BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002520 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002520 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002520 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests consideration for promotion to sergeant first class (SFC)/E-7. 2. The applicant states he completed all required Noncommissioned Officer Education System (NCOES) courses and served beyond the required time for recommendation for promotion. He was overlooked for promotion to E-7 seven times. He served over 21 years and he was medically retired even though he did not want to be. He spent the last 3 years at the Warrior Transition Unit, Walter Reed Military Medical Center, Bethesda, MD, and then at Fort Belvoir, VA. He was being treated for the injuries he received while deployed to Afghanistan. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having had prior service (2 July 1993 to 12 September 2000), the applicant enlisted in the Regular Army on 13 July 2001 in the rank/grade of sergeant/E-5. He held military occupational specialty 92G (Food Service Specialist). 3. He served through multiple reenlistments, in a variety of stateside and overseas assignments, including Afghanistan from 16 March to 21 November 2011, and he was promoted to the rank of staff sergeant (SSG)/E-6 on 1 January 2006. 4. He retired on 28 August 2014 and was placed on the temporary disability retired list (TDRL) in his retired rank/grade of SSG/E-6 on 29 August 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 13 years, 1 month, and 16 days of active duty during this period. 5. An advisory opinion was received from the U.S. Army Human Resources Command (HRC) on 17 April 2017 in the processing of this case. An advisory official stated the applicant's request for reconsideration for promotion to SFC due to being overlooked for promotable status seven times has been researched and reviewed. The HRC Promotions Branch has determined the applicant's application is unwarranted. A review of his board records indicate he was considered by the following Headquarters, Department of the Army (DA) Centralized Active Component Sergeant First Class Promotion Boards held in Fiscal Year (FY) 2008, FY 2009, FY 2010, FY 2011, FY 2012, FY 2013, and FY 2014. He was not overlooked on any of the boards; he was considered and was not selected on the listed promotion boards. 6. The applicant responded to the advisory opinion and stated he believes his application is warranted and should be considered for change. He may have been looked at for promotion to E-7 from FY 2008 - FY 2014, but during FY 2011, he was deployed to Afghanistan out in the mountains. He was injured during his deployment and he was medically evacuated back to the United States. During FY 2012 - FY 2014, he was in the hospital, at Walter Reed National Military Medical Center or at the Fort Belvoir Warrior Transition Unit. He was not able to update any of his information or DA photograph due to medical stipulations. The medication he was on and the surgeries he went through prevented him from doing so. For the several times that he was considered but not selected, he was never given any reasons for non-selected. How can one fix a problem if one doesn't know what to fix? He asks that the decision be changed and that he be selected and promoted to SFC. REFERENCES: Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 4-13 states in sub-paragraph: a. The Army G-1 or designee may approve cases for referral to a Standby Advisory Board (STAB) consideration upon determining that a material error existed in a Soldier’s official records when the file was reviewed by a selection board. b. For the purpose of this paragraph, HRC is a designee. c. An administrative error is immaterial, if the Soldier, in exercising reasonable diligence, could have discovered and corrected the error. d. STABs are convened to consider records of those: * otherwise eligible Soldiers whose records were not reviewed by a centralized selection board * Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board * recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list * selected for appointment to command sergeant major or attendance to the Sergeants Major Course for the purpose of promotion to SGM but were referred by the Senior Enlisted Review Board due to derogatory information during the post-board screening process e. Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their sequence number is reached. f. Reconsideration normally will be granted when one or more of the following conditions existed on the Soldier’s official records and was reviewed by a selection board: An adverse NCO Evaluation Report or Academic Evaluation Report reviewed by a board was subsequently declared invalid in whole or in part and was determined by the Army Review Boards Agency to constitute a material error; an adverse document belonging to another Soldier is filed on the official record; Article 15, administered on or after 1 September 1979 that was designated for filing in the local file only, but was erroneously filed on the official records reviewed by the board, and several other conditions. g. Conditions that do not constitute material error and will not be reasons for reconsideration include omission of letters of appreciation, commendation, congratulations, or other similar commendatory correspondence; documents that are not derogatory having been filed on the wrong official record; absence of documents (such as transcripts) written, prepared, or computed following the convening of a board; incorrect data on the Enlisted Record Brief (ERB); failure to review promotion board files by the considered Soldier; absence of the ERB; absence of official photograph or the presence of an outdated photograph; and several other conditions. DISCUSSION: The applicant was promoted to the rank of SSG/E-6 on 1 January 2006. He was considered for promotion to the rank of SFC/E-7 by multiple promotion boards from FY 2008 to FY 2014, but he was not selected. Selection boards are composed of senior officers and NCOs of demonstrated judgment who are not allowed to divulge the reasons for selection or non-selection. These members evaluate the Soldier's official record and select a number of NCOs for promotion within established selection constraints. The Secretary of the Army in his Memorandum of Instruction establishes limits on the number of NCOs to be selected. a. The selection process is an extremely competitive process based on the "whole Soldier" concept. It is an unavoidable fact that some NCOs considered for promotion will not be selected. It is unfortunate that the applicant was not selected for promotion to SFC despite being considered multiple times; however, it is a well-known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more Soldier’s eligible than there are promotion allocations. Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time. b. It is a well-known fact that promotion boards do not reveal the basis for selection or non-selection. Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those promotion boards that did not select the applicant it must be presumed that what each board did was correct. Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any NCO, specific reasons for the promotion board's recommendations are not known. c. 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. Failing to review promotion board files by the considered Soldier and/or the absence of official photograph or the presence of an outdated photograph is not considered a material error. d. A non-selected NCO can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion. The applicant was simply not selected for promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002520 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002520 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2