MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 September 2000
	DOCKET NUMBER:   AR2000040291

	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	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  Retroactive promotion to Specialist Five (pay grade 
E-5). 

APPLICANT STATES:  That he was unjustly passed over for promotion to pay grade E-5.  He contends that his company commander’s failure to promote him from E-4 to E-5 before completion of his assignment in Vietnam in 1970 was in violation of Army Regulation 600-8-19.  

In support of his application, the applicant submitted a letter of explanation, dated 2 March 2000; a DA From 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ), dated 21 January 1970; three pages extracted from Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 1 November 1991; a copy of II Field Force Vietnam General Orders 599, dated 14 February 1970, which awarded the applicant the Army Commendation Medal; a letter of commendation, dated 18 November 1971; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 30 December 1971. 

In his letter of explanation, the applicant contends that his former unit commanders failed to properly apply provisions of Army Regulation 600-8-19 in his case.  He states that, at the conclusion of a suspension of favorable personnel action for nonjudicial punishment, he “was eligible to regain promotable status” and should have been promoted with his peers with an effective date of rank in March 1970.  The applicant contends that his peers received their promotions at the end of their assignments in Vietnam.  He also requests in his letter that he receive back pay and allowances for the difference between pay grade E-4 and E-5 from March 1970 until he was separated in December 1971.  He concludes that award of the Army Commendation Medal; dated 14 February 1970; a letter of commendation, dated 18 November 1971; and award of the Good Conduct Medal substantiates his position that the character of his service warranted this promotion.

In his letter of explanation the applicant also requests that his “SPN [Separation Program Number] 430” be changed to a more favorable code.  He states that the SPN 430 is a direct result of him not being promoted in 35 months since attaining pay grade E-4 and that he should have a SPN which “more favorably represents the character of [his] service.”

EVIDENCE OF RECORD:  The applicant's military records are not complete.  Some records have been obtained from alternate sources and show:

The applicant entered active duty on 8 April 1968 for a term of four years.  He completed training in Morse Code Intercept and served in Vietnam from 1 April 1969 to 31 March 1970.  The applicant was honorably discharged on 30 December 1971.  
The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged prior to the scheduled expiration of his term of service in pay grade E-4 under the provisions of Army Regulation 635-200, paragraph 5-33, with “SPN 430”.  His DD Form 214 shows that he completed three years, eight months and 23 days of his four-year enlistment.  Item 30 (Remarks) contains the entry:  “Item 11c:  Chapter 4, AR 600-200 applies.”

The applicant’s records do not contain any indication that he was considered for or was pending promotion from pay grade E-4 to E-5 at any time during his assignment in Vietnam.  There also is no evidence that the applicant’s name was placed on a unit promotion list during is assignment in Vietnam or that he was in a promotable status just prior to his reassignment from Vietnam.

The applicant’s records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ).  This record shows the applicant was notified on 12 January 1970 of the commanding officer’s intent to impose punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the offense of leaving his guard post at Bien Hoa, Vietnam, on 8 January 1970 without authority and with intent to abandon that guard post.  

The applicant submitted a statement, dated 15 January 1970, which explained the mitigating circumstances in his case and requested that any punishment be suspended.  On 16 January 1970, the commanding officer, the major in command of the 175th Radio Research Company, administered the following punishment:  Reduction to pay grade E-3 (suspended for two months); Forfeiture of $50.00 for one month; 14 days of extra duty; and 14 days of restriction.  

The applicant appealed the punishment to the lieutenant colonel in command of the 303d Radio Research Battalion.  In support of his appeal the applicant submitted a statement, dated 19 January 1970, which essentially stated that he “agreed” the punishment was “quite lenient” and that he was appealing the period of suspended reduction so he could be considered for promotion to pay grade 
E-5 before he departed from Vietnam.  After considering the legal review of the Article 15 by the Judge Advocate of II Field Force, Vietnam, and the statement from the applicant, the battalion commander denied the applicant’s appeal.

The applicant’s records also contain a DA Form 2627-1, dated 20 July 1970, which shows that he received nonjudicial punishment from a company grade officer for failure to be at his appointed place of duty.  The punishment in this case consisted of reduction to pay grade E-3 suspended until 19 October 1970 and 14 days of restriction.  

The applicant’s records contain a DA Form 2166-4 (Enlisted Efficiency Report) covering the period October 1970 through December 1970.  This Enlisted Efficiency Report [EER] contains ratings of average for “adaptability” and “duty performance”.  The EER contains ratings of below average for “attitude”, “initiative”, “leadership”, and “responsibility”.  The rater, a staff sergeant, commented that the applicant “puts forth very little effort toward improving himself, both as a soldier, and as an operator.”  The rater also indicated in Part IIC (Advancement Potential) that, given the authority and responsibility, he would not promote the applicant.  The reviewer for this EER, a chief warrant officer, concurred with the rater’s evaluation.

Army Regulation 600-200 (Enlisted Personnel Management), dated 24 March 1965 with changes 1 through 47, governed the promotion of enlisted personnel at the time of the applicant’s service.  The regulation specified that the underlying concept of the Army promotion system was to promote the best qualified individual and to recognize outstanding individuals with great potential for leadership or increased responsibility in their chosen fields.  The regulation delegated promotion authority to pay grades E-5 and E-6 to field grade commanders of any organization which is authorized a commander in the grade of lieutenant colonel or higher.  Temporary promotions to pay grades E-4 through E-7 were made based on quota allocations which required recommendation by the unit commander and promotion eligibility based on time in grade, time in service, the proper military occupational specialty (MOS), a score of 110 or higher on the latest primary MOS test, assignment in the next lower pay grade than that of the unit position vacancy; physical qualification, and completion of eighth grade or GED equivalent for promotion to E-5.  The recommendation for promotion could be disapproved at any level and returned, and waiver of certain promotion eligibility requirements was allowed.  Eligible soldiers were considered by a local selection board comprised of at least three voting members which could select sufficient personnel for promotion to fill authorized position vacancies projected in the unit for a two-month period.  The soldiers selected for promotion were placed on a lineal promotion list based on the number of points received from the promotion board and were promoted based on vacancies in the unit for which they qualified.

Army Regulation 600-200 also provided in pertinent part the conditions under which a soldier was not promotable.  An individual was not in a promotable status if he or she was absent without leave, under court-martial charges, serving a sentence resulting from a court-martial, under discharge proceedings, the subject of a flagging action under Army Regulation 600-31, awaiting or undergoing reclassification for inefficiency or disciplinary reasons, within 60 days of retirement, undergoing punishment under Article 15 UCMJ which precludes favorable personnel action, or under a bar to reenlistment.

Army Regulation 635-200 (Enlisted Personnel), dated July 1966 with changes 1 through 45, was in effect at the time of the applicant’s service.  The regulation governed separation of enlisted personnel.  Paragraph 5-33 provided for early separation of personnel denied reenlistment under qualitative management.  Specifically, an individual who was not eligible to reenlist upon expiration of his or her term of service (ETS) because of the provisions of Chapter 4 of Army Regulation 600-200 (Enlisted Personnel Management System) may upon their request be separated up to six months prior to ETS notwithstanding any existing service obligation which will not be fulfilled by such an early release date.  The regulation required that individuals requesting early separation under paragraph 5-33 must sign a statement acknowledging early separation was for their own convenience, that recoupment of unearned portions of variable and reenlistment bonuses was required, that transition training was not authorized, and that enlistment at a later date was not permitted.  The regulation also specified that the authority for separation, “para 5-33, AR 635-200 and SPN 430”, will be included in directives and orders separating the soldier.

Chapter 4 of Army Regulation 600-200 (Enlisted Personnel Management), dated 24 March 1965 with changes 1 through 47, set forth policy and prescribed procedures for denying reenlistment under the Qualitative Management Program (QMP) at the time of the applicant’s service.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Therefore, all enlisted personnel must establish their eligibility to remain in the Army by continually demonstrating their efficiency and developing their potential for further service.

Army Regulation 635-5 (Separation Documents), dated 23 January 1967 with changes 1 through 15, established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that the regulatory authority and reason for the separation will be entered in item number 11C of the DD Form 214.  The narrative reason for separation is based on the governing Army regulation and the Separation Program number (SPN) as shown in Appendix A of Army Regulation 635-5.  The SPN 430 listed in Appendix A of this regulation specifies the narrative reason for discharge is “Enlisted Personnel—Early separation of personnel denied reenlistment under Qualitative Management Program ” and that the authority for discharge is “Section XIV, chap. 5, 
AR 635-200”.

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) cited by the applicant became effective 1 December 1991.

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.  The Board noted the applicant’s contention that his chain of command unjustly failed to promote him by not properly applying the provisions of Army Regulation 600-8-19.  This contention is without merit because the applicant’s promotion status in 1970 and 1971 was governed by Army Regulation 600-200, not by Army Regulation 600-8-19 which governs the Army’s current promotion system.  

2.  The Board also noted that the applicant’s contention that he was eligible to regain his promotable status and should have been promoted with his peers in March 1970.  However, the applicant has presented no evidence of record which shows that his chain of command had recommended him for promotion or that the promotion authority had placed him on a local promotion list.  

3.  Furthermore, once the applicant received punishment under Article 15, he was in a non-promotable status.  He acknowledged this fact in his appeal of the Article 15, but he has not provided the Board with any evidence that his chain of command lifted the suspension of favorable personnel action resulting from the Article 15 or intended to promote him prior to his departure from Vietnam.

4.  The Board noted the applicant’s argument that an award of the Army Commendation Medal, a letter of commendation and an award of the Good Conduct Medal justify his request for promotion to E-5.  Notwithstanding these favorable actions, the facts remain that he committed acts of indiscipline and demonstrated poor performance.  Therefore, the applicant’s chain of command did not recommend him for promotion because, through his own actions, he demonstrated that he was not among those “outstanding individuals with great potential for leadership or increased responsibility in their chosen fields.” 

5.  In summary, there is no evidence the applicant’s chain of command arbitrarily, capriciously, or unjustly denied him promotion to pay grade E-5.  Therefore, the applicant is not entitled to retroactive promotion to pay grade E-5 or back pay and allowances.

6.  The Board also noted the applicant’s request to change the SPN currently shown on his DD Form 214 to a more favorable separation code.  Although the applicant’s discharge processing documents are not present in his personnel records, the Board concluded that the basis for discharge in this case is appropriate, particularly in view of the two nonjudicial punishments received by the applicant in a six-month period and the adverse EER he received just prior to separation.  Therefore, in the absence of compelling evidence to the contrary, the applicant’s discharge is correct as currently constituted and he is not entitled to a change in the reason, authority or the SPN currently shown on his DD Form 214.

7.  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.

8.  In view of the foregoing, there is no basis for granting the applicant's requests.

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

__ENA__  __JHL___  ___CLG__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040291	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000921	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19711230	
DISCHARGE AUTHORITY	AR 635-200, PARA 5-33.  .  .  .  .  	
DISCHARGE REASON	NONPROMOTABLE UNDER QMP	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	100.000	
2.		
3.		
4.		
5.		
6.