MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:   AR1999031238

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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:  Promotion to Sergeant Major (SGM) or submission of his records for standby advisory board consideration under the 1998 and 1999 promotion board criteria. 

APPLICANT STATES:  That the Army’s mismanagement and negligence resulted in his not being selected for promotion by the 1995 selection board.  He was denied the opportunity to compete for promotion by the 1998 selection board.  He has been denied promotion because of DA arbitrary and capricious policies that changed each year, policies which were contrary to standard policies and law.  The applicant submits a copies of his evaluation reports, a copy of his academic evaluation report showing that he graduated from the Sergeants Major Academy (SMA), a copy of his personnel records, a copy of the document denying his request for an exception to policy to appear before the 1998 selection board, and a synopsis of his military career.

The applicant states, in effect, that he should have been promoted in 1995; however, the personnel managers at major Army commands and DA erred in not promoting him once he was enrolled in the SMA. 

He states that he could not compete for promotion in September 1998, although he still had a 9 month service obligation.  A DA message required 12 months of remaining service [in order to be eligible for consideration].  According to DA policy, however, his attendance and graduation from the SMA entailed a 2 years service obligation from the date of graduation (14 June 1997 to 14 June 1999).  The retention control point (RCP) system was first used by the 1997 board.  Prior to the convening of the board, the Army was fully aware that the RCP was going to be extended for Master Sergeants (MSG) from 24 to 26 years, and should have extended the zone of consideration.  The Army waited until after the board adjourned to announce the extensions.  The policy of not allowing soldiers to compete for senior enlisted promotions because of less than one year remaining in the Army is unjust.  The RCP system is a means whereby the Army discriminates.  He requested that he be considered by the 1998 board, but he was informed that there was no exception to policy and his request was denied; however, the Army did grant an exception to policy for other SMA graduates.

He should have been promoted while a student at the SMA or after graduation.  When the Army started the 9 month course at the Academy, it was understood that soldiers would be promoted prior to attending, while a student, or by the first selection board after graduation.  He was the only NCO in his career management field that did not get promoted.  He was informed that, when he was in the secondary zone for promotion, he could not be selected over anyone in the primary zone; but in 1996 a soldier in the secondary zone was selected over him, then in the primary zone. 

He should have been selected for promotion in 1997.  Even though no dental soldiers were selected, one was appointed as a Command Sergeant Major (CSM), which should have opened a position for him.  The Army allows promotion over the limit in military occupational specialties (MOS).  The promotion board president can also request permission to promote with no allocation in special cases like his.

He was not able to compete for promotion in 1998 and again in 1999 because of the RCP system.

The applicant relates his assignments and his work in responsible positions, his military and civilian education, and states that his military record is immaculate, and that he is the most qualified MSG in the Army Dental Corps.

He states that it is not fair to require him to complete his service obligation, but not allow him to compete for promotion.  

The applicant states that his prior request to this Board did not reflect a true picture of his case, and information was submitted to the Board that was not pertinent to the case.

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

The applicant enlisted in the Army Reserve Delayed Entry Program (DEP) on    12 September 1974.  He was discharged from the DEP upon his enlistment in the Regular Army for three years on 23 September 1974.  He has had continuous active service since his enlistment.

The applicant’s date of rank as a MSG is 1 March 1992.  His basic active service date (BASD) is 23 September 1974.

An academic evaluation report shows that the applicant graduated from the SMA on 20 May 1997.

The 22 July 1998 Memorandum of Consideration which denied the applicant’s request for promotion to SGM and submission of his records for standby advisory board consideration is attached.

In a 2 July 1998 letter, the Total Army Personnel Command (PERSCOM) informed the applicant that his request for an exception to policy to be considered by the September 1998 SGM promotion selection board could not be approved.  The PERSCOM stated that the objective to establish a date of rank and a BASD zone was to consider a specific group of soldiers from the entire force.  The required dates and other eligibility criteria announced by the board zone message had to be met.  No exceptions were authorized.
A 1 December 1998 DA message changed the RCP for MSG from 24 years of active federal service to 26 years of active federal service effective                      1 January 1999.  That message stated, in effect, that soldiers affected by the change with an approved retirement and who wanted their retirement withdrawn must so request.  It also stated that the change was not retroactive and did not affect the zones of consideration for the CY98 CSM/SGM/USASMC selection board that met in October 1998.  The zones of consideration outlined in a previous message remained in effect; and provided otherwise eligible, those MSG excluded from the CY98 selection board zone of consideration due to BASD would be in the zone of consideration for the CY99 selection board.

On 12 February 1999, the PERSCOM Inspector General responded to the applicant’s allegation that he had been improperly denied an exception to policy to compete for promotion to SGM during the CY 98 promotion selection board in violation of Army Regulation 600-8-19, stating that his allegation was not substantiated.  That official stated that, while exceptions were granted for MSG who were in attendance at the SMA while the selection board was in session, allowing consideration for the current board and the board following their graduation from the course, there were no exceptions granted for soldiers not falling within that specific parameter.  He informed the applicant that he had been fully eligible for consideration while in attendance at the SMA in 1996, and was considered by both the 1996 and 1997 promotion boards, but not selected.  He was afforded the same promotion opportunities as his peers, and was not unfairly treated when his request for an exception to policy was denied.    

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the PERSCOM.  The PERSCOM stated that the applicant had been considered, but not selected, for promotion by the 1994, 1995, 1996, and 1997 selection boards.  In November 1995 the Deputy Chief of Staff for Personnel implemented a 12 month exclusion for promotion consideration for soldiers approaching their RCP for the current rank, and as a result of this action, the applicant did not meet the CY 1998 SGM board zone of consideration.  In December 1998, DA announced an RCP adjustment from 24 to 26 years of service for MSG, effective 1 January 1999; however, the adjustment was not retroactively applied to the zones of consideration for the CY 1998 SGM board.  The applicant’s new RCP was adjusted to September 2000.  However, he did not meet the eligibility criteria for the CY 1999 SGM board.     

The applicant submitted a rebuttal to the advisory opinion (COPY ATTACHED) on 2 February 2000.  

•	He stated that there was mismanagement and gross negligence by those personnel handling the 1995 SGM promotion board, and because he complained, he has been systematically retaliated against and denied promotion.
•	During the 1994 promotion board proceedings he was selected as an alternate to the SMA which meant that if another promotion was allocated it would have come from the alternate list by MOS; that he was qualified for promotion; and that soldiers selected as alternates, by law, are selected for promotion, the next year.
•	The applicant retells the story of the soldier, his peer, who, although ineligible to compete for promotion because of his impending retirement, was selected, unfairly denying him (the applicant) the promotion.  He stated that DA should have promoted him.  He implies prejudice on the part of two CSM, who were members of the 1995 board and the 1997 board.
•	The applicant protested his non selection for promotion by the 1996 board, stating that while he was in the primary zone for promotion, a soldier in the secondary zone was selected for promotion.  And that DA policy requires that a soldier in the secondary zone could not be selected for promotion when there are qualified soldiers in the primary zone.  He also stated that there was no black males on the medical panel of the 1996 board.
•	He stated that he was again non selected by the 1997 board, even though he had graduated from the SMA, and although one dental NCO was appointed to CSM, none were selected for promotion to SGM.  He stated that the promotion board members have the authority to ask the board president to over promote, that the Army allows all MOS to have extra SGM, and that soldiers were promoted in overage MOS, and medical command soldiers were promoted in other than their primary MOS.  He was the only medical command soldier to graduate from his SMA class who was not promoted.  With the one dental SGM being appointed to CSM, that was another reason to open up a position.  
•	The decision by PERSCOM not to allow him to complete for promotion by the 1998 and 1999 boards due to the new RCP rules was unfair and unjust.  He stated that he missed the eligibility requirements by 8 days in 1998 and by less than 30 days in 1999.  The program discriminates against soldiers with less than 12 months remaining in the service. 
•	The applicant stated that before he graduated from the SMA in June 1997, there was no one year time remaining in the Army eligibility requirement for promotion, and there was no such requirement after his graduation.  He provided various reasons why the RCP program was unfair.  He stated that it was known that upon graduation from the SMA he would incur a service obligation beyond the 24 year mark.  He stated that the Army has allowed medical corps CSM to retaliate against him and corrupt the board process.  He should have been allowed to compete for promotion in 1998 along with academy students who had been given an exception to policy. Soldiers junior to him were selected for promotion.  NCOs, including himself, could not compete for promotion because of the 12 month limitation, and were not allowed a relook.  The Army gave an exception to policy to academy students in 1998 and 1999, but not to graduates of the academy.
Army Regulation 600-8-19 provides policies and procedures for the promotion of enlisted personnel.  Chapter 4 of that regulation provides the rules of managing promotion to SGM, and states in pertinent part that criteria for primary and secondary zones of consideration for each grade will be announced by HQDA before each board.  Selections by DA boards will be based on impartial consideration of all eligible soldiers in the announced zone.  Selections will be made by MOS.  

That chapter continues by saying that boards will select the best qualified in each MOS for promotion.  They will recommend a specified number of soldiers by MOS from zones of consideration who are the best qualified to meet the needs of the Army.  The total number selected in each MOS is the projected number the Army needs to maintain its authorized-by-grade strength at any given time.

The president of each board will be a general officer.  Female and minority ethnic groups will be represented.  The selection board 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.  Soldiers who are not selected for promotion will not be provided specific reasons for nonselection.  Board members may not record their reasons nor give reason for selection or nonselection.  

Information obtained from the PERSCOM enlisted promotions branch revealed that the zone of consideration for promotion to SGM for the CY98 selection board included all 1SG/MSG whose basic active service date (BASD) were between    29 September 1975 and 29 September 1988.

Paragraph 4b of the memorandum of instruction for the CY99 CSM/SGM selection board states that the board would be organized into 11 separate panels by career management field (CMF).  Consideration for promotion would be by MOS.  The best qualified NCOs in each MOS would be recommended for appointment to CSM and for promotion selection to SGM in accordance with the needs of the Army.  The zone of consideration for promotion to SGM included all 1SG/MSG whose BASD are between 1 October 1974 and 19 October 1989 (both dates inclusive).

Guidance provided for the CY99 CSM/SGM selection board indicated that the DA Secretariat would provide SGM select objectives by MOS after all records have been voted.  It would indicate the number of selections to SGM which could be made from each MOS.  Those numbers could be adjusted to compensate for CSM selections made from the serving SGM population.  That guidance went on to say that the board could request approval to increase the secondary zone consideration; however, the board had to assure itself that soldiers included in their request for adjustment of the objective were truly outstanding and clearly superior to those who would otherwise be promoted from the primary zone.  It continued by saying that in order to provide some promotion opportunity to NCOs in MOS which had a zero select objective, the board would identify the top five percent of the 1SG/MSG in their MOS and refer any NCO with significant experience in a secondary, additional, or duty MOS for promotion consideration in that MOS.  

A 30 December 1999 PERSCOM memorandum provided the CY99 CSM/SGM/USASMC selection list.  Paragraph 10 of that memorandum stated in effect that commanders would ensure that USASMC alternate selectees understood that activation and subsequent completion of the USASMC incurred an automatic 24 month service remaining obligation upon graduation.  That paragraph also stated that soldiers would be activated to attend the USASMC from the alternate list based solely on the needs of the Army.  There was no guarantee that any alternate selectee would attend the USASMC.  USASMC alternates were selected to provide qualified master sergeants with high promotion potential for activation to ensure USASMC training seats are utilized for the August 2000 class. 

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(s), it is concluded:

1.  The applicant’s contention that he was unfairly and unjustly denied promotion by the 1995 SGM selection board has no basis in fact.  The 22 July 1998 Memorandum of Consideration, which denied his request for promotion to SGM and/or his request for submission of his records to standby advisory board consideration under the 1995 and 1996 promotion board criteria, adequately addressed his contention that his records had contained a material error, and denied his request.  There is no evidence, nor has the applicant submitted any in his current application, that he had been denied promotion because of mismanagement or gross negligence, or because of retaliation by anyone. 

2.  There is nothing to support his contention that soldiers selected as alternates to the SMA, are selected for promotion the year after their selection, either by law or by regulation.  The applicant’s statements that soldiers selected for attendance at the SMA would be promoted prior to attending, while a student, or by the first selection board after graduation; and that soldiers in the secondary zone for promotion could not be selected over anyone in the primary zone, are not factual. Whereas selection for attendance at, and graduation from, the SMA, is an excellent indication of promotion potential, there is no guarantee of promotion.  Both the regulation that prescribes the policies and procedures for promotion and the memorandums of instruction for selection boards emphasize that consideration for promotion would be by MOS, and that the best qualified NCOs in each MOS would be recommended for promotion selection in accordance with the needs of the Army.  Those publications make no mention of attendance at, or graduation from the SMA, as an assurance for promotion.
  
3.  There is no DA policy, as the applicant suggests, that states that a soldier in the secondary zone could not be selected for promotion when there were qualified soldiers in the primary zone.  Nor is there any instructions, information, guidance, or directives, that state that promotion board members have the authority to ask the board president to over promote.  There is no information, nor does it matter if there was, that indicates that the Army allows all MOS to have extra SGM.  

4.  The applicant’s BASD is 23 September 1974.  The zone of consideration for promotion to SGM for the CY98 selection board included MSG whose BASD were between 29 September 1975 and 29 September 1988.  The applicant was not eligible for consideration for promotion.

5.  The applicant’s RCP was extended in January 1999 from 24 years to            26 years as he states, as were all soldiers with the rank of MSG.  This policy change was not made retroactive and the zone of consideration for the CY98 selection board did not change.  Consequently, he was not eligible for consideration.  This Board recognizes that an exception was made for those soldiers currently in attendance at the SMA, allowing them consideration for promotion by the CY98 board and the board following their graduation from the course; however, this was a management decision, to allow those soldiers who were approaching their RCP, and who would have a 2 year obligation after their graduation, to compete for promotion.  The applicant was not singled out.  He had the same opportunity for promotion, having been considered by the 1995, 1996, and 1997 selection boards. 

6.  The zone of consideration for selection by the CY99 SGM board included those MSG whose BASD was between 1 October 1974 and 19 October 1989.  Again, the applicant was not eligible for consideration.

7.  The Board recognizes the applicant’s contributions to the Army and to this country as evidenced by the documents he has submitted to support his request. Those documents show that he is an outstanding NCO, who has held responsible positions and who performed his duties admirably.  Nonetheless, these are not reason to promote him, or to grant him standby consideration, as he wishes.  He has provided no evidence or wrongdoing on anyone’s part, nor of any error in his record, or of an injustice done him, despite his numerous contentions. 

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

9.  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 the aforementioned requirement.

10.  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

___klw___  ___tap__  ___eb___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031238	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.01	
2.	131.10	
3.		
4.		
5.		
6.