PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 July 1999                   
	DOCKET NUMBER:   AR1998012457

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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 that she be promoted to Sergeant, E-5 retroactive to July 1995 with back pay.

3.  The applicant states that her promotion packet was approved on 19 May 1995.  Due to an error, her name was not placed on the July 1995 Promotion List.  Her paperwork had been lost.  In September 1995, her unit underwent a force structure change.  In October 1995, she requested that her packet go before another promotion board.  In February 1996, she was told that her earlier paperwork had been located but the slot she would have been promoted to in July 1995 had been eliminated due to the force structure change and she would not be promoted.  In March 1996, she was told that her promotion had been approved in July 1995 and that she should have been on the July 1995 Promotion List.  In April 1996, she was told she would get her promotion with back pay.  In June 1996, she was told she would not get her promotion.  Supporting documentation is as listed on the DD Form 149.

4.  The applicant’s military records show that she enlisted in the U. S. Army Reserve on 25 November 1992.  

5.  A U. S. Army Reserve Promotion Point Worksheet was prepared on 12 March 1995.  Her records were considered by a promotion board on 14 May 1995 and she was granted 530 promotion points, in primary military occupational specialty (MOS) 91Q.  Of the two 91Qs on the recommended promotion list, she had the higher number of points.  On 19 May 1995, the promotion authority approved the promotion board proceedings.  

6.  The applicant was promoted to Sergeant, E-5 on 25 July 1998.

7.  Army Regulation 140-158 prescribes policies and procedures pertaining to the promotion of enlisted soldiers of the U. S. Army Reserve.  In pertinent part, it states that, to be promoted to Sergeant or Staff Sergeant, a soldier must be in a promotable status, listed on a valid permanent promotion recommended list, and in the proper sequence order when promoted off the list.  To accomplish a promotion, the unit will report a current or projected vacancy requirement to the authority responsible for the permanent recommended list and the authority will identify the soldier on the list that will be promoted into the vacancy and notify the promotion authority.  The promotion authority will publish the promotion orders, the effective date of promotion to be the date of the assignment to the vacancy.  Selection off of the permanent recommended list must be by highest number of points with the required MOS.

8.  In the processing of this case, an advisory opinion was obtained from the      Headquarters, U. S. Army Reserve Command (HQUSARC).  HQUSARC initially addressed the applicant’s promotion in July 1998.  In a clarification, HQUSARC 
noted that she had been boarded and recommended for promotion in (May) 1995.  There was no information to show that she had been in a nonpromotable status.  Although there were no documents available to indicate whether there was an actual vacancy in her MOS (91Q) in her unit prior to its reorganization, she had been deliberate and earnest since 1995 to resolve her promotion issue.  HQUSARC recommended that she be granted the relief she requests with a date of rank and effective date of July 1995.

9.  A copy of the advisory opinion was provided to the applicant for comment.  The applicant responded, concurring with all the facts contained in the advisory opinion.

CONCLUSIONS:

1.  The Board concludes that a Government error and injustice occurred in this case.

2.  The evidence shows that the applicant was recommended for promotion to Sergeant, E-5 in May 1995 with the highest number of promotion points in MOS 91Q.  While there is no evidence to show there was an actual vacancy in her MOS (91Q) in her unit prior to its reorganization, the advisory opinion noted that she had been deliberate and earnest and had used the chain of command since 1995 to resolve the problem.  It noted that her name was omitted from the Promotion List in 1995 due to an administrative error and that her effective date and date of rank (to Sergeant, E-5) should reflect July 1995.

3.  The regulation states the effective date of promotion will be the date of the assignment to the vacancy.  There is no evidence or opinion given as to what date in July 1995 the applicant would have been assigned to the vacancy.  However, any doubt should be resolved in favor of the applicant and the effective date should reflect 1 July 1995.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the applicant was promoted to Sergeant, E-5 on 1 July 1995, with a date of rank and effective date of 1 July 1995, and that she be paid all back pay and allowances due as a result of this correction.

BOARD VOTE:  

__cmf___  __tkn___  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Calvin M. Fowler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012457	
SUFFIX		
RECON		
DATE BOARDED	1998012457	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		

5.		
6.