MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 October 2003                  
	DOCKET NUMBER:   AR2003087745

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones, II 		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:  In effect, promotion reconsideration to master sergeant/sergeant major (MSG/SGM) by a standby advisory board (STAB).

APPLICANT STATES:  That his DA Form 2 and 2-1 that were forwarded to him for his review/signature were not considered by the promotion board.  From July 2001 until February 2002 his promotion packet was lost; therefore, an unsigned DA Form 2 and 2-1 were forwarded to the board.  His also states that his most current non-commissioned officer evaluation report (NCOER) for the period October 2000 through April 2001 was not considered by the promotion board.  In support of his application he submits copies of the announcement for the calendar year 2001 Reserve Active Guard/Reserve (AGR) MSG/SGM promotion board, his personal request for a STAB and the response from the Total Army Personnel Command (PERSCOM).

EVIDENCE OF RECORD:  The applicant's military records show:

At the time of his non-selection for promotion to MSG by the 2001 Reserve Components Selection Board, the applicant was serving in the pay grade of E-7 in the AGR program as a Personnel Management NCO.

On 3 September 2002, the Chief, Office of Promotions, Reserve Components, PERSCOM advised the applicant that after careful review of his record, his request for a STAB was not favorably considered.  In accordance with Army Regulation 140-158, paragraph 4-18e (10), the NCOER for the period covering October 2000 through April 2001 was not received and processed by the Army Reserve Personnel Command (AR-PERSCOM) prior to the convening date of the 2001 MSG board.  Therefore, in accordance with Army 140-158, paragraph 4-18d there was no material error.

On 22 September 2002, The Inspector General of AR-PERSCOM advised the applicant that his case had been reviewed and it was concluded that he did receive due process.  His only recourse to contest the disapproval for a STAB was the Army Board for Correction of Military Records.  

On 24 September 2002, the applicant replied to the 3 September 2002 memorandum from PERSCOM.  The applicant stated that although his rating officials submitted his NCOER late, it was forwarded in enough time to be processed, returned to the rating officials, corrected, and returned by the rating officials for further processing.  This is where he views a material error exists in his promotion file.

On 24 September 2002, the Chief, Office of Promotions, Reserve Components, PERSCOM, advised the applicant that the Evaluations Branch records show that 

his NCOER for the period in question was received and processed on 17 April 2002.  The regulation is clear and does not grant any loopholes for requesting a STAB based on the rater not being timely in completing soldier’s actions.

On 28 September 2002, the applicant submitted an IG action request.  On 9 October 2002, the Office of the IG acknowledged receipt of his request and advised an inquiry into the matter he presented had been initiated and upon completion he would be informed of the results.  The applicant did not submit any documentation on the results of this inquiry.

He was promoted to MSG with a promotion effective date and date of rank of 1 April 2003. 

Army Regulation 140-158, prescribes the policies and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers in the Army Reserve.  Chapter 4-18(d) of this regulation specifies that the Commander, PERSCOM (TAPC-MSL) will determine if material error existed in a soldier’s records when the selection board reviewed the file.  It must be presumed that a material error in the file may have contributed to non-selection.  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.  Sometimes, a long-standing error once corrected qualified the soldier for reconsideration based on the criteria of several boards.

The regulation further provides that within 1 year of notification of the board results, soldiers not recommended for promotion may request reconsideration by a STAB.  This is if they believe their record contained a material error when it was considered.

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

1.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to MSG/SGM by a STAB.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions; however, the applicant was considered and not selected for promotion to MSG/SGM in accordance with pertinent regulations. The Board also notes that after a review of the applicant’s records he is not entitled to promotion consideration by a STAB.  Pertinent regulations provide for STAB consideration within 1 year of notification of the board results.  Soldiers must request reconsideration if they believe their records contained a material error when it was considered.
3.  His records were complete and without material error when reviewed by the 2001 promotion selection board.  A review of the Evaluations Branch records show that his NCOER for the period in question was received and processed on 17 April 2002, subsequent to the 2001 RCSB; however, pertinent regulations do not provide for promotion reconsideration by a STAB based on the rater not being timely in completing soldier’s actions.

4.  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.

5.  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

__FCJ__  __WDP__  __MMH__  DENY APPLICATION

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

INDEX

CASE ID	AR2003087745	
SUFFIX		
RECON		
DATE BOARDED	20031021	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.