PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999027048

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		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 his date of rank be back-dated to 1 October 1998.

3.  The applicant states that he was qualified to be promoted to Staff Sergeant (SSG), E-6 on 1 October 1998 under the guidelines of a conditional promotion.  He sent several DA Forms 4187 through the appropriate channels but never received a reply.  Supporting evidence is as listed on the DD Form 149 (except only two DA Forms 4187 are included).

4.  The applicant's military records show he enlisted in the Regular Army on      26 March 1993 for training in military occupational specialty (MOS) 91Y (Eye Specialist).  He was promoted to Sergeant, E-5 on 20 September 1996.

5.  At some point, the applicant reclassified into MOS 91B (Medical                Non-Commissioned Officer).  He was recommended for promotion to SSG in MOS 91B on 22 October 1997 with a promotion point total of 730 points.

6.  The applicant arrived in Korea around February 1998.  He had been unable to be scheduled for a Basic NCO Course (BNCOC) class date prior to his departure.  Since Korea was a short, 12-month overseas tour he could not be scheduled for BNCOC on a temporary duty (TDY) and return basis.  (Graduation from BNCOC was required before a soldier could be promoted to SSG.)

7.  On 1 March 1998, the cutoff score for promotion to SSG, MOS 91B was 708 points for primary zone and 709 points for secondary zone.  The applicant met the cutoff score for secondary zone promotion.  A waiver could be requested and his unit e-mailed such a waiver (NCOES waiver) to the U. S. Total Army Personnel Command (PERSCOM).  On 18 May 1998, PERSCOM disapproved the request because he was not 91B MOS qualified nor had he submitted a 91B train-up package, so he was not eligible to request an NCOES waiver.  (Waivers are only granted to soldiers who are fully qualified to attend the appropriate level of NCOES but are unable to obtain a class seat.)

8.  In several e-mail messages provided by the applicant, he stated he completed his 91B train-up package on 1 October 1998 and forwarded another request for NCOES waiver to PERSCOM in October 1998.  That request is not available.  However, he received e-mail verification from a Mrs. Gates at PERSCOM on       2 October 1998 that they had received his train-up packet.  (It is not known what office Mrs. Gates worked in, possibly 91B Branch but if so she no longer works there.)  He also inquired of Mrs. Gates on 22 December 1998 regarding his promotion and his BNCOC date and did she have any information.  Mrs. Gates responded by telling him to have his retention NCO contact PERSCOM.  His retention NCO learned he had no BNCOC date as yet and would have to wait until he got to his new duty station and reapply.  He informed Mrs. Gates and the PERSCOM BNCOC point of contact that he had submitted another request for conditional promotion in October 1998 and he had heard nothing yet and could they help him.

9.  The applicant departed Korea in February 1999.  Effective 1 June 1999 conditional promotions to SSG, without first attending BNCOC, were approved.  The applicant was conditionally promoted with a date of rank and effective date of 1 June 1999 conditional upon attending and successfully completing BNCOC within one year.  He attended BNCOC in August 1999 and graduated in December 1999.

10.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  In pertinent part, it provides that, effective 1 October 1992, soldiers were required to be graduates of BNCOC prior to promotion to SSG.  Soldiers are allowed to compete for promotion to SSG but cannot be promoted to SSG until completion of BNCOC.  Soldiers who met a cutoff score for SSG after 1 October 1992, but were not BNCOC graduates, would be promoted effective the date of graduation from BNCOC.  Soldiers could request an exception to policy to this requirement.  Approval of this exception gave them the effective date and date of rank of the graduation date of the first available class after they met the cutoff score, even if they did not attend that course, as long as attendance was precluded through no fault of their own and they eventually did graduate from the next available class they were able to attend.  (PERSCOM has verified that there was a graduating 91B BNCOC class on 28 August 1998.)  Effective 1 June 1999 conditional promotions to SSG, without first attending BNCOC, were approved.

11.  In the processing of this case, an advisory opinion was obtained from the Promotions Branch, PERSCOM.  That office recommended the applicant’s request be denied.  His request for waiver was denied by PERSCOM NCOES Branch on 18 May 1998 because he was not MOS qualified.  No further waiver request was received by the NCOES Branch or Promotions Branch.  He was appropriately conditionally promoted on 1 June 1999.

12.  The applicant rebutted the advisory opinion.  He stated that after he forwarded his first request for waiver to PERSCOM, which was denied, he subsequently forwarded three additional requests, none of which seemed to have reached their proper destination.  Even with his conditional promotion, he would lose eight months date of rank and pay if his request is not approved.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in the case.

2.  The Board finds no fault with the PERSCOM advisory opinion.  NCOES Branch appropriately disapproved the applicant’s initial request for an NCOES waiver in May 1998 because he was not MOS qualified.  They never received another request from him after he became MOS qualified on 1 October 1998 so they could not approve a waiver.  He was then appropriately conditionally promoted to SSG effective 1 June 1999, subsequently graduating from BNCOC in December 1999.

3.  However, the Board believes the applicant when he states he submitted another DA Form 4187 requesting an NCOES waiver in October 1998.  He knew an NCOES waiver was required in order to be promoted.  He knew a 91B     train-up package was required in order to become MOS qualified so he could get an NCOES waiver.  He had that train-up package and on 2 October 1998 he received confirmation from PERSCOM that it was received.  The Board concludes that it is reasonable to presume that he submitted another request for NCOES waiver as soon as that confirmation was received.  Soon thereafter he submitted inquiries to an office at PERSCOM (maybe not the right office) requesting information if his request for waiver had been received.  It would be an injustice to a soldier who was good enough to be promoted out of the secondary zone to penalize him for what appears to be a post office or mailroom problem.  

4.  In view of the foregoing and notwithstanding the advisory opinion, 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:

    a.  showing the individual concerned was promoted to Staff Sergeant, E-6 on  1 October 1998, the date he became MOS qualified, with an effective date of promotion of 1 October 1998; and

     b.  paying to him any and all back pay and allowances due him from               1 October 1998 to the present as a result of the aforementioned correction.

BOARD VOTE:  

__rvo___  __eb____  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999027048	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.		
3.		
4.		
5.		
6.