

2.  The applicant states:

	a.  He was erroneously removed from the fiscal year 2010 (FY10) MSG Selection List.  He had been selected for promotion and given the sequence number 86; promotions were conducted through sequence number 99 from that list and he should have been promoted to MSG.  This case was originally filed with the Army Board for Correction of Military Records (ABCMR) in December 2010.  The Board subsequently delayed action on his original request pending the U.S. Army Human Resources Command's (HRC) decision to refer him to an enlisted standby advisory board (STAB).

	b.  On 13 January (i.e., July) 2011, HRC removed him from the FY10 MSG Selection List after a review by the STAB.  He was removed from the promotion list without proper authority or justification.  He was not promoted despite the fact that no evidence exists for the removal of his name from the list.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* five memoranda, dated between 5 August 2010 and 13 July 2011
* five letters, dated between 1 January 2011 and 1 November 2012
* five pages of email
* his Enlisted Record Brief, dated 18 January 2010
* one page of Army Regulation 600-8-19 (Enlisted Promotions and Reductions)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 August 1992 and he held military occupational specialties 18B (Special Forces (SF) Weapons Sergeant) and 11B (Infantryman).  He was assigned to the 3rd Battalion, 5th SF Group, Fort Campbell, KY. 

2.  On 5 August 2010, by memorandum, he was notified by HRC that he had been considered and selected for promotion [by the FY10 MSG Selection Board].  However, based on his conviction by court-martial, his name had been administratively removed from the Promotion List.

3.  In December 2010, he applied to the ABCMR for reinstatement to the MSG Selection List.  

4.  On 11 February 2011, by memorandum, HRC notified the ABCMR that a review of the applicant's records revealed:

	a.  HRC's decision to remove him from the promotion list was a result of his records reflecting a staff sergeant (SSG) DOR of 2 December 2009.  This action was later reversed by his local command after the convening authority for his (the applicant's) summary court-martial explained his reduction to SSG was part of the approved sentence that should have been suspended for a period of 3 months and later remitted.  Later records revealed he had been reinstated as a sergeant first class (SFC) on or about 9 August 2010, but HRC was not notified of this until the inquiry by the ABCMR.

	b.  His name was reinstated onto the MSG Selection List and, in accordance with Army Regulation 600-8-19, the applicant was being referred to a STAB that would be held on or about 7 June 2011. 

5.  The applicant provides an email, dated 25 February 2011, wherein he was notified by HRC that his name was placed back on the selection list and a STAB would determine whether to retain him or remove him from the promotion list in light of the summary court-martial that was filed in his performance section of his Army Military Human Resource Record (AMHRR).  If the STAB elected to retain him on the list and his sequence number was already past, his DOR would be back-dated to when he should have been promoted.  If the STAB elected to remove him, he would remain eligible for all future considerations.  The summary court-martial referred to is not available for review with this case.

6.  On 20 April 2011, the ABCMR closed his application without action as his records were going to be considered by a STAB to determine if he should have been removed from the selection list or promoted.

7.  On 13 July 2011, by memorandum, he was notified by HRC that the STAB convened on 7 June 2011 and had recommended, and the Director of Military Personnel Management approved, that his name be removed from the FY10 MSG Selection List.  Selection boards were not permitted to divulge their reasons for selection/nonselection, each Soldier's AMHRR was evaluated, and the scope of the deliberation was not limited to one specification.  He was further notified that he would be eligible to compete in subsequent boards provided he was otherwise qualified for promotion.

8.  On 18 October 2011, the applicant submitted a voluntary request for retirement with a requested retirement date of 31 August 2012.  His request was subsequently approved.

9.  He was honorably retired from active duty on 31 August 2012 in the rank of SFC and he was placed on the Retired List on 1 September 2012.  He completed 20 years and 20 days of creditable active service.  

10.  Army Regulation 600-8-19, paragraph 4-14 (Rules for processing STAB consideration) states, in part, STABs are convened to consider records of those Soldiers not reviewed by a regular board; whose records were not properly constituted, due to a material error, when reviewed by the regular board; and of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal.  The STAB's recommendation will be submitted to the promotion authority for a final decision.  Paragraph 4-15 (Rules for administrative removals) states, in part, HRC will delete, without further board action, the name of any Soldier from the recommended list who is reduced.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's name was removed from the FY10 MSG Selection List by HRC when it was found a summary court-martial was filed in his AMHRR and his rank was reflected as SSG with a DOR of 9 December 2009.  

2.  In accordance with governing regulations, when HRC was notified a material error existed, as he had been erroneously reduced, the error was corrected and his name was placed back on the selection list.  However, as the applicant had received a summary court-martial, he was properly reconsidered for promotion to MSG by a STAB to consider whether he should be promoted or removed from the promotion list.  The STAB recommended his name be removed from the selection list and the recommendation was approved by the promotion authority.

3.  The evidence of record does not show and the applicant has not provided any evidence that shows he was improperly removed from the selection list based on the results of the STAB.  Therefore, there is an insufficient evidentiary 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)                                         AR20130001152





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ABCMR Record of Proceedings (cont)                                         AR20130001152



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