IN THE CASE OF:	  

		BOARD DATE:  20 February 2014

		DOCKET NUMBER:  AR20130008880 


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 promotion to master sergeant (MSG)/E-8. 

2.  The applicant states:

* he was fully qualified to be considered for promotion by the Fiscal Year (FY) 2008 MSG Promotion Selection Board; however, he was not considered for promotion to MSG because he was under an erroneous flagging action
* he was approved for consideration by the next Department of the Army (DA) Enlisted Standby Advisory Board (STAB), which convened              29 January 2008
* he strongly believes the STAB selected him for promotion; however, since the erroneous flag was not removed from his records, he was removed from the promotion recommended list
* while updating his Enlisted Record Brief (ERB), he discovered he had been erroneously flagged
* he inquired about the erroneous flagging action and was informed that he had been flagged for failing to meet Army weight control standards
* his first sergeant (1SG) confirmed he was unintentionally flagged and assured him the flag would be immediately removed
* he attempted to submit his most recent DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) to show the board he was not overweight; however, by the time the report was completed, the board had already convened
* he was not considered by the FY08 MSG Promotion Selection Board
* he was approved to be considered for promotion by a STAB, based on the FY08 Promotion Selection Board criteria, which convened on 29 January 2008
* he contacted the DA Senior Enlisted Promotion Branch Noncommissioned Officer in Charge (NCOIC), at the U.S. Army Human Resources Command (HRC), to inquire about the results of the STAB
* he was informed that he had been selected for promotion to MSG
* after reporting for duty at Fort Sam Houston, TX, he discovered a memorandum in his Army Military Human Resource Record (AMHRR) [referred to by the applicant as his Official Military Personnel File (OMPF)], which notified his chain of command of his non-selection by the STAB
* the notification memorandum incorrectly states he was considered by the FY08 MSG Promotion Selection Board – he contends he was not
* he believes he would have been selected by the FY08 MSG Promotion Selection Board if the erroneous flag had not existed at the time the board convened
* he also believes that when the DA Senior Enlisted Promotions Branch NCOIC congratulated him and informed him that he had been selected by the STAB for promotion to MSG, he had been selected, but his name was removed from the promotion list when his erroneous flag was not removed

3.  The applicant provides:

* his NCOER covering the period 12 April 2007 through 26 October 2007
* a memorandum from the Chief, Enlisted Promotions Branch, HRC, dated 14 March 2008

CONSIDERATION OF EVIDENCE:

1.  On 21 March 1994, following active service in the U.S. Navy, the applicant enlisted in the Regular Army.  He served in a variety of assignments of increased responsibility and, on 1 September 2004, he attained the rank/grade of sergeant first class (SFC)/E-7.  His records show he held military occupational specialty (MOS) 68W (Health Care Specialist).  

2.  On or about 2 October 2007, the FY08 MSG Promotion Selection Board convened at the DA Secretariat for Senior Enlisted Boards, Indianapolis, IN, to consider eligible Soldiers for promotion to MSG.  According to Military Personnel (MILPER) Message Number 07-155 (FY08 MSG Promotion Board), the following Soldiers were determined to be ineligible for promotion consideration:

* Soldiers with an approved retirement, regardless of the approval date and reason for submission
* Soldiers with an approved DA-directed Denial of Continued Active Duty Service
* Soldiers with an approved local bar to reenlistment
* Soldiers who signed a Declination of Continued Service Statement (DCSS)
* special bandspersons
* Soldiers who do not possess a high school diploma/general educational development (GED) equivalency or higher
* Soldiers who are ineligible to reenlist due to court-martial conviction, confinement, or absent without leave (AWOL)

3.  According to a memorandum signed by Sergeant Major (SGM) TSG, the Chief of the Enlisted Promotions Branch at HRC on 14 March 2008, the applicant was reconsidered for promotion by the DA Enlisted STAB that convened on         29 January 2008; however, he was not recommended for promotion under the criteria of the FY08 MSG Promotion Selection Board.  

4.  On 5 November 2012, he was honorably retired from the Army, in the rank/grade of SFC/E-7, by reason of permanent physical disability.

5.  His record is void of any documentation that shows he was selected for promotion to MSG at any point of time during his period of military service.  His record is further void of any documentation related to any flagging actions he may have been affected by at the time the FY08 MSG Promotion Selection Board convened.

6.  He provides his NCOER for the period 12 April 2007 through 26 October 2007, which shows he met the Army's height and weight standards during the reporting period.  The applicant signed the NCOER on 31 October 2007.

7.  On 10 June 2013, in the processing of this case, an advisory opinion was obtained from the Chief of the DA Promotions Branch at HRC.  This official provided the following input:

* available records showed SFC [Applicant] was consider by the FY08 MSG Promotion Selection Board; however, he was not recommended for promotion
* SFC [Applicant] requested, and was granted, reconsideration by a STAB under the criteria established by the FY08 MSG Promotion Selection Board, due to the absence of his Bachelor's Degree in his board file
* SFC [Applicant] was not selected for promotion by the STAB

As an attachment to the provided advisory opinion, the previously discussed memorandum of 14 March 2008 was provided.

8.  On 19 June 2013, the applicant was provided with a copy of the advisory opinion for possible comment and/or rebuttal; however, he did not respond.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's enlisted promotion policy.  Chapter 4 contains guidance on the centralized promotion process for promotion to MSG.  It states, in part, that Soldiers will be selected for promotion to MSG by a centralized DA Promotion Selection Board, based on the best qualified as determined through the collective best judgment of the promotion board members.  Chapter 4 also provides guidance on the processing of STAB requests.  It states, in part, that STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board, or whose records were not properly constituted, due to material error, when reviewed by the regular board. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to MSG because he was not considered initially through no fault of his own and, despite being selected for promotion by the STAB, he was further denied promotion because his chain of command did not remove an erroneous flag.  The evidence of record does not support his contention.

2.  The evidence of record shows he was considered by the FY08 MSG Promotion Selection Board; however, he was not selected for promotion.  Due to the existence of a material error in his board consideration file, he was granted reconsideration for promotion by a STAB that convened on 29 January 2008; however, the STAB did not select him for promotion.

3.  Promotion boards are convened to select the best qualified Soldiers for promotion, as determined through the collective best judgment of the promotion board members.  While each board considers all eligible NCOs for promotion, it may only select a number within established selection constraints.  The selection process is an extremely competitive process based on the "whole Soldier" concept.  It is an unavoidable fact that some NCOs considered for promotion will not be selected.  There are always more outstanding NCOs who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

4.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any NCO, specific reasons for the promotion board's recommendations are not known.  A non-selected NCO can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

5.  The Army promotion system is based on performance, merit, and potential, not time in service and not on speculations.  It is unfortunate that he was not selected for promotion to MSG; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  

6.  The applicant was considered for promotion and was not selected.  He was later reconsidered under the same guidelines; however, the STAB did not select him for promotion.  Simply put, he was not selected for promotion.  He is not entitled to further promotion consideration.  

7.  In view of the foregoing, there is an insufficient basis to grant the 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)                                         AR20130009718



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ABCMR Record of Proceedings (cont)                                         AR20130008880



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