MEMORANDUM OF CONSIDERATION

	

	BOARD DATE:          23 January 2001
	DOCKET NUMBER:  AR2000039629 

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Walter T. Morrison		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, that his records be corrected to show that he was retired as a sergeant first class in pay grade E-7. 

APPLICANT STATES:  In effect, that members of his chain of command changed his urine test to reflect a positive test to hide the fact that they had harassed him for 5 years.  He submits correspondence from several Members of Congress; page 6 of a DA Form 3355 (Promotion Point Worksheet), enclosed with a letter from Headquarters, Devil Troop Brigade, Fort Polk, Louisiana, dated 22 July 1987; numerous United Parcel Service Records; several AT&T Billing Records; a DA Form 1559-R (Inspector General Action Request), dated
3 October 1995; and numerous pieces of written correspondence that were previously provided his chain of command.  He also submits two cassette tapes and numerous written statements that he previously sent to the Governor of Georgia.  Both the taped contentions and the written correspondence to the Governor state that in 1980 he gave a black specialist who had previously been assigned to Fort Polk, Louisiana three counseling statements and stopped him from going before an E-5 Promotion Board.  Shortly after this, the applicant received orders assigning him to Fort Polk.  The specialist retaliated against him by writing to soldiers that he had previously served with at Fort Polk and spread rumors that the applicant was prejudiced against blacks.  He also believes that because of these rumors his first sergeant at Fort Polk reprised against him by having him dismissed from a Nuclear, Biological, Chemical Course and that the first sergeant also had the facilitator administering the Army Physical Fitness Test fail him on pushups to prevent him from going before an E-6 Promotion Board.  He believes that his reenlistment paperwork was intentionally lost in an attempt to hold up his reenlistment and that his promotion packet was deliberately removed from his official military personnel file (OMPF) at Fort Polk, because it was not there when he got to Germany.  When his promotion packet was finally obtained from his former unit, his score was recalculated and it was less than his original cut-off score.  He also believes that he could have been promoted even though his promotion cut-off score never dropped.  Additionally, he states that he is not prejudiced; that he grew up around black people; he played with them when he was growing up and he later worked with them prior to joining the military.

EVIDENCE OF RECORD:  The applicant's military records show: 

That he enlisted in the Regular Army (RA) on 17 February 1976 and his service thereafter, through successive reenlistments was continuous until he was honorably released from active duty on 29 February 1996, and he was placed on the retired list with the rank of sergeant on 1 March 1996.  He had completed 
20 years, 1 month and 14 days of active service.  He was promoted to the rank 

of sergeant, pay grade E-5 on 4 September 1981.  He served in military 
occupational specialty (MOS) 63H (Track Vehicle Repairer) for 19 years and 
5 months.  

The letter that the applicant submitted from the Devil Troop Brigade, dated 
22 July 87, in response to a congressional inquiry shows that the applicant went before the E-6 Promotion Board on 10 February 1987, while he was assigned to Fort Polk and he was placed on the E-6 Standing Promotion List.  The Promotion Point Worksheet that is enclosed with this letter shows that the applicant’s total administrative points equaled 450, his total board points equaled 144 and his total promotion points equaled 614.   

On an unknown date in 1994, the applicant filed an Equal Opportunity (EO) complaint alleging that enlisted soldiers in a previous unit had discriminated against him in 1983.  In addition to this allegation, he wrote to his congressman stating that someone had called the Inspector General’s (IG) Office and had tried to have his EO complaint dismissed.  

On 13 May 1994, the applicant’s unit in Kuwait responded to a congressional inquiry concerning his EO complaint by stating that it was impossible to investigate and or to resolve an alleged complaint of discrimination that had allegedly taken place in 1983 by soldiers that were not in the current unit.  As a result of the number of years that had passed since the alleged incident, the applicant’s EO complaint was determined to be unfounded.  Further, the applicant’s chain of command stated that “when the applicant began receiving attention from both the battalion and company commanders concerning his promotion, he began telling people that the chain of command was going to promote him without having the required number of points so that the promotion issue would be put to bed.  The phone call to the IG was made as a result of another soldier overhearing the applicant’s conversation.  At this time, the applicant was on the E-6 Standing Promotion List.  His promotion points as of his last recomputation equaled 741 points and the cutoff points for his MOS as of May 1994 was 998.  The chain of command denied the applicant’s contention that an attempt was being made to improperly promote him. 

On 3 October 1995, the applicant reported to the Fort Benning, Georgia IG that a recent urinalysis was improperly tampered with, resulting in a positive reading.  He also reported that even though he had not met the promotion cut-off score, his chain of command improperly tried to promote him.  The Fort Benning IG inquired into both contentions.  The Chief of the Alcohol and Drug Abuse Prevention and Control Activity (ADAPCA), Fort Benning reported that the applicant had not received a positive reading on any urine tests administered at Fort Benning.  Therefore, there was no basis to support his contention that his results were tampered with.  Both the applicant’s chain of command and the Installation Promotion Section refuted the contention that the chain of command attempted to improperly promote him by showing that no personnel actions had been initiated to promote him.

A memorandum from Headquarters, 324th Support Battalion (Forward), Fort Benning, dated 3 November 1995, shows that the applicant’s unit responded to a different congressman stating that “all allegations were against soldiers who were no longer in the command and that the battalion had no authority to resolve a discrimination complaint against those soldiers.”  Further, his command reported that the applicant was no longer on the E-6 Standing Promotion List due to the loss of a considerable amount of promotion points because of the elimination of Administrative Points and Skill Qualification Test (SQT) points.   The applicant fell below the necessary 550 minimum points to stay on the 
E-6 Standing Promotion List.  Additionally, his command stated that there was no recorded evidence to show that the applicant had ever received a positive reading on any urine tests while at Fort Benning.

On 12 December 1995, the applicant’s congressman requested that the Department of the Army Inspector General (DAIG) look into the applicant’s contention that his urine test was improperly tampered with, resulting in a positive reading.  The DAIG concluded that the IG, Fort Benning had made an impartial and thorough investigation and the issue was unsubstantiated.

Since his application was received at the Board, the applicant submitted evidence by faxing on 27 November 2000 a Department of Labor Separation Notice from the State of Georgia which shows that he was dismissed from his current place of duty on 2 November 2000 after he refused to take his scheduled Department of Transportation (DOT) Urinalysis Drug Screening.  The applicant claims that he refused to take the test because he was paranoid, he believed that he was being set up as he was in 1994.  On 3 November 2000, he paid the Concentra Medical Centers $22.00 to perform a urinalysis for him.  The test results were negative for all categories for which he was tested.

Army Regulation 600-200 at chapter 7, in effect prior to December 1991 and Army Regulation 600-8-19, at chapter 3, currently in effect provides the requirements and procedures for promotion of soldiers to pay grades E-5 and
E-6.  Essentially, the soldier, after appearing before a local promotion board, will be awarded a promotion score.  The soldier’s name and promotion score will be integrated into a local standing promotion list, by MOS.  The Department of the Army (DA) announces promotion cutoff scores each month, by MOS, based on the needs of the Army.  If the soldier meets or exceeds the announced DA cutoff score, the local command will issue promotion orders effective the first day of the month for which the promotion cutoff score is announced.

However, total promotion scores may be adjusted periodically to add or delete promotion points.  Further, at the time a soldier supposedly meets a DA announced promotion cutoff score, all promotion points must be revalidated.

On 1 April 1994, the requirement of the SQT score to be computed for promotion to higher pay grades was deleted and the total number of promotion points that could be awarded was reduced from 1000 points to 800 points.  Nevertheless, the soldier had to score at least 550 points to be eligible to be on a standing promotion list.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s retirement was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and he was retired at the highest rank in which he had satisfactorily served. 

3.  The applicant’s local EO Office, his local IG office, the DAIG and several congresspersons have investigated the contentions that the applicant has made and all allegations were unsubstantiated.

4.  The Board empathizes with the applicant in that it was unfortunate that the SQT score was eliminated from his promotion points and he was never able to meet the promotion cutoff score for his MOS to be promoted to pay grade E-6.  However, it was his responsibility to assist with managing his career.  For example, he could have requested transfer to an understrength MOS which would have increased his chances of being promoted, or he could have taken military school courses or taken other steps to increase his standing promotion list scores.  

5.  The applicant has provided no probative evidence to establish a basis for retirement as a sergeant first class in pay grade E-7.
6.  The fact that the applicant was dismissed from his place of employment with the state of Georgia in November 2000 after he refused to take a DOT Urinalysis Drug Screening has no bearing on this case.

7.  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

__lls____  __teo____  __wtm___  DENY APPLICATION

						
		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039629	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19960229	
DISCHARGE AUTHORITY	AR635-200, CH 12	
DISCHARGE REASON	Sufficient Service for Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.0900	
2.		
3.		
4.		
5.		
6.