ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20160013761 APPLICANT REQUESTS: to be promoted to the rank of Sergeant Major (E9/ SGM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Self-Authored Letter from Applicant x 2 • DA Form 2166-8(NCO Evaluation Report/ NCOER) x 4 • Recruiting and Retention School diploma, dated 18 March 1983 • Advanced Noncommissioned Officer Course diploma, dated 18 October 1988 • Florida Metropolitan University Associate Degree, dated 22 October 1998 • Roffler Technical Institute Certificate of Achievement, dated 8 May 1993 • Security Clearance Email, dated 25 July 2016 • Letter to Board with HRC Vacancy in OK for SGM 13Z position as of July 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130009718 on 4 February 2014. 2. Applicant states: a. He was not promoted to SGM due to prejudicial error of the promotion board prior to his retirement date. He reports the prejudice was based on the best qualified doctrine, and he can show through another individual's records, he was more qualified. He held the SGM position that was an open promotion vacancy during the board. He has NCOERs for outstanding duty performance in 4 different Military Occupational Specialties (MOS) prior to the board, with local recommendations to promote to SGM. He believed initially the service failed to process his security clearance in a timely manner to include, stating by word of mouth, failed to produce a copy of an updated security clearance to the Board of correction. The promotion board’s decision not to promote the applicant was prejudicial because he was selected for the SGM position, he was the only qualified person for that position in the entire Reserves at that time and the position for promotion was held by the applicant and was opened for promotion, and he was not selected for promotion. b. All of his evaluations recommended the applicant for the SGM position he held. Looking at the enclosed NCOERs, there is no one who held more positions and excelled in them as the applicant. c. No records support that the applicant’s security clearance was updated. TheSF-312 was not even completed at the time of the promotion board. d. Enclosed are NCOERs from four distinctly different Army Commands or organizations showing that the applicant was one of the most versatile NCOs in the Army and excelled in every position he held. He supported the Army in every way until his health dwindled. He always ranked among the best that the Army had to offer. e. He enclosed a copy of his retirement orders showing at the time of retirement he held the position of Sergeant Major, and he was selected by that command for this vacant position. He would have continued until age 60 if it wasn't for his dwindling health. The applicant is 60% disabled veteran, forced to leave his job at the U.S. Postal service as well as the Reserve eventually in the year of 2011 on disability retirement. f. He was never provided with knowledge that his security clearance was completed until the signing of his SF312 (Classified Information Nondisclosure Agreement). He has researched and tried to retrieve a copy of his SF86 security clearance and/or questionnaire and was told, as soon as he retired all his records concerning security clearance was closed and archived. The problem with this is he does not recall the questionnaire or completing forms this extensive. If the Board can locate this, he states to please afford him a copy and he will only use the pretense of prejudice under the best qualified scenario. 3. A self- authored letter requesting a reconsideration of appeal shows: • he would have continued his service had he not sustained multiple injuries while serving on both active duty and reserve duty that led to him requesting a retirement before his time • the applicant went from line to line on the last Board findings to rebut what he found to be errors and it has taken years to gather all the proper information for his reconsideration • he offers all DD form 214s, NGB Form 22 and retirement orders of his service in the: o regular Army from 5 August 1976 to 24 July 1992 o Individual Ready Reserve (IRR) from 24 July 1992 to 14 August 1992 o Army National Guard from 14 August 1992 to 13 August 1998 o Army Reserve from 13 August 1998 to 8 November 2006 o Active duty dates: 14 May 2001 – 31 August 2001 and 20 May 2002 – 20 August 2002 • regarding previous case, Docket Number AR20140019274, the applicant did not offer information stating he was selected for promotion • he reports he should have been considered without errors, using the whole person concept for competitive promotions • he reports when he sent the SF312, the entire form was present; when he was given the form to sign, he was told his security clearance was granted • the advisory opinion from HRC verifies that the applicant had a security clearance for the period in question; however, the applicant provided emails stating his records were archived since 8 November 2006, and they could not be verified • applicant believes something went very wrong regarding the promotion board’s consideration which prejudiced his chance to be promoted • using the whole person concept, he should have been promoted in the vacant position that he held as an Operations Sergeant Major at Fort Sill Oklahoma, a position that was sought to be filled by a qualified 13Z; the applicant believed he was the only qualified 13Z at the time, and he accepted the unofficial promotion to the next grade, serving admirably • the applicant's medical restraints forced him to retire • the Army's basis for non-select, although not released, the decision was prejudice • in determining the applicant's overall record as a 13Z, there was no one to be compared with at the time and would not offer much of a challenge concerning the whole person concept • concerning his contemporaries in his secondary MOS 88Z, he was most highly competitive and should have been offered a promotion in that zone also • he served in 4 capacities prior to the board convening, 13Z, 88Z, 95B and 88N, no matter what position, he excelled in them all • he does not believe any NCO at the time possessed the resume he did • he reports an individual he personally knows who had 4 article 15s in his records, and he had nothing derogatory in his file ever for his entire 30 years • based on the Army Promotion system on performance, merit and potential, his superiors all indicted he was amongst the best the Army had to offer, and it is unfortunate that he was prejudice during his promotion process 4. In support of how he should have been promoted, the applicant further provides: • NCOERs from 2003-2006 that show his competitive record and how he was rated among the best, how his rater said he could best serve the Army as a SGM, and how his senior rater said to promote him to SGM. He held duty title Operations Sergeant Major in 2006. • U.S. Army Institute of Personnel and Resource Management Recruiting and Retention School diploma declaring the applicant a graduate of the Army Recruiting Course, dated 18 March 1983 • Field Artillery Cannon Advanced Noncommissioned Officer Course diploma, dated 18 October 1988 • Florida Metropolitan University Associate Degree in Computer Information Science, dated 22 October 1998 • Roffler Technical Institute Certificate of Achievement for Valedictorian, dated 8 May 1993 • Security Clearance Email dated 25 July 2016 where the Security Assistant states he could not pull his security information since his clearance record was archived • Letter to the Board with HRC printout of a SGM 13Z vacancy in OK. He states he offers the following information to further support that there was only one person qualified (the applicant), and he should have been promoted for this position. Here it is more than 10 years later, and there is a vacancy for this position based upon no qualified personnel. If his health was not depleted, he would probably still have served in this position until age 55- IMA position UIC W34T01, Fort Sill Oklahoma, E9 MOS/AOC, I3Z, Operation Sergeant Major 5. A review of the applicant's records show: • 5 August 1976 - enlisted in Regular Army • 24 July 1992 - honorably separated from Regular Army • 26 October 1998 - enlisted in Army Reserve (USAR) • 31 August 2000 - received Notification of Eligibility for Retired Pay at Age 60 • 1 January 2003 - promoted to Master Sergeant (MSG/E8) • 29 April 2004 - reenlisted in the USAR • 8 November 2006 - Human Resource Command (HRC) transferred applicant to Retired Reserve at MSG rank • 23 October 2013 - Army Board for Correction of Military Records (ABCMR) received advisory opinion from HRC stating the applicant did have a proper security clearance to meet the criteria for promotion eligibility 6. The applicant's records contain a previous ABCMR case for a request for promotion to SGM and evidence the service failed to process his security clearance in a timely manner which made him non-competitive or qualified for promotion to SGM with his peers. The Board denied his request because the applicant failed to show, by clear and convincing evidence, that his non-selection for promotion was a result of material error, inaccuracy, injustice, and/or even inequity. 7. AR 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel. • Paragraph 4-14 states the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s Official Military Personnel File (OMPF) when the file was reviewed by a promotion board. Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected • STABs are convened to consider records of those: o from the primary and secondary zones not reviewed by a regular board o from a primary zone that were not properly constituted, due to a material error, when reviewed by the regular board • Only Soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion. Soldiers who were considered in a secondary zone will not be reconsidered 8. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. • Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. • the ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The previous ABCMR decision notified the applicant it cannot be fully determined why he was not selected for promotion by a promotion selection board (PSB). This Board considered his application to see if there was an error or injustice which may have prevented him from being considered by the PSB, and if that was the outcome, the Board would recommend his record is forwarded to a special selection board for consideration; the Board would not promote him. With that being said, his contention that he should have been selected for promotion when his record is compared against the record of other Soldiers does not have merit. He was considered for promotion and not selected for promotion appropriately. PSB’s set promotion goals, performance and potential standards when formed. Soldiers considered for promotion, selected and not selected, do not receive specific information on the PSB’s decision. Soldiers are encouraged to review proponent packets and PSB’s after action reviews to make themselves compatible for promotion. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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 to amend the decision of the ABCMR set forth in Docket Number AR20130009718 on 4 February 2014. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel. a. Paragraph 4-14 states the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s Official Military Personnel File (OMPF) when the file was reviewed by a promotion ABCMR Record of Proceedings (cont) board. Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected. b. STABs are convened to consider records of those: • from the primary and secondary zones not reviewed by a regular board • from a primary zone that were not properly constituted, due to a material error, when reviewed by the regular board c. Only Soldiers who were not selected from a primary zone of consideration will be reconsidered for promotion. Soldiers who were considered in a secondary zone will not be reconsidered. d. Reconsideration normally will be granted when one or more of the following conditions existed on the Soldier’s OMPF at the time it was reviewed by a promotion selection board. Soldiers requesting reconsideration normally will be granted reconsideration only for the most recent board held prior to the Soldier’s request. • an adverse NCOER reviewed by a board was subsequently declared invalid in whole or in part • an adverse document belonging to another Soldier is filed in the OMPF e. Chapter 6 prescribes policy and procedures for the promotion of IRR, IMA, or Standby Reserve (active status list) Soldiers. It states the promotion of Soldiers assigned to the IRR is limited to private two through SFC. To be considered for promotion to staff sergeant through sergeant major (SGM), a Soldier must meet the following eligibility criteria requirements listed below as of the convening date of the board. • Soldier must be assigned to the IRR • HRC, St. Louis, MO must confirm the Soldier’s home or mailing address • Soldier must have been assigned to the IRR for a minimum of one year as of the date announced in Headquarters Department of the Army (HQDA) message • Soldier must be in a promotable status • Satisfactory participant (non-waivable) • If issued a 20-Year Letter, must have earned a minimum of 50 retirement points as a member of the IRR • Physical examination per AR 40-501 (Standards of Medical Fitness) within the last 5 years and a passing Army Physical Fitness Test within the last 18 months (non-waivable) for promotion to SFC through SGM, Soldiers who have reached age 55 without noncommissioned officer educational system for the next higher grade are ineligible for consideration ABCMR Record of Proceedings (cont) 2. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NTOHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013761 ABCMR Record of Proceedings (cont) AR20160013761 1 6 1 AR20160013761 AR20160013761 1 7 AR20160013761 1