IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220003561 APPLICANT REQUESTS: in effect - * promotion to master sergeant (MSG)/E-8 * Standby Advisory Board (STAB) consideration * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 12 February 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (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. He was eligible for promotion the last two years of his military service. He learned that his command (Central Command) never submitted a promotion packet to the Department of the Army for disposition. He asked them about it when he personally called Department of the Army in Washington. They told him to apply for a special standby promotion board. The command did not submit that packet either. b. He was assigned to the U.S. military mission in Saudi Arabia from June to December 1999. When he arrived in country one of his first tasks was to inventory equipment that he would sign for. He observed that none of the serial numbers matched. He reported the observation to his boss, Lieutenant Colonel (LTC) - and he ordered him to sign the inventory anyway. He refused and reported the incident to the Inspector General (IG) at Easkan Village in Saudi Arabia. An investigation was launched, and impropriety was uncovered and several high ranking officers were reprimanded or forced to retire early. c. When he returned to the states he was removed from his job as communications security manager (no reason stated) and made to sit at a desk doing virtually nothing for the last 18 months of his career. He was harassed daily as the command tried on numerous attempts to create a problem that they could get him for. When he finally retired the harassment did not stop. His financial records were altered so he did not get his last clothing allowance. At present, he still gets harassed at the Department of Veterans Affairs (VA). He does not know if he would have been promoted to MSG/E-8 but he should have had an opportunity. d. He was a whistleblower at the highest level. The military mission he was assigned to was a complete success. However, he has been made a scapegoat for the malfeasance of others; the ones who should have been an example instead of a contrite less lawbreaker. He could have turned a blind eye to corruption, but he did not, and it has cost him countless opportunities and career advancement. He humbly submits that if this case is not reviewed that it would be an even more egregious error. Please review his records and everything he has alleged. If the Board finds nothing, okay. However, it is 1000-percent true that if the Board honestly looks at his "Cfile" and promotion fiche it will see what it needs to make a decision. 3. A review of the applicant's official records shows the following: a. On 25 November 1981, the applicant enlisted in the Regular Army. b. Orders Number 1-27 published by the U.S. Total Army Personnel Command, Alexandria, Virginia, promoted the applicant to the rank/grade of sergeant first class (SFC)/E-7, effective on with a date of rank of 1 November 1994. c. DA Form 2-1 (Personnel Qualification Record (PQR)) shows in item 27 (Remarks) a copy of the PQR was forwarded to Department of the Army for the MSG/SFC/Qualitative Management Program (QMP) Selection Board on 30 November 2000. d. Enlisted Record Brief dated 30 November 2000 showing his data in areas of qualification, security, assignment, overseas, awards/decorations, military/civilian education, personal/family, aptitude area and tests. e. DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period from November 2000 to February 2001 showing the applicant received a change of rater NCOER and was rated fully capable and successful by his rater/senior. It also shows the applicant was unavailable for signature. f. On 30 November 2001, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was retired from active duty by reason of "sufficient service for retirement." He completed 20 years and 6 days of net active service. Item 4a (Grade, Rate, or Rank) shows SFC and item 12h (Effective Date of Pay Grade) shows 1 November 1994. 4. On 14 September 2022, U.S. Army Inspector General Agency, Washington DC, responded to the Army Review Boards Agency's (ARBA) request for an unredacted copy of all IG records pertaining to the applicant for use by the ABCMR to process the applicant's application for a correction of his record. The Department of the Army IG Agency searched the Army IG database and the IG Action Request System and did not locate any records responsive to ARBA's request. 5. On 5 October 2022, the U.S. Army Human Resources Command (HRC), Chief, Enlisted Promotions Branch determined administrative relief is not warranted and unsubstantiated. The advisory official stated: a. The applicant's assertion that he was not boarded his last two years of active service cannot be validated. The documentation presented to the ABCMR includes the documents (Personnel Qualification Record (PQR)-DA Forms 2A/Enlisted Record Brief (ERB)/2-1) required to send to the board and annotated as such on page four of the PQR that a copy was forwarded to the Department of the Army for the MSG and SFC/QMP Selection Board. Also, according to Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), Headquarters Department of the Army (HQDA) produces and maintains those Soldiers who are eligible for a board and those Soldiers are boarded with or without any updated inputs from the Soldier. b. There is also nothing derogatory in the applicant's last four NCOER's indicating any malice towards him as he was rated fully capable and successful by his rater/senior rater from August 1999 through February 2001. c. The applicant offers no evidence of error, injustice, or lack of due process. Therefore, his request for administrative relief has not been substantiated he should not be entitled to any of the actions he requested. 6. On 6 October 2022, the ARBA, Case Management Division, provided the applicant with a copy of the advisory opinion for comment or rebuttal. 7. On 6, 17, and 25 October 2022, the applicant responded to the advisory opinion via email and stated, in pertinent part, Human Resources stated that he was boarded, and provided a single transmitted page to assert the promotion package was forwarded. It should be easy to provide copies of the packet to include pictures of "me time stamped attached to the board for review." Anyone can send a one-page fax without documents. Again, for the record, he called Department of Defense to confirm if his "packet" was there. He was informed it was not and his fiche confirms this. It would seem odd if they [HRC] can produce this as none of this is in his official "fiche." The applicant also asked multiple questions contained in the emails that will be provided to the Board in its entirety within the supporting documents. BOARD DISCUSSION: 1. After reviewing the application, supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, and U.S. Army Human Resources Command (HRC), Chief, Enlisted Promotions Branch, the Board concurred with the advisory official finding HQDA produces and maintains those Soldiers who are eligible for a board and those Soldiers are boarded with or without any updated inputs from the Soldier. The Board recognized, the applicant's assertion that he was not boarded his last two years of active service cannot be validated. However, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s rank and/or STAB consideration. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the 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. 2. AR 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 600-8-19 (Enlisted Promotions and Reductions) in effect at the time, prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 4 provides the rules and steps for managing the Centralized Promotion System to SFC, MSG, and SGM. Commander, Personnel Command, promotes Soldiers to the grades of SFC, MSG, and SGM. In pertinent part, the regulation states: a. The selection board will recommend a specified number of Soldiers by military occupational specialty (MOS) from the zones of consideration who are the best qualified to meet the needs of the Army. The total number selected for each Career Progression Military Occupational Specialty (CPMOS) is the projected number the Army needs to maintain its authorized-by-grade strength. Soldiers who are not selected for promotion will not be provided specific reasons for non-selection. Soldiers may consult the statistical analysis portion of the promotion list or they may write to the Career Professional Development NCO of their respective branch for an analysis on how to enhance their careers. b. Soldiers eligible for consideration may write to the president of the promotion board to provide documents and information drawing attention to any matter concerning themselves that they feel is important to their consideration. Although written communication is authorized, it is only encouraged when there is something that is not provided in the Soldier's records that the Soldier feels will have an impact on the board's deliberations. Correspondence must be received by the date stated in the zone message, will not be the basis for promotion reconsideration, and will not be included in the Soldier's official military personnel file (OMPF). Receipt of correspondence will not be acknowledged. c. The following documents will not be given to the board, therefore, should not be forwarded to USAEREC. (1) Correspondence received from anyone other than the Soldier concerned. (2) Correspondence that criticizes or reflects on the character, conduct, or motives of any other Soldier. (3) Incomplete appeals such as NCOER, AER, courts-martial, Article 15, etc. (4) Copies of NCOER. Only originals processed through Personnel Service Battalion/Military Personnel Division that have been received and processed by EREC will be seen by the board. d. Memorandums (including all enclosures) seen by a selection board become a matter of record for that board and will not be filed in the OMPF. Non-receipt of a memorandums by the board president does not constitute a ground for reconsideration by a Standby Advisory Board. e. Paragraph 4-6 (Board results) states, in pertinent part, PERSCOM will announce the results of a selection board by command memorandum. The memorandum will include considered/selected list. Names of Soldiers considered for promotion will be placed in alphabetical order. Soldiers who are recommended will be assigned sequence numbers for promotion to SFC, MSG and SGM. f. Paragraph 4-7 (Monthly promotions) provides, in pertinent part, PERSCOM will publish orders announcing promotions to SFC, MSG, and SGM. g. Paragraph 4–10 (Rules for pre-board processing for NCOs in zone of consideration) provides that: (1) Soldier must meet announced eligibility requirements for promotion board consideration. (2) Soldier will review and sign Personnel Qualification Record (PQR), which includes an ERB/DA Forms 2A, and 2–1, for submission to board. For Soldiers serviced by SIDPERS III the Enlisted Records Brief (ERB) will replace the DA Form 2A. (3) OMPF should be reviewed by Soldier 3 to 6 months prior to board. Documents submitted for correction or additions to OMPF should be submitted through Personnel Service Battalion (records work center)) to CDR, USAEREC, Indianapolis, IN 46249–5301. h. Paragraph 4-12 (Rules for processing promotion list results and orders) states, in pertinent part, commanders will notify Soldiers of selection or non-selection for promotion. The considered portion of the promotion selection list will be screened to ensure all eligible soldiers were considered. Monthly PERSCOM enlisted promotion orders must be screened to ensure promotable Soldiers designated by sequence number memorandum were promoted. i. Paragraph 4–14 (Rules for processing Standby Advisory Board consideration) provides that: (1) The Deputy Chief of Staff for Personnel (DCSPER) or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board. (2) For the purpose of this paragraph, PERSCOM is a designee. (3) Error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected. (4) STABs are convened to consider records of those – (a) From the primary and secondary zones not reviewed by a regular board. (b) From a primary zone that were not properly constituted, due to a material error, when reviewed by the regular board. (c) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list. (5) Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their seniority sequence number is reached. (6) 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. (7) 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 under (b) through (f) below normally will be granted reconsideration only for the most recent board held prior to the Soldier's request. (a) Adverse NCOER or Academic Evaluation Report (AER) reviewed by a board was subsequently declared invalid in whole or in part and was determined by the ESRB to constitute a material error. (b) An adverse document belonging to another Soldier is filed on the OMPF. (c) An Article 15 administered on or after 1 September 1979 that was designated for file in the MPRJ only but was erroneously filed on the OMPF reviewed by the board. (d) An Article 15 punishment that was wholly set aside before 1 September 1979 and the set aside instrument was not filed on the OMPF. (e) An Article 15 punishment that was wholly set aside on or after 1 September 1979 was filed on the OMPF when reviewed by the board. (f) Court-martial orders were filed on the OMPF when the findings were "not guilty." (g) A document was filed on the OMPF that erroneously identified the non- select as AWOL or a deserter. (h) Transcript awarding a degree (for example: AA, BA, BS) was excluded from the records. If the degree was posted to either the OMPF, PQR, or was seen in hard copy by the board, a STAB is not authorized. Only college degrees that are awarded by an accredited college or university (shown on official transcript dated prior to the convening date of the board) will be considered. The date of the transcript will not be older than 3 months before the convening date of the board. (i) Absence of an award of a Meritorious Service Medal or higher (initial award only). If the award was recorded on the OMPF, PQR, or was reviewed in hard copy by the board, a STAB is not authorized. The date used for determination of reconsideration will be the date of the order or the ending date, whichever is later, and will not be older than 3 months before the convening date of the board. (j) An annual or change of rater NCOER that was received at USAEREC early enough for processing and filing before the convening date of the promotion selection board that was not reviewed. 75-days is allowed for processing after the through date of the report or the date the PSB completes Part I, Section 1, for late reports. NCOERs received at EREC prior to convening date of the board and was returned to the PSB for administrative reasons may be a basis for reconsideration. The NCOER must be for a period of not less than 6 months. (k) An individual was considered in an MOS or CPMOS that is not the Soldier's normal career progression. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003561 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1