PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 June 1999         
	DOCKET NUMBER:   AC92-09472A
                                              AR1998000700

	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	
	Mr.  Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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, reconsideration of his request to show that he was on a standing promotion list to the rank of sergeant effective April 1991, reinstatement in the Army from 9 July 1991, and promotion to the rank of sergeant, pay grade E-5, effective July or August 1991. 

3.  The applicant states, in essence, that he appeared before a promotion selection board in his unit for promotion consideration to the rank of sergeant on or about 1-4 April 1991, that he passed the board with 200 points, but the board results were not available when he returned with his unit from Saudi Arabia to Germany.  He was then discharged from the Army due to reaching his retention control point (RCP), which was 8 years service for personnel in pay grade E-4.  He cites a policy message (Desert Storm Policy Message 57-copy enclosed with his application) which allowed service members to remain on active duty to arrange their personnel until 30 September 1991 upon lifting of a “stop loss” order in connection with Operations Desert Shield/Desert Sword.  If he was promoted to pay grade E-5, he would have been permitted to remain on active duty until he completed 13 years service, and he should have been promoted to the rank of staff sergeant, pay grade E-6 during this period.  He would be willing to pay back the $16,000 he received in separation pay over a reasonable period of time.  He submits statements from five other soldiers, copies of promotion computation and supporting documents which were used in connection with his promotion consideration to pay grade E-5 and a November 1988 Report of Promotion Board Proceedings when he was considered for promotion to pay grade E-6 in November 1988.  He believes that he would have attained at least 820 promotion points for promotion to pay grade E-5.  This would have made him eligible for promotion to pay grade E-5 during July or August 1991 (he submits a copy of the promotion cutoff score for July 1991).  He also submits a copy of this Board’s prior decision in his case, dated 25 January 1995.  

4.  The applicant’s military records show that he had 3 years and 6 months prior honorable active service from May 1976 to November 1979.  He enlisted in the Regular Army on 2 March 1983, in pay grade E-3, for 4 years.  His basic active service date (BASD) was therefore adjusted to 2 September 1979. His military occupational specialty (MOS) was MOS 63H (Track Vehicle Repairer.  He was advanced to pay grade E-4 on 1 February 1984, and to pay grade E-5 on 
5 September 1986. On 27 January 1987, the applicant reenlisted, in pay grade 
E-5 for 4 years.  His new expiration of term of service (ETS) would have been on 26 January 1991.  He graduated from a Primary Leadership Development Course (PLDC) in June 1987.  He was assigned to Germany on 24 April 1988.  On 14 November 1988, he attained promotion list status to pay grade E-6, with 
725 promotion points.  

5.  On 4 May 1990, the applicant was reduced from pay grade E-5 to pay grade 
E-4.  The reason and/or authority for the reduction are not shown in his records, but he admits that it was the result of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  His pay records were not properly changed and he was paid at the E-5 level until June 1991.

6.  He was assigned to duties in Saudi Arabia in connection with Operations Desert Shield/Desert Storm on 15 December 1990.  In connection with announced Departmental policy, the applicant’s ETS was changed to 21 June 1991.  

7.  The applicant claims that he appeared before a unit E-5 promotion board in Saudi Arabia sometime between 1-4 April 1991.  When he returned to Germany, and the board proceedings were not available, his commander would not reconstruct the promotion packet.  Accordingly, he was not permitted to extend his enlistment or reenlist because he had reached his RCP (8 years of service in pay grade E-4).  He was honorably discharged on 8 July 1991, in pay grade E-4, under the provisions of Chapter 4, Army Regulation 635-200, by reason of completion of required service.  He was credited with 8 years, 4 months and 
7 days (he was held 185 days beyond his ETS for the convenience of the Government).  His assigned reentry eligibility (RE) code was RE-3C, which denoted that a waiver was required for reenlistment.  He also had 3 years and 
6 months prior service, for a total of 11 years, 10 months and 7 days active service.  His records contain no evidence of separation pay being authorized or paid, but the Board presumes that the applicant’s statement concerning 
$16,000 separation pay is correct.  

8.  His personnel records available to the Board in 1995 did not contain a copy of the promotion board proceedings.  Accordingly, this Board, on 25 January 1995, denied that portion of his original application pertaining to promotion to pay grade E-5 and reinstatement on active duty.  It did grant relief on pay problems he encountered while on active duty, but which were not connected with this action. 

9.  The applicant’s military records have again been made available to the Board and now contain a copy of several promotion board proceedings, to include promotion board proceedings for an E-5 promotion board which was held on 
12 April 1991, while his unit was stationed in Saudi Arabia.  He received 
200 promotion points from the Board, a total of 741 promotion points and the battalion commander (the promotion authority) approved the board proceedings on 13 April 1991.  

10.  In June 1991, the Department of the Army announced the promotion cutoff scores for July 1991.  In MOS 63H, pay grade E-5, the promotion cutoff score was 676 promotion points.  For August 1991 it was 998 promotion points and for September 1991 it was 675 promotion points.

11.  Army Regulation 601-280, at chapter 2, then in effect, provided the qualifications for immediate reenlistments.  Paragraph 2-22, provided, in pertinent part, that a soldier must not exceed the RCP by more than 29 days before the expiration of their contracted period of service.  For the rank of specialist, pay grade E-4, the RCP is 8 years of total active service, for pay grade
E-5 it is 13 years total active service.  The policy, then in effect, stated that soldiers on a standing promotion list to a higher grade would be considered under the higher grade criteria.  Therefore, retention beyond 29 days after reaching the RCP was not authorized and no rank waivers were allowed.  

12.  Army Regulation 600-200, at chapter 7, Section III, then in effect, provided, in pertinent part, the requirements and procedures for promotion of soldiers to pay grades E-5 and E-6.  Promotion is a command prerogative.  The soldier must first be recommended by his or her commander for promotion.  The commander could award up to 200 promotion points.  Soldiers are also given promotion point credit for various levels of military and civilian education, military awards and decorations, physical fitness and marksmanship testing and skill qualification testing.  Test results and educational qualifications had to be well documented in the military records.  Finally, the soldier appeared before a local promotion selection board, usually composed of senior noncommissioned officers (NCO’s). These latter boards could award up to 200 promotion boards.  At the time, the maximum score a soldier could receive was 1000 points.  

13.  Once the promotion board proceedings were approved (usually the battalion commander), the soldier’s name and promotion point score would be integrated onto a unit standing promotion list.  The soldier then would be eligible for promotion 3 months after the promotion board results were approved.  Monthly, the Department of Army would announce promotion cutoff scores, by grade and MOS.  If the soldier met or exceeded the promotion cutoff score, he or she would be promoted to the next higher rank.  

14.  Paragraph 7-29 (a) (11), of the same regulation provided that a soldier’s name would be removed from a standing promotion list if reduced in rank after placement on a promotion list to a higher rank.  

15.  In 1989 and 1992, additional military educational requirements were instituted which a soldier had to meet before being promoted.  In order for a soldier to be promoted to pay grade E-5, he or she had to be a graduate of a PLDC.  This was effective 1 October 1989.  Effective 1 October 1992, in order for a soldier to be promoted to pay grade E-6, he or she had to be a graduate of a Basic Noncommissioned Officer Course (BNCOC).  Certain waivers were granted during Operation Desert Shield/Storm, which are not applicable to this case.  Currently, soldier’s may be promoted once they meet or exceed an announced Departmental promotion cutoff score effective on the day following graduation from the PLDC or BNCOC courses.  The promotion was not to be retroactive.  

16,  The Board has been informally notified in past cases involving restoration of soldiers to active duty who have received severance or separation pay that recoupment of that pay is normally required.  The final determination in  such cases rests with the Defense Finance and Accounting Service.

CONCLUSIONS:

1.  The evidence of record and information provided by the applicant provides sufficient evidence to show that the applicant had promotion list standing to pay grade E-5, in MOS 63H in April 1991.  He would have been eligible for promotion action effective 1 July 1991, provided he met or exceed a Department of the Army announced promotion cutoff score for his grade and MOS.

2.  Since he had been awarded 741 promotion points by the April 1991 unit promotion board, which were approved by the promotion authority, and the Department of the Army announced promotion cutoff score for July 1991 for his grade and MOS was 667 promotion points, he should have been promoted effective 1 July 1991, with a date of rank from that date.  

3.  Further, since he had promotion list status to pay grade E-5 after 1 April 1991, he should have been authorized to continue his active service until reaching his 13th year of service (RCP for pay grade E-5) under the provisions of paragraph 
2-22, Army Regulation 601-280.

4.  Accordingly, his separation from active duty on 8 July 1991 is invalid and should be voided.

5.  In cases where the Board determines the existence of error or injustice, it attempts, as far as practicable, to craft the appropriate relief to correct the harm.  

6.  Under normal circumstances the applicant would have been permitted to reenlist until he reached his 13th year of service.  However, as of 8 July 1991, the applicant had 11 years, 10 months and 7 days total active service.  Therefore, unless he attained promotion list status to pay grade E-6, he would have only been permitted to serve for 1 year and 2 months more on active duty from 8 July 1991 until September 1992.  Based on his BASD of 2 September 1979, he then would have 13 years and some days, but less than 29 days active service.  

7.  Since the minimum period of reenlistment is 2 years, the applicant’s 4-year enlistment contract of 27 January 1987 should be extended for a period of 
1 year and 8 months (20 months), as an exception to policy.  This would cover his 185 day involuntary extension for Operations Desert Shield/Desert Storm and the period of service until he reached his RCP of 13 years total active service.  His new established ETS would then have been 26 September 1992.  

8.  It would not be appropriate for the Board to direct that the applicant be promoted to the rank of staff sergeant.  The applicant had no promotion list standing to that rank after his reduction from pay grade E-5 to pay grade E-4 in May 1990.  Further, the Board is not in a position to determine if the applicant would have been fully qualified for promotion to the rank of staff sergeant and to have met the appropriate Department of the Army announced MOS cutoff score. 

9.  Therefore, the applicant’s records should be corrected to show that he served in pay grade E-5 from 1 July 1991 until his discharge from active duty, with entitlement to all back pay and allowances from his date of promotion to the rank of sergeant.  

10.  Further, he should be separated from active duty on 26 September 1992, by reason of ETS, under the provisions of Chapter 4, Army Regulation 635-200 (the same regulation under which he was separated in 1991) with the appropriate amount of severance/separation pay to which he would be otherwise entitled.  His separation program designator (SPD) would be JBK.  

11.  The Board notes that the applicant may be entitled to further service in the Reserve components.  He is encouraged to contact a Reserve component counselor of his choice to determine his eligibility for further service.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

a.  that the 4-year enlistment contract of the individual concerned, dated 27 January 1987, was extended on 14 December 1990 for a period of 20 months for the purpose of completing an oversea tour and service remaining requirements, as an exception to policy;

b.  that his ETS was adjusted from 26 January 1991 to 26 September 1992;
c.  that he was promoted to the rank of sergeant, pay grade E-5, MOS 63H effective 1 July 1991, with a date of rank from that date;

d.  that his honorable discharge on 8 July 1991, is void and without force or effect;

e.  that he continued to serve in Germany from 8 July 1991 until his return from Germany on 25 September 1992 for separation from active duty; 

f.  that he was honorably discharged from active duty on 26 September 1992, in pay grade E-5, under the provisions of Chapter 4, Army Regulation 
635-200, by reason of expiration of term of service (SPD: JBK), with an RE code of RE-3; and 

g.  that he be issued new separation documents, to include a new DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 256, Honorable Discharge Certificate, in lieu of the ones currently held by him dated 8 July 1991.   

2.  That so much of the application as is in excess of the foregoing be denied.

3.  That upon completion of the administrative correction to his records, that his case be referred to the Defense Finance and Accounting Service for recomputation and payment of any separation pay, as well as all back pay and allowances to which he is entitled.  

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC92-09472A/AR1998000700	
SUFFIX		
RECON	19950125	
DATE BOARDED	19990616	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19910708	
DISCHARGE AUTHORITY	AR635-200, C4	
DISCHARGE REASON	A03.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.00	
2.	113.00	
3.	128.00	
4.	129.00	
5.		
6.