MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         3 February 1999                     
	DOCKET NUMBER:   AC97-09900A
				   AR1999015790

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, the applicant requests retroactive promotion to Staff Sergeant E-6; award of a secondary MOS, 71L20F5, administrative specialist/unit postal clerk, or attendance at the administrative specialist course if he cannot be awarded that MOS without attending the course; and award of the Army Commendation Medal and the Joint Service Achievement Medal.  He also requests that he not be required to pay back the $7,352.64 in severance pay that he received when he was discharged from the Army on 10 September 1996.  

APPLICANT STATES:  The applicant’s statements are included with his application and require no further amplification.

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which show that he was found not guilty before a summary court-martial, that he had been penalized for exercising his right to have his guilt proved in a court of law, and that he had been unjustly denied reenlistment.  On 18 March 1998 this Board directed that the applicant  be reenlisted in pay grade E-5 for 6 years provided that he was otherwise eligible, that he be given full pay and allowances in pay grade E-5 from 11 September 1996 to the date that he is reinstated on active duty, that the severance pay that he received be deducted from the amount of money that he is given in back pay, that he be given a choice of his first assignment, consistent with the needs of the Army, and that the period from 11 September 1996 to the date of his reinstatement be considered nonrated and an appropriate remark be entered in his record.

The applicant was promoted to Sergeant E-5 in MOS 95B20 (military police)  on 1 February 1996.

The applicant’s records contain no evidence of duty in MOS 7L20F5, nor has he submitted evidence that he served in that MOS.

The applicant’s records contain no evidence that he was awarded either the Army Commendation Medal or the Joint Service Achievement Medal, nor any evidence that he was recommended for those awards.  Nor has the applicant provided to this Board any evidence regarding these awards. 

Army Regulation 600-8-19 prescribes the enlisted promotions function of the military personnel system.  Chapter 3 of that regulation provides for semi-centralized promotions to the rank of Sergeant and Staff Sergeant.  This system requires a recommendation for promotion by the soldier’s commander, appearance before, and consideration and recommendation by, a promotion board, and attainment of a minimum number of promotion points prior to being added to a recommended list for promotion.  Promotion is then contingent upon the soldier meeting or exceeding a promotion cutoff score announced monthly by DA.  Additionally, soldiers are required to be graduates of the basic NCO course (BNCOC) prior to promotion to Staff Sergeant. 
Army Regulation 600-200 provides for classification and reclassification in a military occupational specialty.  Paragraph 2-2 of that regulation states that classification and reclassification authorities will insure that soldiers have qualified in the MOS before award and that they classify, reclassify, and assign personnel.  Paragraph 2-20 states that the secondary MOS (SMOS) provides alternate specialties for assignment when soldiers cannot be utilized in their PMOS or CPMOS (career progression MOS).  Commands with reclassification approval authority will award SMOS only when it has been determined that the soldier is qualified for the requested MOS per Army Regulation 611-201 and other pertinent regulations.

Military pay charts for 1996 show that a Sergeant E-5 with over 8 years of service earns a monthly basic pay of $1531.80; for 1997, $1577.70; and for 1998, $1621.80. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant’s contention that he should be reinstated in the Army as a Staff Sergeant, pay grade E-6, presupposes that had he not been discharged, he would have attended and completed BNCOC, been recommended for promotion by his commander, and recommended by a promotion board, attained the necessary minimum points and be added to a recommended list for promotion, and met or exceeded a DA cutoff score.  This is purely speculative, has no basis in fact, and the injustice done him by not allowing him to reenlist, since corrected by this Board, does not warrant this remedy.    

2.  There is no evidence that the applicant performed duty in MOS 71L20F5, administrative specialist/postal clerk.  Had evidence existed, however, this Board would not use its authority to award that MOS to a soldier, whose qualifications in that MOS the Board would not be able to determine.  Such determination could best be made by the authorities cited in the governing regulation. 

3.  There is no evidence of record nor has the applicant provided any concerning the awards he is requesting.  Should the applicant have orders for these awards, he should contact his commanding officer or military personnel officer to have those included in his official file.

4.  The applicant’s $7,352.64 in severance pay was to bridge the gap between his military service and his transition to civilian life.  The Board notes, that in view of the 18 March 1998 decision to reinstate the applicant into the Army with full pay and allowances, from 11 September 1996 until his reinstatement (which according to the date of the correspondence to the Total Army Personnel Command directing reinstatement could not be earlier than 30 March 1998), his basic pay alone would be approximately $30,000.00.  To give him his full pay and allowances, and to allow him to retain the severance pay he received, would in effect award him double pay for some period of his service.  The18 March 1998 Board has determined that he should reimburse the Army for the severance pay that he received.  There is no injustice in this, in light of the other determinations made by this Board.    

5.  The applicant was provided the relief that he requested when he made application to this Board in September 1996.  He has submitted neither probative evidence nor a convincing argument in support of his latest  request. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___sac__  __fkm___  ___mdm__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-09900A/AR1999015790	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990203	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.100.05		
2.107.00		
3.128.08		
4.131.00		
5.		
6.