PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            20 January 2000
	DOCKET NUMBER:   AR1999026655

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		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 promotion to staff sergeant be reinstated and date of rank be reestablished as 12 March 1998.

3.  The applicant states, in effect, on 12 March 1998 he had 751 promotion points which qualified him for promotion based on the February 1998 cutoff score.  He completed the basic noncommissioned officer course (BNCOC) on 12 March 1998, which he believed was the last prerequisite he had to meet in order to qualify for his promotion and a few days later orders were published promoting him to staff sergeant with a DOR of 12 March 1998.  Although the orders indicated that he had a 12 month service requirement no one advised him he had to meet this prerequisite in order to be promoted or that he had to do it within a prescribed timeframe.  After pursuing reenlistment and after consultation with his wife the applicant decided that the incentives being offered were not attractive and opted to join the Reserves, which he believed would satisfy his promotion service requirement; however, in June 1998 he was advised that he would have to reenlist to meet the promotion service requirement and that the 12 month service requirement would have to be performed on active duty.  At this time he went to the battalion reenlistment office and submitted an extension packet to complete the 3 months he needed to satisfy the 12 month service remaining requirement.  He was advised shortly thereafter that he could not extend because he had received an assignment to Fort Campbell, Kentucky.  He attempted to resolve this problem but felt he was not receiving good advice and at this time he contacted the office of the Inspector General (IG) to get assistance.  On 10 June 1998, he was advised that his assignment had been deleted and at this time he again attempted to submit his extension paperwork through the reenlistment office but was advised by the retention noncommissioned officer (NCO) that he had to see the S-1 NCO.  He was unable to contact the S-1 NCO for a few days and when he did he was advised that his promotion packet had been submitted to the Army’s Personnel Command (PERSCOM) where the matter would be adjudicated and a determination on whether his promotion had been valid or not.  The IG office also informed him that this process would take place.  He claims that it is obvious that there were several problems associated with his promotion and the subsequent demotion as his enclosures show and he is confident that he made every possible effort to comply with the regulatory requirements for his promotion.  He continues by indicating that he feels he was treated extremely unfair and that there were several unethical processes followed in revoking his promotion, which he labored hard to attain and he had served over 9 of the 12 month service remaining requirement when his promotion was revoked.  He goes on to explain that he is still serving in the Reserves and that given the total force concept he believes it would be appropriate to reinstate his rank at this time.  He has enclosed copies of his promotion paperwork and his extension request in support of his application.  

4.  The applicant’s military records show that on 2 March 1987, he entered the Regular Army for 3 years.  He attended One Station Unit Training at Fort Drum, New York where on 14 March 1989, he extended his enlistment for 5 additional months.  Upon successful completion of his training he was awarded military occupational specialty 11B (infantryman) and he was assigned to Germany for his first permanent duty station.  He served 3 years and 5 months and was honorably discharged from this enlistment, in the rank of specialist/E-4 (SP4), on 1 August 1990.  On 2 January 1996, he reenlisted in the Regular Army for 
3 years with an option for assignment to Europe.

5.  His evaluation reports indicate that he had a successful career and his promotion potential and his potential for service in positions of greater responsibility were superior.  He was promoted to the rank of sergeant on 
1 September 1996 and he successfully completed both the primary leadership development course and the basic NCO course.  In addition, he earned the Expert Infantryman Badge, the Army Commendation Medal, two Army Achievement Medals, and two Good Conduct Medals.  His service record shows no derogatory information nor any evidence of disciplinary problems during his tenure in service.  

6.  On 1 April 1998, Orders Number 091-007 was published promoting the applicant to the rank of staff sergeant/E-6, with a DOR of 12 March 1998.  This order contained a special instruction that indicated that the applicant must satisfy a 12 month service remaining obligation prior to his promotion.  

7.  On 2 June 1998, the applicant completed a Department of the Army Form 3340-R (Request for Reenlistment or Extension in the Regular Army).  In this request, he indicated that he was requesting extension in order to meet his promotion service remaining requirement.  His unit commander completed his portion of this request by stating that the applicant was fully qualified for the requested action and that he approved the request.  

8.  The applicant provided copies of two different memoranda prepared for the unit commander’s signature, both dated 12 June 1998.  The first indicated that the unit commander strongly recommended approval of an exception to the service remaining requirements for promotion in the applicant’s case because he was promoted prior to his meeting the service remaining requirements.  This endorsement indicated that while there was an error made by the personnel office in publishing the order and promoting the applicant prior to his taking action to meet the service remaining requirement, this should not prohibit his taking the necessary action at this time.  The second memorandum provided is a request being made by the unit commander that the applicant’s rank be changed to read sergeant instead of staff sergeant due to the error made by the personnel division.  
9.  On 15 June 1998, Orders Number 166-002 were published which revoked the applicant’s promotion order, which, in effect, changed his rank back to sergeant.  There is no indication in the published order on who’s authority this action was taken, other than that it was taken under the provisions of the governing Army Regulation.  The applicant’s record is also void of any information pertaining to the processing of this action at PERSCOM or the logic used for revoking the order and the applicant’s promotion.

10.  On 1 January 1999, the applicant was honorably discharged, in the rank of sergeant/E-5, after completing 3 years of his current enlistment.  He immediately began a 3 year enlistment with the USAR, in the rank of sergeant, and was assigned duties with the 3747th Training Brigade at Grafenwoher, Germany, a Troop Program Unit of the Ready Reserve.  

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policy and procedure for the promotion and reduction of enlisted soldiers of the Army.  Paragraph 3-36, provides the rules for processing service remaining obligations.  It states, in pertinent part, that the service remaining obligation is 
12 months for promotion to staff sergeant/E-6 and that the service remaining obligation will be computed from the first day of the promotion month. Table 
3-15 (Processing Service Remaining Obligations) provides the steps to be taken by members of the personnel system when processing a promotion when a soldier must take action to meet a service remaining obligation.  It indicates that the soldier would be notified of the requirement, that a suspense date established for him or her to take action, and that the action would be taken and the completed extension or reenlistment would be provided prior to the publication of promotion orders. 

12.  Paragraph 1-10 outlines when a soldier is in a nonpromotable status.  It states, in pertinent part, that a soldier is ineligible for promotion if they fail to quality for reenlistment or extension of their current enlistment to meet the service remaining obligation for promotion to SSG and that the promotion authority will remove the names from the promotion recommended list of these soldiers once they have been determined to be ineligible to reenlist or extend.  
Paragraph 1-17 provides the authority to revoke promotion orders once it has been determined that a soldier has been erroneously promoted.  

CONCLUSIONS:

1.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found that the revocation of the applicant’s promotion to staff sergeant/E-6 was unjust, and in the interest of equity, this situation should be corrected at this time.  

2.  While the Board found that the applicable regulation does provide for the revocation of a promotion order if it is determined that a soldier was promoted erroneously, the Board found this provision of the regulation should not have been enforced in the applicant’s case.  The regulation states that members of the personnel system are required to inform a soldier of a service remaining requirement, establish a suspense date for the appropriate action to be taken, and to ensure the extension or reenlistment is accomplished prior to publishing orders.  This failure to comply with regulatory provisions and to accomplish these actions was the fault of individuals in the personnel system.  The applicant was not the responsible agent for ensuring these actions took place.  

3.  Additionally, the Board concluded that the applicant, once properly notified that he had to comply with the service remaining obligation, attempted to take the necessary steps accomplish this action by requesting an extension to his enlistment.  However, it appears the system again failed to find a way to accomplish this action.  Therefore, the Board finds that relief is warranted in this case and that the applicant’s rank and date of rank should be restored.  Further, the applicant’s USAR service record should be corrected accordingly.

4.  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:

a.)  by showing that the individual concerned was promoted to the rank of staff sergeant/E-6 with a date of rank of 12 March 1998;

b.)  by showing that the individual concerned still held this rank and date of rank on 1 January 1999, the day he was released from active duty; and 

c.)  by showing that the individual concerned enlisted in the USAR in the rank of staff sergeant/E-6 with a date of rank of 12 March 1998, and has continuously served in that rank since his enlistment in the USAR.

2.  That the individual concerned be provided all back pay and allowances associated with the corrections outlined above. 

BOARD VOTE:  

__be____  ___rgh __  ___gg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Robert G. Hinkle______
		        CHAIRPERSON

INDEX

CASE ID	AR1999026655	
SUFFIX		
RECON		
DATE BOARDED	2000/01/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/01/01	
DISCHARGE AUTHORITY	AR 635-200, C4	
DISCHARGE REASON	ETS	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 310	131.0000	
2.		
3.		
4.		
5.		
6.