PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  16 January 2003
	DOCKET NUMBER:  AR2002073196

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Ms. Marla J. Troup		Member	
	Mr. Arthur A. Omartian		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his date of rank (DOR) and effective date for 
sergeant first class (SFC/E-7) be adjusted from 15 February 2002 to 11 April 2001.

3.  The applicant states that he was inadvertently omitted from the 2001 promotion list due to an administrative error and was on the 2000 promotion list.  He had exhausted all avenues available through his chain of command and now requests assistance from this Board.  According to regulation, his records were entitled to be reviewed by a Standby Advisory Board (STAB) to have this error corrected and his name added to the list.  His commander attempted to have this error corrected but was denied on three occasions.  He asked that the Inspector General (IG) review the matter.  His case was forwarded for assistance to the IG at the National Guard Bureau (NGB).  The Enlisted Personnel Policy Branch was asked for an interpretation of the regulation which was favorable.  A letter was forwarded to the Promotions Branch stating that he should be entitled to have his packet boarded and added to the list.  

4.  He also states that the Military Personnel Enlisted Promotions Program (MP-EPP) branch, in his state, refused to board his packet citing that they did not cause the error.  They were not responsible for correcting the error.  He has been on active duty since 1989 and plans on making the military a career.  He was on the 2000 promotion list and there was no reason why he would not have submitted his request to be reviewed for consideration for the 2001 list.  His commander sent him to the Advanced NCO Course (ANCOC) thinking that he was already selected only to discover that he was not even on the promotion list to SFC/E-7.  He also stated that he had copies of the documents that were provided requesting his consideration of education and promotion to SFC/E-7.  This administrative error could be a very costly one for him both monetarily and career wise.  If he is unable to correct the error he will lose over $3,000 in pay and 10 months time in grade (TIG).  In support of his application, he submits copies of his:  Promotion Point Worksheet; DA Form 2166-7 (NCO Evaluation Report), ending November 2000; two DA Forms 1059 (Service School Academic Evaluation Report); and several memorandums pertaining to his request.

5.  The applicant’s military records show that he is currently serving in the Pennsylvania Army National Guard (PAARNG) in the rank of SFC with a DOR and effective date of 15 February 2002.

6.  He had been promoted to SSG/E-6 effective 14 July 1997.

7.  The applicant provided a copy of a computer-generated Enlisted Promotion Point Worksheet, dated 22 November 2000, which shows that he was being considered for promotion.  He also provided a copy of a Promotion Eligibility Roster (PER) which shows that he was being considered for the next higher grade.

8.  The applicant's DA Form 1059, dated 10 April 2001, shows that he attended
ANCOC, Phase I, in MOS 79T30, and his DA Form 1059 dated 27 April 2001, shows that he attended Phase II and achieved course standards at both courses.

9.  The applicant provided a copy of a memorandum from his unit, dated 10 April 2001, Subject: Addition to the 79T List.  The Operations Sergeant Major (SGM) requested that the applicant's name be added to the 79T List, that he was omitted from the list due to administrative error, and that promotion orders with an effective date of 11 April 2001 be published.  

10.  On 17 April 2001, the MP-EPP Manager responded to the request stating that the request was denied.  As a normal part of the preparation for the E-6 to
E-7 board, each unit is provided a Promotion Eligibility Roster (PER).  On this roster is listed each eligible soldier for promotion consideration for the grade being considered.  This roster was to be annotated and returned to the MP-EPP, along with each and every NGB Form 4100-1-R-E (Enlisted Promotion Worksheet), in order to verify and insure all eligible soldiers were being considered.  MP-EPP reviews each NGB Form 4100 and verifies whether the soldiers meet the cutoff scores established.  It also allowed MP-EPP to ascertain why soldiers were not considered and provide the appropriate STAB so the soldier may obtain list status.  In the applicant's case, the PER was annotated "did not turn in."  This led the MP-EPP to believe that the applicant chose not to be considered and therefore a STAB was not authorized.

11.  On 23 April 2001, the Operations SGM submitted a second request for a STAB, indicating that due to administrative error the applicant was left off the list. He also stated that the error was the exclusive responsibility of Recruiting Headquarters.  It had been determined by MP-EPP that the applicant failed to turn in his NGB Form 4100-1-R-E and declined consideration for promotion.  This assumption was unjustified due to the fact that the applicant never received his promotion worksheet.  He never had the opportunity to submit his worksheet which led to his unit submitting the PER with the aforementioned comment.

12.  On 25 April 2001, the MP-EPP responded to the second request.  The applicant's case was denied once again.  The EPP did not have the ability to correct all deficiencies that occur through unit processing.  If the procedures of National Guard Regulation (NGR) 600-200, chapter 11, along with PAARNG Pamphlet and the Memorandum of Instruction (MOI) were followed, that would place the responsibility on their office.  This included returning all NGB Form 4100-1-R-Es to the MP-EPP for everyone on the PER.  The PAARNG Pamphlet and the MOI both specifically address what to do in the case of non-receipt of a NGB Form 4100-1-R-E.  If an NGB Form 4100-1-R-E is not received the applicant is considered ineligible for consideration and the soldier will wait unit the next board for their respective grade.  In the applicant's case, he will be eligible to be considered during the January 2002 board. 

13.  On 27 April 2001, the Recruiting SGM responded with a third request for a STAB.  This request was based on the same previous issues that were discussed in his earlier request that were directly attributed to the incompetence of an NCO.  The NGR 600-200, chapter 11-53 stated that a STAB is authorized when "error is considered material when there is a reasonable chance that had the error not existed the soldier would have been selected."  Therefore, it was determined by this command that the applicant was eligible for a STAB because there was more than a "reasonable chance" that the fault did not lie with the applicant.  Promotion to E-7 is a very serious component part that ultimately affects the livelihood of the applicant.  The applicant's request for a STAB should not be handled with such a stringent reference application.

14.  On 11 May 2001, the Enlisted Branch Manager responded for the third time and returned the applicant's request without favorable consideration.  The SGM's comments pertaining to the NGR 600-200, chapter 11-53e were not considered relevant in the applicant's case.  It pertained to an option for a STAB if the applicant's records had actually been received and boarded.  In his case, the Recruiting Command must accept responsibility and it was stated so in the memorandum that his command took the responsibility for not ensuring that each soldier's Promotion Eligibility Worksheet listed on the PER was properly processed.  The requirements were quite clear and attached to each PER.  Whoever was appointed within the Recruiting Command Administrative Section, as the Battalion or Equivalent Command Enlisted Promotion Program Manager must account for ensuring timely completion and validation of all NGB Forms 
4100-R-E to include meeting the established suspense date for return to EPP.  

15.  The response went on to state that the commands validation of the PER is accepted as the final product once it is received on a transmittal letter at EPP.  
A procedural precedence setting decision to have the applicant appear before a STAB was disapproved.  No late NGB Form 4100-1-R-Es were processed in the past and all promotion points worksheet were returned after the established board date for the particular grade being considered for promotion.  If the applicant's worksheet had been received prior to the board date the denial 
would not be necessary.  It was unfortunate that the only one suffering in this situation was the soldier.  The applicant has been integrated into the next years' promotion eligibility cycle.  It was further stated that this was the final determination on this matter and further requests would not be entertained.  
16.  On 23 October 2001, the PAARNG Assistant IG reviewed the applicant's case.  A thorough inquiry was conducted in his request for assistance.  Their inquiry was extended to the NGB policy department to interpret the intent of the regulation.  A response was received from the NGB IG in regards to the applicant's request.  The policy branch of the NGB reviewed the reference with the applicant's case in mind.  It was determined that the applicant was eligible for a STAB and the fact that his records were not submitted was considered to be a material error.

17.  He was promoted to SFC/E-7 with an effective date and date of rank of 15 February 2002.

18.  In the processing of this case, a staff advisory opinion was provided by the 
Chief, Personnel Policy, Programs and Manpower Division, of the Army National Guard (ARNG).  The Chief determined that after a thorough review of the applicant's record that he was entitled to a STAB in accordance with NGR
600-200, paragraph 11-53e.

19.  The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of his case.  The applicant responded within the timeframe allotted and concurred on 19 December 2002.

20.  NGR 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers.  Chapter 11 pertains to transitional promotion and reduction policy.  It prescribes policy and procedures for advancement, promotion, lateral appointment, reduction, and restoration for all National Guard of the United States (ARNGUS) enlisted soldiers.

21.  Paragraph 11-53, of the regulation states that STABs are convened to consider the records of soldiers:  (1) Not reviewed by a regular board; (2) Whose records, due to material error, were not reviewed by the regular board; and (3) Whose records were reviewed by the regular board, were not selected for promotion, and whose records contained a material error which may have been a factor in nonselection.  Error is considered material when there is a reasonable chance that had the error not existed the soldier would have been selected.

22.  Paragraph 4-8 of the PAARNG Pamphlet 600-200 pertains to STABS.  It states that commands that feel special circumstances or conditions exist, specified in paragraph 11-53, of NGR 600-200, for the conduct of a STAB, may request that a board be held on behalf of one or more soldiers.  Commanders may recommend soldiers who were eligible for consideration but were not considered, or who were not fairly considered.

CONCLUSIONS:

1.  The evidence of record shows that the applicant was inadvertently omitted from the 2001 promotion list due to an administrative error.  He exhausted all avenues available through his chain of command and according to regulation his records were entitled to be reviewed by a STAB to have this error corrected and his name added to the list.

2.  The applicant's commander attempted to have this error corrected on three separate occasions but was denied.  The PAARNG IG reviewed the matter and a thorough inquiry was conducted for assistance and extended to the NGB policy department to interpret the intent of the regulation.  A response was received from the NGB IG, which determined that the applicant was entitled to a STAB since his records were not submitted and was considered to be a material error.

3.  The Board concurs with the opinion of the ARNG that the applicant was entitled to a STAB in accordance with NGR 600-200, paragraph 11-53e.  Therefore, he is entitled to appear before a STAB under the 2001 criteria.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:

a.  by sending the appropriate enlisted records for the applicant to the next scheduled STAB for promotion consideration to sergeant first class under the 2001 criteria;

b.  if selected for promotion to sergeant first class, by promoting him with the appropriate date of rank and effective date of promotion consistent with his STAB results; 

c.  by providing him all back pay and allowances consistent with the above corrective actions; and

d.  by amending Department of Military and Veterans Affairs Orders 032-096, dated 15 February 2002, to show that he was promoted to the pay grade of SFC/E-7 with a DOR and effective date determined by the STAB results.

BOARD VOTE:  

__ro___  ___mt___  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O'Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002073196	
SUFFIX		
RECON		
DATE BOARDED	20030116	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	21	
2.		
3.		
4.		
5.		
6.