PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          24 October 2000
	DOCKET NUMBER: AR 2000034931 

	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. Carl W. S. Chun		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Edwin S. Castle		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 adjustment of his dates of rank to sergeant and staff sergeant.

3. The applicant states he was told by both his recruiter and by the career counselor that he would be brought on active duty at least as a sergeant, and more likely as a staff sergeant, pending a grade determination.  Based on that assurance he proceeded to pack up his household goods and place them in storage.  He also gave his notice to his employer, requested release from his Reserve unit, quit school and gave up his apartment.  However, on the day he went to sign his enlistment contract, he was told that he would be reduced to the rank of specialist.  He further states that he was told he would be promoted to sergeant within 90 days upon arrival at his first permanent duty station.  This did not happen.  After he was finally promoted to sergeant, he was not given proper credit for his active reserve training resulting in a denied opportunity for promotion to staff sergeant.   The applicant also contends that the initial grade determination was flawed in that his entire career in the Reserve Component was not taken into consideration.  In support of his application, he provides a 4- page letter of explanation with 26 enclosures.  Among these are copies of his Reserve Component military records, orders, enlistment contracts, school transcripts, military training records, enlisted evaluation reports, promotion board proceedings, extracts of publications and related personnel actions such as an Inspector General inquiry and request for grade determination.

4.  The applicant’s military records show that at the time of his application he was on active duty in the rank and pay grade of sergeant E-5.  He served in the Army Reserve from March 1980 until his discharge on 20 July 1993 for the purpose of enlisting in the Regular Army.  While serving in the Army Reserve he attained the rank of sergeant first class (E-7) and held a primary military occupational specialty (PMOS) 51H (Construction Supervisor).  He completed a Reserve Component resident basic noncommissioned officer course (BNCOC) in June 1985.

5.  A Summary Points Inquiry dated 2 February 1995 shows that the applicant had served in the Army Reserve for 13 qualifying years equating to 3.52 years of active service credit.  

6.  On 30 April 1993 the United States Army Recruiting Battalion, Milwaukee, Wisconsin, requested on behalf of the applicant, a waiver of grade determination of E-7 for Regular Army enlistment.  On 14 May 1993 the Retention Management Division, Total Army Personnel Command (PERSCOM) granted approval for a 90-day period for the applicant to enlist in the Regular Army in the pay grade E-4, provided he was otherwise qualified.  

7.  On 21 July 1993 the applicant enlisted in the Army for 3 years in the rank and pay grade of specialist E-4 with PMOS 51B.  He was assigned to Fort Jackson, South Carolina for initial processing.  His first permanent duty station was in Vilseck, Germany.

8.  In February 1995 his commander recommended him for promotion to the rank of sergeant (E-5) and he appeared before the promotion board.  On 8 February 1995 the promotion board recommended him for promotion and placed him on the promotion standing list.  However, he was not granted 30 points for graduation from BNCOC as equivalency credit for Primary Leadership Development Course (PLDC) because it was not earned in the Active Component.   He attained 583 promotion points and met the promotion point cutoff score on 1 September 1995. He was denied his promotion until completion of PLDC.  On 24 May 1996 he graduated from PLDC and was immediately promoted to sergeant.

9.  On 27 December 1996 the Inspector General, 1st Armored Division published a memorandum for the applicant, the subject of which was  “Results of Inspector General Inquiry.”  It substantiated the applicant’s allegation that he was improperly denied promotion to sergeant in September 1995 because the servicing personnel service detachment refused to give credit for PLDC on the basis of completing a higher level professional development course, which was BNCOC.  The Inspector General advised that the applicant’s recourse for adjusting his date of rank from May 1996 to September 1995 would be by appeal to this Board.

10.  In January 1998 the applicant’s PMOS was reclassified to 52E.  He was recommended for promotion to staff sergeant and appeared before the January 1999 promotion board.   As of the January 2000 promotion standing list, the applicant had 768 promotion points and was promoted to staff sergeant effective 1 January 2000.  Since BNCOC is a requirement for promotion to staff sergeant, this promotion is conditional upon the applicant’s completion of this training at an Active Component school.

11.  In the processing of this case a staff advisory opinion was obtained from the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM).   It opined that his promotion to sergeant and conditional promotion to staff sergeant were correct in accordance with Army policy in that he had not completed PLDC or BNCOC in the Active Component environment.   Further it recommended that the applicant maintain his current promotion (conditionally) to staff sergeant effective 1 January 2000.  A copy of the opinion was provided to the applicant for his information and opportunity to submit a rebuttal statement.

12.  On 15 May 2000 the applicant responded to the PERSCOM opinion discussed above.  He clarified that the goal of his application is to correct the grade determination made at the time he was transferred from the Reserve Component into the Active Component.  He contends that as a sergeant first class with more than 13 years of service in the Active Reserve, he should have qualified for entry on active duty in the Regular Army as a staff sergeant E-6), not as a specialist (E-4).  He further contends that he met the military education standard for promotion by graduation from a resident BNCOC from 16-19 June 1985 and that according to Army Regulation 600-8-19, Table 3-2, this exempted him from any further requirement.

13.  Also, in the processing of this case a staff advisory opinion was obtained from the Recruiting Policy Branch, Office of the Deputy Chief of Staff for Personnel (ODCSPER).  It opined that the applicant had met all of the requirements to transfer from the Reserve Component to the Active Component at the minimum grade of E-5.  Furthermore, it stated that a clear injustice was done to the applicant when he decided to enter active duty.  He was serving in the United States Army Reserve since 1980, was a sergeant first class and the Personnel Command reduced him to the rank of specialist to enter active duty.  The evidence was present at a minimum to enlist him no lower than sergeant    E-5.  It recommended adjustment of the applicant’s rank from specialist to sergeant, effective 21 July 1993, and further adjustment in rank from sergeant to staff sergeant, effective 1 August 1995.  A copy of the opinion was provided to the applicant for his information and opportunity to submit a rebuttal statement.  The Board has not received a response.

14.  Army Regulation 351-1 provides in pertinent part that PLDC is a non-MOS specific 4-week leadership course.  BNCOC is an MOS specific course that varies in length (6 weeks or longer).  Soldiers selected for BNCOC must be graduates of PLDC. BNCOC leader training builds on training presented in PLDC.

15.  Army Regulation 600-8-19, in pertinent part, provides that completion of PLDC is mandatory prior to appearance before the staff sergeant promotion board.  All nonresident courses are not acceptable for this requirement.  Graduates of a resident BNCOC, Advanced Noncommissioned Officer’s Course, or PLDC meet this requirement.   Graduation from PLDC, or an equivalent course listed above, is required prior to promotion to sergeant (E-5) effective       1 October 1989. Resident BNCOC graduates prior to 1 January 1986 are exempt from this requirement. It further provides that Noncommissioned Officer Education System (NCOES) Courses will be awarded promotion credit based upon the active component duration. 

16.  Army Regulation 601-210, in pertinent part, provides that current or former enlisted members of a Reserve Component in pay grade E-7 or above who were last separated within 24 months with less than 20 years of active service, will have their enlistment grade and eligibility determined by the Commanding General, PERSCOM.  For grades E-5 and above a vacancy in the applicant’s MOS must exist, otherwise, the grade determination will be specialist (E-4).  The applicant still must meet all other requirements for enlistment such as age, citizenship, trainability, medical, and pay grade.

CONCLUSIONS: 

1.  The applicant voluntarily enlisted in the Army on 21 July 1993 in the rank and grade of specialist (E-4).  There is no evidence showing that he was promised an enlistment as a sergeant (E-5) or staff sergeant (E-6), only that it was a probability.  Any hardship incurred by the applicant as a result of his actions taken prior to verification of his grade determination and his signing of the enlistment contract is not a valid basis for changing the grade determination made in this case.  

2.  The applicant’s contention that to be enlisted in the Army at a particular rank only required him to be fully qualified is without merit.  The grade determination process is a combination of individual qualifications and the current needs of the Army.  In this case, the grade determination was specialist (E-4).   While the applicant did hold all of the individual qualifications for enlistment as a sergeant (E-5), there is no way of knowing at this time whether or not a vacancy existed in his MOS at that rank.  Furthermore, the applicant did not qualify for enlistment as a staff sergeant (E-6) because he had not completed the Active Component requirements for BNCOC.  Lacking clear and convincing evidence to the contrary, the Board must assume regularity in the grade determination decision.  

3.  While the opinion of the ODCSPER concludes that the applicant was qualified to transfer from the Army Reserve to the Regular Army, it does not conclude that the Regular Army had a valid vacancy in his MOS at any grade above E-4.  Furthermore, there was no obligation or pressure placed upon the applicant to enlist since the grade determination was valid for 90 days to permit him to consider his options.  Therefore, an injustice to the applicant can not be supported.  

4.  The BNCOC resident course of instruction (Reserve Component) completed by the applicant in June 1985 is equivalent to the Active Component PLDC.  This is because both courses are 4 weeks in duration and train similar leadership skills.  Active Component BNCOC is a minimum of 6 weeks in duration, with many being longer, and requires prior completion of PLDC.  Therefore, the Reserve Component BNCOC cannot be equivalent to the Active Component BNCOC.   However, the applicant’s BNCOC training did give him equivalency for the Active Component PLDC and therefore, he should not have had his promotion to sergeant E-5 delayed from 1 September 1995 until 24 May 1996.

5.  Even with a correction of his date of rank to sergeant of 1 September 1995, there is no clear and convincing evidence that his commander would have recommended the applicant any sooner than he did for promotion to staff sergeant, or that his promotion points would have been sufficiently different.  Therefore, adjustment to his date of rank as a staff sergeant is not appropriate.
 
6.  In view of the foregoing there is no basis for changing the applicant’s entry on active duty grade; however, his 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 that the individual concerned was promoted to the rank of sergeant (E-5), with a date of rank and effective date of 1 September 1995. 

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

BOARD VOTE:  

__MKP__  __JTM___  __ESC__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   Margaret K. Patterson
		        CHAIRPERSON

INDEX

CASE ID	AR2000034931	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT (Partial)	
REVIEW AUTHORITY		
ISSUES         1.  224		
2.		
3.		
4.		
5.		
6.