MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 October 2000
	DOCKET NUMBER:   AR2000041402

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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, promotion to the pay grade of E-9 and advancement on the Retired List.

APPLICANT STATES:  In effect, that he was unjustly removed from the promotion list for promotion to the pay grade of E-9 and attendance at the Sergeants Major Academy without any written notification or justification.  He further states that allegations were made against him but no charges were ever preferred.  It was only after he was preparing for attendance at the Sergeants Major Academy that his orders were revoked and he was on his way to retirement instead.  He goes on to state that he was done an injustice and the Board should look into the matter.

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

He was initially inducted on 1 September 1970 and served until he was honorably released from active duty (REFRAD) on 22 April 1972 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).

He enlisted in the Regular Army 6 April 1973 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-8 on 1 September 1991.

He was selected for promotion to the pay grade of E-9 and attendance at the Sergeants Major Course by the September 1994 E-9 Selection Board and was assigned a sequence number of “9” in military occupational specialty 88Z.

On 15 March 1995, orders were published reassigning the applicant to Fort Bliss, Texas to attend the Sergeants Major Course for the period 9 August 1995 to 12 June 1996.

On 18 May 1995, the applicant’s commander initiated a recommendation to bar the applicant from reenlistment.  He cited as the basis for his recommendation that the applicant made a false official statement to his commander and a criminal investigative division (CID) agent during a criminal investigation.  The applicant indicated that he would submit a statement in his own behalf; however, the record is void of any such statement. 

The appropriate authority (a major general) approved the bar to reenlistment on 25 June 1995 and the applicant indicated that he would appeal the bar and did so on 12 July 1995.  His appeal was forwarded to the Department of the Army and was denied by the Department on 11 September 1995.  His bar to reenlistment was again reviewed on 20 September 1995 and the commander determined that the bar should remain in effect.

Meanwhile, the orders reassigning him to Fort Bliss were revoked on 1 August 1995. 

Although the Application for Voluntary Retirement (DA Form 2339) is not present in the available records, on 30 September 1996, the applicant was REFRAD and was transferred to the Retired List in the pay grade of E-8, effective 1 October 1996, for length of service.  He had served 25 years, 1 month and 17 days of total active service.

In the processing of this case a staff member contacted officials at the Total Army Personnel Command (PERSCOM) Promotion Branch to ascertain what happened in the applicant’s case.  Officials at the PERSCOM indicate that the applicant was administratively removed from the E-9 promotion list based on his ineligibility to attend the Sergeants Major Course.  In addition, the available records indicate that he was ineligible to attend the course due to his appeal of a bar to reenlistment being denied and there is further indication that he received a letter of reprimand as well.  Records also indicate that he was under a suspension of favorable personnel actions (Flag) for adverse action from 10 November to 8 December 1994 and that another Flag was initiated for adverse action on 26 April 1995.

Army Regulation 601-280 provides the policies and procedures for the imposition of bars to reenlistment.  It states, in pertinent part, that a locally imposed bar to reenlistment, once approved by the appropriate authority, will be reviewed every 6 months.  After the second review, if removal is not recommended, separation action will be initiated.

Army Regulation 600-8-19 serves as the authority for enlisted promotions.  It states, in pertinent part, that personnel who have a bar to reenlistment imposed against them, or an approved retirement application, are considered to be in a non-promotable status.  Commanders will notify Department of the Army (DA) officials when personnel who are on a DA Centralized Promotion Selection List to the pay grades of E-7 through E-9 are in a non-promotable status.  

That regulation also provides that promotion to the pay grade of E-9 is linked to successful completion of the Sergeants Major Course and that failure to complete the course of instruction will result in the removal of an individual’s name from the promotion selection list. 

Army Regulation 351-1 provides the policies and procedures for individual military education and training.  It states, in pertinent part, that the prerequisites for attendance at the Sergeants Major Course is that the individual be serving in the pay grade of E-8 and has not been denied reenlistment through a locally or DA imposed bar to reenlistment.

Title 10, United States Code, Section 3964, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held on active duty, as determined by the Secretary of the Army, upon completing 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

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.  Inasmuch as the Board is not an investigative agency and since the applicant has not provided any evidence to support his contention that he was unjustly removed from the list to attend the Sergeants Major Course and the E-9 Promotion Selection List, the Board must presume that the actions taken by the Department at the time were in accordance with the applicable regulations in effect at the time. 

2.  The Board must also presume, in the absence of evidence to the contrary and based on his retirement for length of service, that his request was submitted voluntarily and that he elected to retire instead of attempting to overcome the bar to reenlistment.  Furthermore, until such time as he overcame the bar to reenlistment and completed the Sergeants Major Course, he remained in a    non-promotable status.  

3.  The Board also finds that since he had a locally imposed bar to reenlistment, he was ineligible to attend the Sergeants Major Course until such time as he overcame the bar.  Therefore, his orders were properly revoked.

4.  While the circumstances that led to his bar to reenlistment and subsequent retirement are not present in the available records, the Board is inclined to believe that given his rank and years of service, the applicant was aware of his right to seek assistance from the local Judge Advocate General (JAG) office, the Inspector General’s (IG) office, or to request a commander’s inquiry if he felt that he had been unjustly denied school attendance and promotion.  There is no indication in the available records to show that he made an effort to do any of these at the time.  Therefore, given the passage of time and the lack of evidence to the contrary, the Board is unable to find merit in his contentions. 

5.  The Board finds that there is no indication in the available records to show that he was actually promoted to the pay grade of E-9, that he was unjustly denied promotion or that he satisfactorily served in that pay grade prior to being placed on the Retired List.  Accordingly, there is no basis to do so at this time.

6.  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

___js____  ___rjw___  __rtd____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041402	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/03	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/adv on ret list	
2.		
3.		
4.		
5.		
6.