MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 October 2000
	DOCKET NUMBER:   AR2000042689

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Jaime Perez		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his request for promotion to Sergeant Major (SGM).

APPLICANT STATES:  In effect, that he was not selected for promotion by the 1995 SGM promotion selection board as a result of the Army’s negligence and mismanagement in handling that promotion selection board.  He also claims that his request to this Board for redress was unfairly denied because the Department of the Army (DA) never effectively refuted his contentions in the advisory opinion they provided from the Army Personnel Command (PERSCOM) Promotions Branch.  In addition, he comments that while they were freely allowed to submit their advisory opinion, he was never allowed to rebut the information and argument they advanced in this opinion and he was denied the opportunity to appear before the Board.  

He further states, in effect, that DA by raising the fact he was not selected for promotion in 1996 and 1997 should open the door for reconsideration of his case.  He comments that his non-selection for promotion to SGM in 1996 and 
1997 was the result of his being discriminated against.  He claims that this discrimination is evidenced by the fact that a female soldier, who was in the secondary zone of consideration, was selected for promotion ahead of him even though he was in the primary zone and was at the time attending the Sergeants Major Course at the United States Army Sergeants Major Academy (USASMA).  He further comments that he had been selected as an alternate for attendance at the USASMA on two occasions and that these selections attest to his being qualified for promotion.  He also claims that the  Army’s promotion policy is not to promote soldiers in the secondary zone when there are soldiers in the primary zone that are fully qualified.  This he claims proves that this less qualified female soldier was selected for promotion to fill a quota.  

He further comments that although he had graduated from the USASMA after meeting very high standards he was still not selected for promotion and that he was the only Medical Noncommissioned Officer (NCO) in his USASMA graduating class that was not selected for promotion.  This he states is the result of his having been blackballed by the Army’s Medical Department Command (MEDCOM) Command Sergeants Major (CSM) as a result of his complaining about his non-selection in 1995.  

He also contends that, in effect, before the 1995 SGM promotion selection board, the field was alerted that there would only be one promotion to SGM in their military occupational specialty (MOS).  As a result of this, and because he had been selected to attend the USASMA as an alternate, another dental NCO in his command submitted his retirement application.  He claims that in spite of Army policy two MEDCOM CSMs deliberately allowed the other NCO’s records to go before the promotion selection board and this showed favoritism. 
He further states that these two MEDCOM CSMs also allowed the other NCO to clear a screening process that would have eliminated his records from review by the SGM promotion selection board and assisted the NCO in processing an exception to policy in order to accept his promotion to SGM once he was selected by the board.  He contends that MEDCOM CSMs along with the MEDCOM and PERSCOM commanders knowingly, intentionally, willingly, and deliberately used their rank and positions to obstruct the Army promotion policy.  

Additionally he comments that the two CSMs were members of the 1995 SGM promotion selection board and they were fully aware that this other NCO was ineligible for promotion.  However, they still ensured the other NCO was selected for promotion, knowing that he, by virtue of his selection to attend the USASMA, was more qualified for promotion.  The applicant’s expanded argument on these issues is contained in his enclosed statements which he provided with his application for reconsideration. 

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 22 July 1998; and in a subsequent memorandum prepared to reflect the Board’s reconsideration of the case on 27 April 2000 (COPIES ATTACHED).

On 23 September 1974, the applicant entered the Regular Army and he has continuously served on active duty in that status ever since.  He is currently serving as a Master Sergeant (MSG) at Fort Bragg, North Carolina.  His date of rank to MSG is 1 March 1992 and he graduated from the USASMA on 20 May 1997.

Incorporated in the previous decisional documents issued by this Board was an advisory opinion provided by PERSCOM.  This opinion indicated that the applicant had been considered and not selected for promotion by the 1994, 1995, 1996, and 1997 SGM promotion selection boards.  In addition, it is a matter of record that the applicant was provided an opportunity to submit a rebuttal to this advisory opinion, which he did on 2 February 2000.

The conclusions advanced in the MOC issued by this Board on 27 April 2000 specifically found that the applicant’s contention, that he was unfairly and unjustly denied promotion by the 1995 promotion selection board as a result of material error, mismanagement, gross negligence, or because of retaliation by anyone lacked merit and had no basis in fact.  In addition, this Board panel concluded that his contention that his selection to attend the USASMA should have automatically resulted in his selection for promotion and that soldiers in the secondary zone could not be selected for promotion ahead of soldiers in the primary zone were not factual.  
Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes Army enlisted promotions and reductions policy and procedure.  Chapter 4 contains guidance and information on the management of the centralized promotion system for soldiers in the ranks of Sergeant First Class (SFC), MSG, and SGM.  It states, in pertinent part, that criteria for primary and secondary zones of consideration for each grade will be announced by the commander of PERSCOM before each board. 

Paragraph 4-3 (Promotion boards) outlines the composition and conduct of enlisted promotion boards.  It indicates that selections boards will recommend a specified number of soldiers by MOS from the zones of consideration who are the best qualified to meet the needs of the Army.  The total number is the projected number the Army needs to maintain its authorized-by-grade strength.  It further states that soldiers who are not selected for promotion will not be provided specific reasons for non-selection.  Soldiers may consult the statistical analysis portion of the promotion list or they may write to the Career Professional Development NCO of their respective branch for an analysis on how to enhance their careers. 

Army Regulation 15-185 establishes the procedures for making application, and the consideration of applications, for the correction of military records to the Secretary of the Army acting through the Army Board for Corrections of Military Records.  Section IV contains guidance on the entitlement to hearings/personal appearances before the Board.  It states, in pertinent part, that the applicant will be entitled to appear before the Board in person in cases where the Board determines that it would be warranted.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In the opinion of the Board, other than his request for a personal appearance hearing, all the contentions and allegations advanced by the applicant in his current reconsideration request were adequately addressed in the decisional documents previously issued by this Board.  Therefore, the Board finds no basis on which to support a change of the prior denial decisions rendered in this case.  

2.  Further, as evidenced in the April 2000 decisional document issued by this Board, the applicant was given ample opportunity to respond to the PERSCOM advisory opinion provided to the Board.  The evidence of record shows that he in fact did submit a rebuttal to the advisory opinion that was reviewed and considered by the Board during its deliberations at the time.

3.  There is no evidence of record or independent evidence submitted by the applicant to support his claim that he was discriminated against because a female NCO was promoted from the secondary zone and another NCO was promoted even though he had an approved retirement.  Further, there is a lack of an evidentiary basis on which to support the applicant’s contention that Army MEDCOM and PERSCOM officials conspired to prevent him from being promoted.  

4.  The Board finds that the applicant’s belief that he was systematically discriminated against in the promotion process since 1995 may be rooted in his significant lack of understanding of the Army’s  promotion system.  As he has been previously advised, it is not now nor has it ever been the Army’s policy to automatically promote members to SGM based on their being selected for attendance at the USASMA.  Further, Army promotion policy does not prohibit the selection of a member from the secondary zone when there is a member qualified for promotion in the primary zone.  

5.  Army promotion policy allows promotion selection boards to select members for promotion whom they, in their collective best judgement, consider best qualified for advancement.  Clearly, by regulation and policy, these selections may be from either the primary or secondary zones as long as they are within the parameters and criteria announced by DA in the zone of consideration message they release prior to each promotion selection board. 

6.  The applicant’s request for a personal appearance hearing before this Board was noted and considered.  However, the facts and circumstances of the case, as currently documented, do not warrant a personal appearance hearing.  The Board finds that the information of record is sufficient to render a decision at this time.  

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__slp____  ___eja __  __jp ____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042689/AR2000043325	
SUFFIX		
RECON	1998/07/22 - 2000/04/27	
DATE BOARDED	2000/10/05	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.