PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            10 August 2000
	DOCKET NUMBER:   AR2000035787

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 date of rank (DOR) for promotion to the rank of Major be adjusted by 49 months to account for 33 months he was on the Temporary Disability Retired List (TDRL) and the 16 months he served without the proper security clearance upon his return to active duty from the TDRL.

3.  The applicant states, in effect, that on 30 November 1995 while running during physical training he was hit by a car which resulted in his being placed on the TDRL for 33 months.  He also claims that once he returned to active duty, from the TDRL, it took 16 months to obtain the proper finalized security clearance.  He contends that these two events have placed him at a significant competitive disadvantage with his peers as a Military Intelligence (MI) Officer.  

4.  The applicant also indicates that based on his current DOR he would be first time considered for promotion to Lieutenant Colonel (LTC) in March 2000.  However, given the fact he had not served in a branch qualified position or received Officer Evaluation Reports (OERs) for the 33 months he was on the TDRL and because he served in MI positions for 16 months without a proper security clearance subsequent to his return to active duty, he would have a significant competitive disadvantage with his MI officer peers when considered by the March 2000 LTC board.  Further, he believes it is not likely that he would be promoted.  Note:  During the processing of this case, the LTC promotion board was held and the applicant was in fact not selected for promotion.

5.  The applicant’s military records show that on 20 December 1983 he was appointed an Air Defense Artillery (ADA) 2nd Lieutenant in the United States Army Reserve (USAR) and on 22 June 1984 he entered active duty.

6.  On 1 January 1988, the applicant was promoted to Captain (CPT) as an ADA officer.  On 30 November 1995, while running as part of his physical training, he was hit by a car and received extensive injuries.  As a result of these injuries he was placed on the TDRL on 3 December 1995.  

7.  On 1 August 1998, after 33 months on the TDRL, the applicant was found fit for duty and he was released from the TDRL and returned to active duty. He was also promoted to MAJ in the MI Corps and he was assigned to the 1st Cavalry Division, Fort Hood, Texas, to perform duties as a Deputy G-2 (Intelligence Officer).  He served in this position until he was reassigned on 4 July 1999.

8.  The applicant received a permanent change of station OER, covering the period 8 August 1998 to 4 July 1999, which evaluated his performance as the 
1st Calvary Division Deputy G-2.  He was rated by the Division Chief of Staff, a colonel, and the senior rater (SR) on the OER was the Assistant Division Commander-Maneuver, a Brigadier General.  
9.  The OER contained excellent evaluations from both the rater and SR.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the 1st block (Outstanding Performance-Must Promote); in addition, the comments provided by the rater were extremely complimentary and attested to the applicant’s outstanding performance of duty.  In Part VIIa (SR-Promotion Potential) the SR placed the applicant in the 1st block (Best Qualified) and his corresponding comments indicated that the applicant was an outstanding officer by any measure and that he should be promoted to LTC.  The applicant was positioned in the center of mass of the SR’s evaluation profile based on the 
11 officers evaluated by the SR.

10.  The applicant provided documents verifying that the two MI positions he has served in since his release from the TDRL required Top Secret- Sensitive Compartmented Information (SCI) access security clearances.  In addition, he supplied a memorandum from the Fort Hood security office which verifies that his security clearance with SCI access was submitted on 9 September 1999 and final approval was granted on 17 November 1999.  

11.  During the processing of this case an advisory opinion was requested of and received from the Promotion Branch of the Army Personnel Command (PERSCOM).  They comment that had the applicant not been on the TDRL he would have received at least three OERs, which would make him more competitive for promotion to LTC.  They opine that the applicant’s date of rank should be adjusted to 29 April 1998, to account for the 2 years, 8 months, and 
28 days he was on the TDRL,  They conclude that this would place him in the first time considered zone for promotion to LTC in the year 2003 and make him more competitive for promotion.  

12.  The applicant was afforded an opportunity to respond to the PERSCOM advisory opinion, which he did on 17 July 2000.  He concurred with PERSCOM recommendation for the DOR adjustment to account for his time on the TDRL.  However, he requested an additional 16 month adjustment to his DOR, as a matter of equity, to cover the time he served as an MI officer without holding the appropriate security clearance.  He stated, in effect, that this adjustment is as valid as the DOR adjustment made based on his time spent on the TDRL.  His full rebuttal statement, containing his expanded argument on this issue, is enclosed. 

13.  Army Regulation Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It supports the objectives of the Army's officer promotion system, which include filling authorized spaces with the best qualified officers.  It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers. 

14.  Paragraph 1-27 of the promotion regulation provides the policy guidance pertaining to TDRL returnees.  It states, in pertinent part, that officers placed on the active duty list from the TDRL, in the grade they held when placed on the TDRL, will keep that same ADOR and that such officers are treated as though they had no break in service. It further indicates that failure twice to be recommended by promotion boards to MAJ may result in separation and that officers cannot decline the promotion consideration in the zones of promotion consideration, which are defined by active duty DOR. 

CONCLUSIONS:

1.  The regulation states, in effect, that officers returning to active duty from the TDRL will retain their DOR and be treated as though they had no break in service.  However, the Board finds that application of this rule would surely place the applicant in a significant competitive disadvantage with his peers and result in an injustice to him.  Therefore, in the interest of equity and justice, the Board concludes an exception to policy is warranted in this case.  

2.  The Board concurs with the opinion of PERSCOM that the lack of OERs in the applicant’s file would not allow a promotion selection board to accurately rate his promotion potential in comparison to his peers and that this would place him at a competitive disadvantage.  Thus, the Board finds that it would be appropriate to adjust the applicant’s DOR to 29 April 1998, which would account for his time on the TDRL.

3.  The Board does not, however, find the applicant’s equity argument, in regard to his lack of the appropriate security clearance, persuasive.  While his points in regard to the regulatory requirements for security clearances are well taken, the Board does not find this factor would be a significant discriminator in the promotion selection process.  

4.  Notwithstanding his lack of an SCI access security clearance, the applicant received excellent evaluations on the first OER he received as an MI officer.  The rater and SR placed him in the “Outstanding Performance-Must Promote” and “Best Qualified” blocks respectively, and they provided equally complimentary comments attesting to both his outstanding performance and potential to serve in a higher grade.  In addition, the applicant will receive OERs for three years prior to being considered for promotion which will allow him to compete for promotion on an equitable basis with his peers.  

5.  In the opinion of the Board, no fair minded promotion selection board would ignore the circumstances which led to the applicant not having the appropriate security clearance.  This is especially true in this case given the weight OERs are given in the promotion selection process.  Therefore, the Board concludes there is an insufficient equity basis on which to grant the requested relief associated with the applicant’s security clearance issue.

6.  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 adjusting the MAJ DOR of the individual concerned, to account for the time he spent on the TDRL, to 29 April 1998 and by placing a non-prejudicial memorandum in the record to explain the gap in the applicant’s OER rating periods. 

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

BOARD VOTE:  

___js____  __kah___  __mdm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035787	
SUFFIX		
RECON		
DATE BOARDED	2000/08/10	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  224	112.0200	
2.		
3.		
4.		
5.		
6.