PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:            26 August 1999    
	DOCKET NUMBER:   AR1998012154

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to reflect that he was promoted to pay grade E-6 effective 8 August 1997.  He states he met the promotion point cut-off score for promotion to pay grade E-6 in May 1997 but was unable to reenlist or extend to meet the 12 month service remaining requirement to accept the promotion because he was pending a MOS/Medical Retention Board (MMRB).  He notes, in effect, because of confusion surrounding his reenlistment eligibility following completion of his MMRB in August 1997 he was not allowed to reenlist until January 1998 and hence was not promoted until 27 January 1998.  In support of his request he submits statements from his unit commander and reenlistment NCO.

3.  Information available to the Board indicates the applicant entered active duty in September 1987 and was promoted to pay grade E-5 in February 1991.  By October 1995 he had accumulated 754 promotion points towards promotion to pay grade E-6 in specialty 31R (Tactical Satellite Systems Operator).

4.  At some point, although it is unclear exactly when, the applicant was issued a permanent physical profile for chronic left knee pain.  As a result of the permanent physical profile the applicant was notified on 4 March 1997 that he would be required to appear before a MMRB to determine if he should be retained in his primary specialty reclassified to a more suitable specialty or referred for disability processing.

5.  The MMRB, an administrative screening board, is part of the Physical Performance Evaluation System (PPES) designed to evaluate soldiers with permanent medical conditions or impairments to determine if they can perform satisfactorily in the primary specialty in a world wide field environment.  Army Regulation 600-60, which establishes the policies and procedures for the PPES notes the system ensures continuity of effort among commanders, doctors, personnel managers, and the physical disability system.  On completion of the administrative evaluation, the MMRB may recommend that a soldier be retained in his primary specialty, reclassified to another specialty, referred to the Army’s physical disability system, or placed in a probationary status.

6.  On 10 April 1997 Department of the Army announced the promotion point cut-off scores for promotions, which were to be effective on 1 May 1997.  The applicant exceeded the cut-off score for specialty 31R (752) by 2 points.  However, he was precluded from accepting the promotion because he was unable to extend or reenlist to meet the 12-month service remaining requirement for promotion to E-6.  At the time the applicant was notified of his pending MMRB his scheduled separation date (ETS) was 27 March 1997.  As provided for by regulation, he was allowed to extend in 90-day increments until completion of the MMRB process.

7.  The applicant appeared before the MMRB on 18 April 1997.  The MMRB concluded the applicant was unable to perform duties in his primary specialty because of his medical condition but would be able to perform satisfactorily in another, less strenuous specialty.  The MMRB recommended the applicant be reclassified.  An undated memorandum, signed by the commanding general, V Corps, approved the findings and recommendation of the MMRB.  In spite of the fact that the approval memorandum is not date, the applicant’s unit commander indicated in a statement submitted in support of the applicant’s request that the MMRB results were approved on 8 August 1997 and the applicant was provided a copy of the results on 22 August 1997.

8.  The unit commander goes on to say in his statement that the applicant immediately sought assistance to reenlist but through a series of mis-information from both his reenlistment NCO and servicing personnel office he was not allowed to reenlist until 22 January 1998.  On 22 January 1998 the applicant reenlisted for a period of 2 years thus establishing his ETS date as 21 January 2000.  As a result of the reenlistment he was promoted to pay grade E-6 on 
27 January 1998 with an effective date of 22 January 1998.

9.  As a matter of information, in October 1997 the applicant’s command did request authority to promote the applicant to pay grade E-6 retroactive to 1 May 1997 (the original date the applicant would have been promoted had he been able to extend or reenlist at that time to meet the service remaining requirements) as an exception to policy.  However, the Management Support Division at the Total Army Personnel Command denied his request because he was “ineligible to reenlist or extend for medical reason.”  The denial indicated that once the applicant “obtains reenlistment eligibility” he should be granted a “reasonable period” to reenlist or extend to accept the promotion.

10.  Army Regulation 601-280, which establishes the policies and procedure for the reenlistment and extension of enlisted soldiers states that soldiers who have been found qualified for retention as a result of the PPES will not be denied reenlistment.  Army Regulation 600-60 states that a soldier may not reenlist while pending a MMRB but once a final determination is made by the MMRB they will not be denied reenlistment solely because of MMRB processing.

11.  In the processing of this application an advisory opinion was provided by the Promotion Branch of the Total Army Personnel Center.  The opinion recommended that the applicant’s promotion to pay grade E-6 be rescinded noting that when the MMRB process was initiated in March 1997 he entered a nonpromotable status.  The opinion states the applicant has not regained “PMOS eligibility” because he still holds his original 31R specialty and has not yet been reclassified to another specialty as directed by the MMRB.

12.  Army Regulation 600-8-19, which establishes the policies and procedures for the promotion of enlisted personnel states that soldiers who are ineligible for reenlistment, fail to reenlist or extend their current enlistment to meet the service remaining obligation for promotion, or who have been determined by a Physical Evaluation Board to no longer be qualified for continued active service, are considered to be in a non-promotable status.

CONCLUSIONS:

1.  The evidence confirms the applicant entered a “non-promotable” status on 
4 March 1997 when he was notified that he would be required to appear before a MMRB under the PPES because of his permanent physical profile.

2.  Contrary to the contentions of the Army’s Promotion Branch the Board concludes that the evidence indicates the applicant regained “promotable” status when the recommendation of the MMRB was approved by the commanding general, V Corp, on 7 August 1997.  At that time the applicant obtained the “reenlistment eligibility” noted in the October 1997 memorandum from the Management Support Division at PERSCOM.  The Board notes that the regulatory guidance associated with the PPES, reenlistment, and promotion all indicate that once a final determination has been made by the MMRB the individual can no longer be denied reenlistment based solely on the MMRB processing.  Neither his reenlistment eligibility nor ability to be promoted is contingent upon completion of the reclassification action.  There is no indication in any of those regulations that the reclassification action must be finalized before the soldier is allowed to reenlist.

3.  As such the Board contends that the applicant could have reenlisted on 
7 August 1997, when the recommendation of the MMRB was approved and upon reenlisting would have met the requirements for promotion to pay grade E-6, notwithstanding the conclusions of the advisory opinion.

4.  While the Board believes it would be in the interest of justice to correct the applicant’s record to reflect that he was promoted to pay grade E-6 on 7 August 1997 the Board also believes that amending the date of his reenlistment to coincide with the retroactive promotion date may not be in the best interest of the soldier.  Amending his reenlistment date to show that he also reenlisted for a period of 2 years on 7 August 1997 would mean that his adjusted ETS date would have already occurred.  As such the Board concludes that it would be appropriate for the Board to correct his effective date of promotion but allow the original reenlistment date to remain in effect, changing only that portion of his reenlistment contract to show he reenlisted in pay grade E-6 vice E-5.  The Board recognizes that by correcting the effective date of promotion but not correcting the reenlistment date that the applicant would, in effect, not have the required 12 months of service remaining on the 7 August 1997 promotion effective date and as such the retroactive promotion would essentially be as an exception to policy.  Under the circumstances, however, the Board contends that such an action would be in the best interest of the applicant and the Army.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by showing that the individual concerned was promoted to pay grade E-6 effective 7 August 1997, as an exception to policy but in the interest of justice;

b.  by providing him with appropriate pay and allowances associated with the retroactive promotion; and

c.  by showing that he reenlisted on 22 January 1998 in pay grade E-6 vice E-5.

BOARD VOTE:  

__slp___  ___sc___  ___bje____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012154	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990826	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 131.00		
2.		
3.		
4.		
5.		
6.