IN THE CASE OF: BOARD DATE: 27 April 2020 DOCKET NUMBER: AR20200000116 APPLICANT REQUESTS: promotion to the rank/grade of sergeant first class (SFC)/E-7, effective date 1 December 2015. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Statement, dated 25 October 2019 * Memorandum, SUBJECT: 88th Regional Support Command (RSC), September 2015 Automated SFC Promotion Board Announcement with enclosures * Promotion Eligibility Checklist, dated 26 June 2015 * DA Form 2A (Personnel Qualification Record), dated 8 August 2015 * Automated Record Brief, dated 8 June 2015 * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report), for the period covering 1 June 2014 to 31 May 2015 * Extract of Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) * Certificate of Training -- Structured Self-Development (SSD) Level 3, dated 9 June 2014 * Diploma--Warrior Leader Course (WLC), dated 18 May 2011 * Email from 88th RCS Human Resources Personnel * Memorandum, SUBJECT: Appointment of SFC Promotion Board Members, dated 17 August 2015 * Document, Senior Enlisted Selection Board Members 11-17 September 2015 * Memorandum, SUBJECT: 88th RSC Senior Enlisted Promotion Board, 11-17 September 2015, After Action Review (AAR), dated 17 September 2015 * 88th RSC September 2015 SFC Promotion Board Considered List * 88th RSC September 2015 SFC Promotion Board Recommended List (Corrected Copy) * Memorandum, 88th RSC Standby Advisory Board (STAB) Report, dated 22 October 2015 * Memorandum, Board Report for the 88th RSC STAB, 16 September 2015, dated 16 October 2015 * Senior Enlisted STAB Selection Board Members, dated 16 September 2015 * 88th RSC September 2015 STAB Considered List * 88th RSC September 2015 STAB Recommended List * Electronic DA Form 1559 (Inspector General (IG) Action Request), dated 5 April 2016 * Letter from IG, dated 29 August 2016 * DA Form 1559, dated 4 April 2016 * Email from 9th Mission Support Command (MSC) IG * Memorandum, SUBJECT: Request for STAB, dated 11 April 2016 * DA Form 4187 (Personnel Action), dated 9 April 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She was unjustly prevented from being considered for the SFC Board of 2015 due to her age and the 88th RSC improperly and unfairly interpreting the application instructions for the Board. During various subsequent message traffic, she was told that she was too old to be considered for the board, even though the board application instructions clearly delineated that she was within the appropriate age for consideration. She also requests expediting of this request as her mandatory retirement is 5 January 2020. b. In 2015, she received the board announcement for the 2015 SFC Promotion Board. She was fully qualified and submitted my promotion board packet within all timelines. The regulation in effect during the board stated that a staff sergeant (SSG) needs 36 months’ time in grade (TIG) for promotion to SFC, have 6 years minimum time in service (TIS), and has completed Non-Commissioned Officer Education System (NCOES) requirements of Warrior Leader Course (WLC), and SSD level 3. At the time of consideration she met all of the requirements having served 48 months TIG as an SSG, completed WLC, and completed SSD level 3. No other NCOES completion was required for promotion consideration (for example the Senior Leaders Course was not a requirement until after the 2015 board). c. The regulation states Soldiers under the age of 57 with NCOES completed for the next higher rank prior to convening date of board are eligible for consideration. She was 56 years old at the time and had completed all required NCOES and was therefore fully eligible for the board. d. Even though she was fully qualified for promotion and submitted my promotion board packet, in a timely manner, the 88th RSC informed her after the board concluded, that the 88th RSC did not consider her for promotion. In various communications regarding this injustice with the 88th RSC, they told me that her that she was not qualified first due to age (which was clearly incorrect), then later because of non- completion of NCOES (again clearly incorrect), and finally when they ran out of invalid reasons, told her that there were disqualifying factors for everyone not considered. The results were released on 1 November 2015 at which time she found out that she was not considered by the board for promotion. Her name did not appear in the published board results of those Soldiers considered by the board. e. The board AAR was provided to her as a general reason for why she was not considered, though none of those reasons applied to her. This AAR indicated that <26% of Soldiers in the zone of consideration were not considered due to disqualifying factors. The number one issue was failure to complete SSD level 3, which she completed in 2014, well before the board convened. The responses from the 88th RSC were a clear way to deny her consideration for the board and a way to mask the non- consideration due to age, even though she was clearly eligible across all requirements including age. f. She appealed the non-consideration to her Command's IG, who concluded that the 88th RSC had unjustly and incorrectly denied her consideration for the 2015 Board. She was then told to, and submitted, her promotion board packet to a STAB. However, at the STAB, rather than using the same consideration standards as the original 2015 SFC Board which promoted four 42A (Human Resource Specialist) (her military occupation specialty (MOS) SSGs to SFCs, the STAB used different standards altogether and unjustly did not recommend her for promotion. The 88th RSC's unjust removal of her packet from the original 2015 SFC Board was not remedied at the STAB. It was in fact a pattern of further discrimination based on arbitrary standards rather than those prescribed by the Army Regulations (ARs) and HRC’s application instructions themselves. g. Following this second unjust disqualification in 2018, she immediately appealed the issue through my chain of command and IG at the 9th MSC. The IG conducted a due process review of the original IG complaint and stated that she was in fact unjustly disqualified from the 2015 SFC Board and they would not pursue the case further as they were not the right mechanism to do so. h. Through the remainder of 2018 and 2019, she continued to diligently pursue justice through every administrative avenue in my chain of command. She has now exhausted all administrative avenues and is appealing to the Army Review Boards Agency directly to remedy this injustice to her and her career. 3. The applicant provides her: a. Memorandum, SUBJECT: 88th Regional Support Command (RSC), September 2015 Automated SFC Promotion Board Announcement with enclosures. For promotion eligibility, the memorandum references enclosure 2 (Eligibility Criteria) which stated in: (1) Block i (NCOES) – Soldier must meet the NCOES requirements of AR 600-8-19, paragraph 1-28 (NCOES Requirements for Promotion and Conditional Promotion). All SSG must complete all phases of Advance Leader Course (ALC) and SSD level 3 before attaining eligibility for promotion consideration to SFC. There are no military education waivers to attain eligibility for promotion consideration or pin-on. (2) Block m (Age) – Soldiers who have reached age 55 without NCOES completion for the next higher rank or age 57 with NCOES completed for the next higher rank prior to convening date of board are ineligible for consideration. b. Promotion Eligibility Checklist, dated 26 June 2015, showing her completion of the document before the promotion board suspense date and she was 56 years old at the time of the promotion board. c. DA Form 2A, dated 8 August 2015 and Automated Record Brief, dated 8 June 2015, showing her date of birth as X May and her highest completed military education as ALC. d. DA Form 2166-8, for the period covering 1 June 2014 to 31 May 2015 part IVb (Competence) showing she completed SSD level 3. e. Extract of AR 600-8-19, dated 2 February 2015, in effect at the time of the promotion board, shows paragraph 1-28 (NCOES Requirements for Promotion and Conditional Promotion), subparagraph a(4) all SSGs (all components) must completed Structured SSD level 3 before attaining eligibility for promotion consideration to sergeant first class (SFC). f. Certificate of Training for SSD level 3, dated 9 June 2014, showing her successful completion. g. Diploma for C, dated 18 May 2011, showing her successfully completion of the course. h. Email from 88th RCS Human Resources personnel, stating “the Soldier can only be 55 without the next level NCOES. BLUF – The only course of action was that they somehow get her to the Senior Leader Course prior to the February board. That is the only way she could be considered per his guidance. At this point, due to age, she was ineligible for consideration.” i. Memorandum, SUBJECT: Appointment of SFC Promotion Board Members, dated 17 August 2015 and Senior Enlisted Selection Board Members 11-17 September 2015 which identify the promotion board members. j. Memorandum, SUBJECT: 88th RSC Senior Enlisted Promotion Board, 11-17 September 2015, AAR, dated 17 September 2015, showing the number one failure for promotion recommendation was failure to complete SSD level 3. l. 88th RSC September 2015 SFC Promotion Board Considered List and 88th RSC September 2015 SFC Promotion Board Recommended List (Corrected Copy), showing those Soldiers who were considered and recommended for promotion under the 2015 SFC Promotion Board. m. Memorandum, 88th RSC Standby Advisory Board (STAB) Report, dated 22 October 2015, stating the decision regarding the results of the board that convened on 16 September 2015 was approved. n. Memorandum, Board Report for the 88th RSC STAB, 16 September 2015, dated 16 October 2015, with the referenced Senior Enlisted STAB Selection Board Members, dated 16 September 2015, 88th RSC September 2015 STAB Considered List and 88th RSC September 2015 STAB Recommended List. The standards used by the STAB are not available for the Board to review. o. Electronic DA Form 1559, dated 5 April 2016, was filed with the 9th MSC and stated, “Per U.S. Army Reserve Command (USARC) G-1, it was determined that due to the current overall strength of SFCs in the Army Reserve, some Soldiers were added in over strength military occupational specialties if they met a pre-determined score. The two Soldiers that were recommended scored higher than the applicant. If the applicant has scored higher than either of those individuals, she would have been recommended.” Her case was closed. The IG issued a letter to the applicant, dated 29 August 2016 with the same information. p. Email from 9th MSC IG, dated 11 January 2018, stating, “based on our conversation on 7 January 2018, personnel from IG conducted a due-process review of her IG complaint, dated 4 April 2016, regarding your promotion board process to SFC/E7. After careful review of the IG case file, supporting documents, and review of AR 600-8-19, all matters presented in the complaint were properly addressed and answered. Furthermore, USARC G-1 previously reviewed the issues regarding her complaint and reconsideration and providing to her resulting in a 2016 STAB in accordance with AR 600-8-19. The results of the STAB was that she was considered, but not recommended. Furthermore, as she was previously made aware, two 42A Soldiers from the 9th MSC were recommended because they met a pre-determined score and had more points than her. All supporting evidence shows that regulatory guidance was followed.” q. Memorandum, SUBJECT: Request for STAB, dated 11 April 2016, showing she requested a STAB as she was fully eligible for consideration for the August 2015 SFC Promotion Board, but was not considered. r. DA Form 4187 (Personnel Action), dated 9 April 2016, sent to USARC G-1, wherein she requested a STAB. 4. Review of the applicant’s service records show: a. She was born on X XXX 19XX. b. She served in the U.S. Marine Corps from 14 September 1977 to 9 November 1984, completing 7 years, 1 month, and 26 days of active duty. c. She enlisted in the U.S. Army Reserve (USAR) on 13 November 2006. She held MOS 42A. She reenlisted in the USAR on 20 May 2012 and 17 July 2018, for 8 months d. She was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 August 2011. e. She completed the following courses on: * 18 May 2011 – WLC and was issued a diploma upon course completion * 9 June 2012 – ALC Phase I and II and was issued a diploma upon course completion * 9 June 2014 –SSD level 3 and was issued a certificate of training f. She reached age 56 on X XXX and age 57 on X XXX . g. She entered active duty on 16 October 2017. She was honorably released from On 28 September 2018 and was transferred to a Reserve unit. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 11 months and 13 days of active service. h. She entered active duty on 3 March 2019. She was honorably released from active duty, in pay grade E-6, on 5 September 2019. She was transferred to a Reserve unit. Her DD Form 214 shows she completed 5 months and 25 days of active service. i. Orders Number C02-0901027, issued by HRC on 13 February 2020, announced her placement on the Retired List, in the rank of SSG, effective 3 January 2020. 5. By regulation, Soldiers who reach age 55 without NCOES completion for the next higher rank for age 57 with NCOES completed for the next higher rank prior to convening date of board are ineligible for consideration. 6. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The evidence of records shows the applicant she was fully eligible for consideration for the August 2015 SFC Promotion Board, but was not considered. She requested a STAB and HRC confirmed she was considered by not recommended and all supporting evidence showed that regulatory guidance was followed. 2. The Board agreed the request for relief had insufficient evidence of an error or injustice which indicated she was promoted to SFC prior to her retirement or post- retirement by the STAB; therefore, the Board recommended denying the applicant’s requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX: :XXX 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 for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. It provides the objectives of the Army’s Enlisted Promotions System, which including filling authorized enlisted spaces with the best qualified Soldiers. a. Paragraph 1-28 (Noncommissioned Officer Education System (NCOES) Requirements for Promotion and Conditional Promotion) states the following: (1) Subparagraph a(3) all sergeants (all components) must be graduates of the Warrior Leader Course (WLC) and Structured Self-Development (SSD) level 2 before attaining eligibility for recommendation to staff sergeant (SSG). (2) Subparagraph a(4) all SSGs (all components) must completed Structured SSD level 3 before attaining eligibility for promotion consideration to sergeant first class (SFC). (3) Subparagraph a(5) states all SFCs (all components) must complete SSD level 4 before attaining eligibility for promotion consideration to master sergeant. b. Paragraph 5-7 (Eligibility Criteria for Selection Board Consideration) states the following: (1) Subparagraph j (Time in Grade Requirement), which is nonwaivable, for selection to SFC, the Soldier must have 36 months as a SSG (2) Subparagraph k (Time in Service Requirement), for selection to SFC, a Soldier must have 6 years time in service. (3) Subparagraph m (Age) that Soldiers who reach age 55 without NCOES completion for the next higher rank for age 57 with NCOES completed for the next higher rank prior to convening date of board are ineligible for consideration. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000116 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1