RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  22 January 2004
	DOCKET NUMBER:  AR2003087561

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Ronald J. Weaver		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be reconsidered for selection to master sergeant (MSG/E8) by the calendar year (CY) 02 Board.

2.  The applicant states that his request is based on issues from an After Action Review (AAR) recently released by the USAR CY02 Army Guard/Reserve (AGR) MSG)/Sergeant Major (SGM) Selection Board.  He states that the AAR issues presented by the Promotion Board were incomplete records, missing Noncommissoned Officer Evaluation Reports (NCOERs), photos, lack of Army Physical Fitness Tests (APFT), and/or presence of temporary physical profiles.  The promotion board's last point on recommendations were to advise soldiers and commanders to understand the importance of the APFT and profile requirements allowed by regulation.  They also recommended that extended profile issues should be explained in a letter to the board.  None of the above issues pertained to his promotion packet presented to the Selection Board.  His personnel records, NCOERs, and photo were complete and comprehensive as required by the board.  In addition, the absence of an APFT and the presence of a temporary physical profile were within Army Regulations.  

3.  In his promotion packet he included a letter of explanation to the selection board regarding the lack of an APFT during his rating period and temporary profiles that exceeded one year.  The lack of an APFT and the presence of his temporary profile were addressed according to Army Regulation 140-158.  This regulation exempts promotable soldiers from the APFT requirement who had a valid permanent or temporary physical profile that prevented the administration of an APFT.  In addition, the soldier's commander had to certify the soldier's capability of performing the duties of his primary military occupation specialty (PMOS), as presented on their noncommissioned officer evaluation report (NCOER).  His delay in obtaining a permanent profile was unavoidable during the one-year post-operative recovery period required by regulation before issuance.  His permanent profile was finally obtained after the CY02 Board convening date and is also attached to his application.  

4.  The applicant provides several copies of profiles and NCOERs; DA Form 705 (APFT Scorecard); DA Form 2A (Personnel Qualification Record – Part I); and a copy of his DA Form 2-1 (Personnel Qualification Report – Part II).

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he enlisted in the US Army Reserve on 21 December 1985, as a cavalry scout, in military occupational specialty (MOS) 19D.  

2.  He was promoted to Sergeant First Class (SFC/E-7) with a date of rank (DOR) and effective date of 1 September 1995.

3.  He was ordered to active duty in the AGR on 19 September 1997. 

4.  The applicant provided several copies of his temporary and permanent profiles that were issued due to neck, back, and knee pain.  He was diagnosed as having concussion syndrome and laminectomy (excision of the posterior arch of a vertebra).  His profiles allowed him to either walk or bicycle for the APFT.  He was able to do walk, bicycle, or swim at own pace and distance. 

5.  On 19 February 2003, he was issued a permanent profile due to laminectomy that allowed him to bicycle for the APFT.  It also indicated that his permanent change in profile did not require a change in his MOS and duty assignment.

6.  In the processing of this case an advisory opinion was provided by the 
Chief, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), dated 14 April 2003.  PERSCOM stated that after careful review of the applicant's record, his request for a Standby Advisory Board (STAB) was not favorably considered.  A review of his promotion consideration file for the CY02 USAR AGR MSG/SGM Selection Board revealed that his expiration of term of service (ETS) was incorrect on his DA Form 2A; however, his ETS date of 13 September 2003 was within the criteria for consideration for promotion.   It was determined that his ETS date alone would not have caused his selection or nonselection for MSG.  Therefore, in accordance with Army Regulation 140-158, paragraph 4-18, there was no material error. 

7.  The applicant was provided a copy of this opinion for possible comment prior to consideration of his case. 

8.  In his rebuttal, dated 21 May 2003, the applicant stated that he is refuting the recent decision made by PERSCOM regarding their conclusions drawn after reviewing his promotion file.  In his letter to the board, referencing the AAR issues, he continued to dispute the promotion board's original decision, as well as their ensuing findings.  Due to his ETS of 13 September 2003, he would greatly appreciate a timely review of his record, as the Board's finding will affect his future decisions regarding his career. 

9.  The applicant provided a copy of his DA Form 705 that shows he passed his APFT on 22 May and 16 September 2003.  His NCOER for the period July 2002 to June 2003 shows that he passed his most recent APFT and met the height and weight requirements.

10.  On 12 August 2003, the applicant reenlisted in the USAR for an indefinite term. 
11.  Information provided by PERSCOM, Office of Promotions, Reserve Components, Enlisted Promotions, revealed that the applicant was considered, but not selected by the CY01 and CY02 MSG Selection Board due to miscellaneous reasons.  The applicant is currently being considered by the CY03 AGR MSG/SGM Selection Board that will convene on 18 February 2004.

12.  Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers 
of the US Army Reserve (USAR).  Paragraph 1-14 pertains to nonpromotable status of all grades.  Subparagraph 1-4u states that soldiers will not be advanced or promoted if they have failed the APFT or have not taken an APFT within the last 9 months (AGR soldiers), or 18 months (all except AGR soldiers).  Soldiers in this category will be flagged.  The DOR and effective date of promotion for soldiers who meet the eligibility requirements while flagged will be the day following successful completion of the most recent APFT.  Soldiers with a valid permanent or temporary physical profile that prevents the administration of the APFT are exempted from meeting the APFT requirements.  In addition, the soldier's commander must certify that the soldier is capable of performing the duties of their MOS.  

13.  Chapter 4 governs promotion of soldiers serving on AGR status.  Paragraph 4-12 pertains to selections.  Selection by Headquarters Department of the Army (HQDA) boards will be based on impartial consideration of all eligible soldiers in the announced zone.  Boards will select the "best qualified" soldier in each MOS for promotion to Staff Sergeant (SSG) through SGM.  A specific number of soldiers will be recommended according to MOS from the zones of consideration who are the best qualified to meet the current and projected needs of the USAR AGR program.  The total number that may be selected in each MOS is based on USAR AGR requirements to fill current and projected position vacancies.  These requirements are announced in the Memorandum of Instruction (MOI) or HQDA message.  Soldiers will not be given specific reasons for nonselection.  Board members may neither record nor give reasons for selection or nonselection of individual soldiers.  Selections are based on qualifications and the projected need in each MOS.  

14.  Paragraph 4-18 pertains to Enlisted Standby Advisory Boards (STAB).  It states that the Enlisted STAB will consider records from the primary zone (PZ) and the secondary zone (SZ) not reviewed by a regular board.  It also states that the names of soldiers selected by the Enlisted STAB will be integrated on the recommended list, promoted along with their peers when their sequence number is reached, and a vacancy or projected vacancy occurs.  The Commander, PERSCOM, will determine if a material error existed in a soldier's record when the file was reviewed by the selection board.  It must be presumed that a material in the file may have contributed to the nonselection.  An error is material when, in the judgment of a mature individual familiar with selection board proceedings, a reasonable chance exists that had the error not existed, the soldier may have been selected.  Soldiers requesting reconsideration normally will be granted reconsideration only for the most recent board held prior to the soldier's request.  The soldier will be given reconsideration for only one board.  Reconsideration will normally be granted when a condition existed according to regulation that was not reviewed by a promotion selection board.  The following items do not constitute material error as defined and reconsideration will not be granted:  (1) Omission of letters of appreciation, commendation, congratulations, or other similar commendatory correspondence; (2) Documents which were not derogatory having been filed on the wrong performance fiche; (3) Absence of documents written, prepared, or computed following convening of the board; (4) Incorrect data on a DA Form 2-1 and DA Form 2A which had been reviewed and confirmed by the soldier prior to review by the board; (5) Absence of an official photograph or presence of an outdated photograph; and (6) Absence of an award for achievement or meritorious service lower than the Meritorious Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was properly considered for promotion to MSG by the CY01 and CY02 AGR MSG/SGM Selection Board but was not selected.  There is no evidence of record, and the applicant has provided no compelling evidence, that a material error existed in his promotion file.  Therefore, there is no basis for reconsideration for promotion to MSG of the most recent board.

2.  The AAR issues mentioned by the applicant have been considered.  However, the advisory opinion prepared by PERSCOM revealed that his ETS was incorrect and was within the criteria for consideration for promotion.  This issue alone would not have caused his selection or nonselection for MSG and there was no material error in accordance with regulation.

3.  The evidence clearly shows that the applicant has a valid permanent profile, an updated NCOER, passed his most recent APFT, and has an indefinite term of service in the USAR.  Information provided by PERSOM has assured this Board that the applicant's file will be considered by the CY03 AGR MSG/SGM Selection Board that will convene on 18 February 2004.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jl___  __rw____  __ao______  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.

		____Joann Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087561	
SUFFIX		
RECON		
DATE BOARDED	20040122	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	310	
2.		
3.		
4.		
5.		
6.