IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140000250 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) (the Board) on a remand from the U.S. District Court for the District of Columbia.  The court directs the ABCMR to reconsider the applicant's request for a review of the matters raised in his reconsideration request from 2011 in order to determine:

* whether the record corrections the Board directed in 2008 have been fully completed and reflected in his records
* whether the directed records corrections were complete when the standby advisory board (STAB) reviewed his records in January 2011

2.  The applicant filed, through counsel, a civil lawsuit with the U.S. District Court for the District of Columbia wherein counsel requested the Board reconsider the applicant's 2011 request that the ABCMR reconsider its decision from 20 November 2008 (ABCMR Docket Number 20070018306).  The applicant's request for reconsideration (ABCMR Docket Number AR20110021991) was returned on 22 May 2012 for being untimely.  The Court granted an unopposed motion for a voluntary remand to the ABCMR and motion for stay of proceedings. The ABCMR has stated it will reconsider his application. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for promotion to sergeant first class (SFC) with a date of rank comparable to his peers on 1 October 2005 and the removal from his records of a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the rating period July 2002 through June 2004. 

2.  Counsel states (in ABCMR Docket Number AR20110021991): 

* the NCOER has hindered the applicant's ability to be promoted as a result of a leadership failure that was out of his control
* the applicant's leadership failed to properly and completely document his leadership performance and/or potential
* the relief previously provided by the Board (consideration of his records by a STAB) was insufficient
* the STAB denied his opportunity to be considered on two separate occasions due to the shortcomings of others

3.  Counsel provides: 

* ABCMR Docket Number AR20070018306, dated 20 November 2008
* STAB memorandum, dated 14 March 2008
* Letter pertaining to ABCMR Docket Number AR20090018482, dated 12 July 2010
* Letter pertaining to ABCMR Docket Number AR20110021991, dated 22 May 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070018306, dated 20 November 2008.  A summary of the applicant's case is as follows: 

	a.  In 2008, in response to the applicant's request for promotion to SFC/E-7, removal of the contested NCOER, and other administrative corrections, the Board found several errors in the applicant's records stemming from the contested NCOER.  The Board recommended the applicant's records be corrected as follows:  placing a non-prejudicial explanation in his records explaining the non-rated period shown on his July 2002 through June 2004 NCOER; directing his personnel file be reviewed, corrected and/or updated for an out-of-date HIV test and issues of his security clearance; and referring him to a STAB for promotion consideration to SFC under the criteria of Fiscal Years (FY) 2005, 2006, and 2007; and if selected, he should be promoted with an appropriate date of rank/effective date, with entitlement to back pay and allowances. 

	b.  A STAB considered his records under the FY06 criteria convened on
14 March 2008 but did not select him for promotion.  On 12 July 2010, he submitted (through counsel) a request for reconsideration to this Board.  He contended that the Board's directives from its 2008 decision had not been implemented specifically a non-prejudicial explanation had not been placed in his file.  The Board confirmed that the directive had recently been “met” (i.e., received) but the corrected record had not been placed before a STAB.  Therefore, it directed that his records be reviewed by a STAB due to convene in October 2010.  The Board further noted that, because of the actions it was taking, the reconsideration essentially was premature and returned the request without prejudice, stating that the applicant could return to the Board if he felt the STAB results contained an error or injustice.

	c.  A STAB convened on 26 October 2010 but did not select him for promotion to SFC/E-7.  As directed by the ABCMR's July 2010 letter, he tried to contest the STAB results with a reconsideration request but the Board deemed his request was untimely and returned it without action.  He subsequently filed a complaint in the U.S. District Court for the District of Columbia and the Army voluntarily remanded the case back to the ABCMR.

2.  The applicant enlisted in the Regular Army on 27 September 1988 and he held military occupational specialties 71L (Administrative Specialist) and 42A (Human Resources Specialist). 

3.  He served throuigh multiple extensions or reenlistments in a variety of stateside or overseas assignments and he was advanced to staff sergeant (SSG)/E-6 on 1 May 2000. 

4.  On 31 January 2008, he and his counsel petitioned this Board for correction of his records as follows: 

* promotion to SFC/E-7 with a date of rank comparable with that assigned to his peers or 1 October 2005
* payment of back pay and allowances appropriate with the date of rank of 1 October 2005 
* removal from his records of the DA Form 2166-8 for the rating period July 2002 through June 2004
* directing that no negative assumptions be made based on the absence of the NCOER for the rating period July 2002 through June 2004

5.  On 20 November 2008, the Board determined that:


	a.   The evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommended his records be corrected by:

* placing a non-prejudicial explanation in his records explaining the non-rated period shown on the July 2002 through June 2004 NCOER 
* directing that the applicant's personnel file be reviewed, corrected, and/or updated to include specifically the issues of his security clearance, HIV testing, and medical examination status
* upon completion of the above actions, referring his case to an SFC STAB under the criteria of FY2005, FY2006, and FY2007
* if selected, he should be promoted with an appropriate date of rank/effective date, and paid all back pay and allowances

	b.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommended denial of so much of the application that pertained to:

* promotion to SFC with a date of rank comparable with that assigned to his peers or 1 October 2005, with back pay and allowances
* removal of the July 2002-June 2004 NCOER from his official records
* directing that no negative assumptions be made based on the absence of the NCOERs for the period July 2002 through June 2004

6.  The applicant retired from active duty on 30 September 2009 by reason of sufficient active service for retirement and he was placed on the Retired List in his retired rank/grade of SSG/E-6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 21 years and 4 days of active service. 

7.  The Board's decision was implemented on 7 January 2009.  The applicant's records were considered by the FY2011 Master Sergeant Enlisted STAB that convened on 26 October 2010.  By memorandum, HRC advised that: 

* his records were considered under the FY2006 SFC Selection Board (which convened on 31 January 2006) but he was not selected
* his records were scheduled to appear before the FY2014 Sergeant Major Training and Selection STAB on or about 3 June 2014 
* his records will be considered (by the FY2014 STAB) for promotion consideration under the FY2005 SFC board that convened on 2 November 2004 and under the FY2007 SFC board that convened on 30 January 2007

8.  On 20 November 2010, the applicant and his counsel submitted a request for reconsideration of ABCMR Docket Number AR20070018306.  However, on 12 July 2010, by letter, the applicant and his counsel were informed that:

	a.  In reviewing his reconsideration request, it was discovered the directive issued by the ABCMR in AR20070018306 has not yet been fully implemented by HRC.  Specifically, in this case, the ABCMR directed that a non-prejudicial statement be placed in his records explaining the non-rated period shown on the NCOER for the period July 2002 through June 2004 and that he should subsequently be referred to an SFC STAB under the criteria of FY2005, FY2006, and FY2007. 

	b.  The directive to place a non-prejudicial statement in his records has been met and a copy is provided to him in the correspondence.  However, it appears his records containing the non-prejudicial statement had not been placed before SFC STAB as directed by the ABCMR in its initial decision.  In coordination with HRC, it appears that the next opportunity for the applicant's records to go before the STAB will be during the FY2011 Master Sergeant Promotion Board which met in October 2010. 

	c.  As such, given the ABCMR's previous directive has not been fully implemented, it would be inappropriate to consider his reconsideration request at this time.  It was returned to him without prejudice and without action being taken by the Board.  However, if after he received the STAB results he still felt an error or injustice existed, he could resubmit an application to the ABCMR.

9.  On 30 August 2011, the applicant and his counsel again submitted a request for reconsideration of ABCMR Docket Number AR20070018306.  However, on 22 May 2012, by letter, the applicant and his counsel were informed that the staff of the ABCMR reviewed his request for reconsideration and determined that his original decision was, in effect, granted.  The available evidence clearly shows that his records were corrected to explain the non-rated time contained in his performance evaluation.  Furthermore, the appropriate promotion standby boards have considered his records for promotion to SFC.  This request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, his request for reconsideration did not meet the criteria outlined above, and it was returned without further action.

10.  On 16 December 2014, HRC issued the applicant two letters:

	a.  The first informed him that his records were considered for promotion to SFC by the STAB which convened on 29 October 2014 under the FY2005 criteria (that board originally convened on 9 December 2004).  However, the board did not select or recommend him for promotion and the Director of Military Personnel Management did not approve his name to be added to the recommended list.  

	b.  The second informed him that his records were considered for promotion to SFC by the STAB which convened on 30 October 2014 under the FY2007 criteria (that board originally convened on 13 March 2007).  However, the board did not select or recommend him for promotion and the Director of Military Personnel Management did not approve his name to be added to the recommended list.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant previously contended that his records contained administrative errors.  He petitioned this Board in early 2008 for correction of his records.  The Board granted him relief in that it recommended his records be considered for promotion to SFC by a STAB under the FY2005, FY2006, and FY2007 criteria.

2.  His records were in fact considered for promotion to SFC by the FY2005, FY2006, and FY2007, but in each case he was neither selected nor recommended for promotion.  

3.  Selection boards are composed of senior officers and NCOs of demonstrated judgment who are not allowed to divulge the reasons for selection or non-selection.  These members evaluate the Soldier's official record and select a number of NCOs for promotion within established selection constraints.  The Secretary of the Army in his Memorandum of Instructions establishes limits on the number of NCOs to be selected.  

	a.  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.

	b.  It is unfortunate that the applicant was not selected for promotion to SFC despite being considered multiple times; 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.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

	c.  It is a well-known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those promotion boards that did not select the applicant it must be presumed that what each board did was correct.  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. 

	d.  A non-selected NCO can only conclude that a promotion selection board determined that his or her 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.

3.  In conclusion, a comprehensive review of the applicant's records were conducted as directed by the Court, regarding the matters raised in the 2011 reconsideration request from 2011.  The comprehensive review determined that:

	a.  The record corrections the Board directed in 2008 have been fully completed and reflected in his records.  HRC did in fact place a non-prejudicial explanation in his records explaining the non-rated period shown on the July 2002 through June 2004 NCOER; his personnel file was reviewed and corrected; and HRC did in fact refer his records for promotion consideration by a STAB under the FY2005, FY2006, and FY2007 year criteria. 

	b.  The directed records corrections were complete when the STAB reviewed his records in each case.  The information that each STAB reviewed was the best representation of the applicant's personal traits and professional achievements.  He was simply not selected 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 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)                                         AR20140000250





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ABCMR Record of Proceedings (cont)                                         AR20140000250



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