IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20150007887 


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, promotion to sergeant first class (SFC)/E-7 in the Regular Army.  He also requests a personal appearance.

2.  The applicant states:

* he validated his promotion file on 17 December 2012 for the Fiscal Year 2013 (FY13) SFC promotion board 
* a "9X" Reenlistment Eligibility Code was placed on his Enlisted Record Brief (ERB) on 18 December 2013
* the "9X" code is a reenlistment eligibility prohibition code; however, he was already serving on an indefinite reenlistment 
* he has never been flagged in his career; however, upon further review by the Brigade S-1, it was determined that an erroneous flag was placed on his records for the past year; the flag was removed 6 months later 
* he wants a detail review of his records because he has been overlooked for promotion to SFC/E-7 for the past 6 years and in his opinion, something was found in his records and he did not know about it
* he has proven to be above his peers in military requirements, education, civilian education, and in 2013 he was passed over by discrimination due to the 9X code on his ERB
* he wants to know who tampered with his records and if there is anything in his restricted file that prohibits him from promotion 
* he wants a detailed reason for his non-promotion  

3.  The applicant provides a binder with three appendices as follows: 
	a.  Appendix A contains letters, list of enclosures, current ERB, transaction with the ERBs when the 9X code was applied, overseas tour credit, military education, and individual awards. 

	b.  Appendix B contains his Noncommissioned Officer Evaluation Reports (NCOER) from 20060601 to 20150114.

	c.  Appendix C contains his civilian education, military education, and certificates/diplomas. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 20 March 1997.  He holds military occupational specialty 88H (Cargo Specialist). He served through multiple reenlistments and was promoted to staff sergeant (SSG)/E-6 on 1 March 2006.  

2.  His records show he was awarded a Bachelor of Science degree in 1998 and a Masters of Education degree in 2012.  He completed several military education courses including the Combat Life Savers Course, Equal Opportunity Course, and Senior Leader Course. 

3.  He was awarded multiple individual and service awards including seven awards of the Army Commendation Medal, four awards of the Army Achievement Medal, the Iraq Campaign Medal, the Afghanistan Campaign Medal, and the NATO Medal.  In addition, his ERB lists all his awards, decorations and service ribbons. 

4.  He provides multiple copies of his ERB (14 copies) and his NCOERs from 1 June 2006 to 14 January 2015.  His NCOERs reflect a successfully rated or excellent NCO.  There were no referred reports or derogatory comments noted on his NCOERS.

5.  It appears through email communications he inquired into a Standby Advisory Board (STAB) through his chain of command.  An official of the U.S. Army Human Resources Command (HRC) responded to his inquiry by stating that a review of his documents shows the applicant would be denied a STAB.  A flag would not have stopped him from being considered and selected for promotion by a promotion board.  However, it would have stopped his promotion if he had been selected.  In addition, as an NCO with his years of service, he did not seem to have exercised due diligence in that he would have had to certify his promotion file before each board.  Finally, there was no flag on his records from 2003 to 2013; his "ERUP" Code was 10 (fully eligible). 
6.  In the processing of this case, an advisory opinion was received from HRC on 18 June 2015.  An advisory official stated that after a review of the applicant's application for due process review and promotion consideration to SFC (Regular Army), it was determined his request could not be substantiated.  Records available to the Senior Enlisted Promotion section indicate the applicant was considered for promotion on the Regular Army SFC Promotion Boards from FY2009 through FY2014, but not selected.  He is currently being considered for the FY2015 Regular Army SFC Promotion Board.  Department of the Army Selection Board members are not provided the "IMREPR/FLAG" codes on any Soldier that is considered for promotion.  The fields that represent "IMREPR/FLAG" codes on a Soldier's promotion board ERB are redacted prior to the promotion board convening.  During the certification period, Soldiers can view and certify their ERB prior to the convening date of the board.   

7.  The applicant responded to the advisory opinion on 10 July 2015.    

	a.  He is aware the "IMPER/FLAG" code was redacted on his board ERB with great understanding (now); however, after he validated on December 17, 2012 the code was placed on his AKO (Army Knowledge Online) ERB on 18 December 2012.  At the time, he did not pay attention to it because he was deployed in Afghanistan.  He agrees that it was not visible on his board ERB but he blames a toxic leader that he deployed with to Iraq during 2011 for placing an erroneous code; he (the toxic leader) was his HRC branch manager in 2012.  He is not pointing any fingers.  He is only being up front and before taking this position he was told (by that person) to drop his retirement papers at 17 years in the Army and the toxic leader said they would definitely be signed.  He has never been a recruiter, drill sergeant, instructor or anything along those lines.  He has been performing successfully at positions above his current rank. 

	b.  The disagreement he has is that the non-selection from FY09-FY14 may have been due to an erroneous FLAG during those years from research by the Brigade Officer-in-Charge.  He told him the reason for his non-selection was the FLAG.  There is no explanation given of why the 9X code was placed in his records and no explanation from Brigade or higher echelons why he was flagged. It seems everything was dismissed.  His accomplishments are numerous and are documented in the application he sent. 

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 

	a.  Chapter 4 provides for the rules and steps for managing the centralized promotions (SFC, Master Sergeant (MSG), and Sergeant Major (SGM)) for the Regular Army and Army Reserve Active Guard and Reserve.  Paragraph 4-3 states in pertinent part that a selection board will recommend a specified number of best qualified Soldiers by MOS from the zones of consideration to meet the needs of the Army.  The total number selected for each MOS is the projected number the Army needs to maintain its authorized-grade strength.  Soldiers who are not selected for promotion will not be provided a specific reason for their non-selection.  Counseling of Soldiers not selected for promotion is not required. 

	b.  Paragraph 4-13 (Enlisted standby advisory board) states the composition of an enlisted STAB is under identical criteria as that of enlisted selection boards. A STAB will consider records (1) Not reviewed by a regular board; (2) Which 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.  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 and appropriate supporting documentation must accompany the request.  Requests that do not meet the aforementioned guidelines will be disapproved at the local level and will not be forwarded to HRC. Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their sequence number is reached.  

9.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body (emphasis added). The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The intent of a STAB is to correct a material error.  A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the NCO was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the NCO would have been recommended for promotion. 

3.  By regulation, promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the ABCMR is not an investigative body, it does not have the luxury of reviewing all of the records that were considered by those promotion boards that did not select the applicant.  Therefore, it must be presumed that what the promotion board did was correct based on the needs of the Army.  Since promotion selection boards are not authorized to divulge the reasons for selection or non-selection of any Soldier, specific reasons for the promotion board's recommendations are not known.  

4.  A non-selected Soldier 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.  

5.  The ABCMR is not a promotion board; if and when it determines an error, the ABCMR directs an appropriate agency to take corrective action.  The corrective action with promotion issues is normally via a STAB.  In order to qualify for a STAB, there must be a material error.  The issues of a flag and/or reenlistment code on the ERB were not relevant during the promotion selection process.  Because he failed to show a material error, he does not qualify for an SSB and his requested relief should be denied. 

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)                                         AR20150007887



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ABCMR Record of Proceedings (cont)                                         AR20150007887



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