MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 January 2001   
	DOCKET NUMBER:   AR2000041743

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman		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, reinstatement of his promotion to pay grade E-6 with appropriate back pay and allowances.  

APPLICANT STATES:  In effect, that he had been selected and promoted to pay grade E-6 by his U.S. Army Reserve (USAR) unit prior to reporting for active duty in an Active Guard/Reserve (AGR) status.  However, he states he was misinformed about being promoted and was told that he could not be promoted and accept his AGR tour.  He contends that his real choice was either to accept the AGR tour or be unemployed.  With a family he had no choice but to accept the AGR tour which meant he was not promoted.  He notes that he always assumed that he would be able to retire in the higher grade when the time came. The applicant states that he was ultimately retired by reason of disability in 1995 but his petition to be retired in pay grade E-6 was denied.  He notes that his petition was supported by the “First Sergeant of DCSPER” but that the “General’s Staff IG didn’t see it that way and ordered the revocation of [his] promotion orders of 1987.”

EVIDENCE OF RECORD:  The applicant's military records were not available to the Board.  Information contained herein was reconstructed solely from documents provided by the applicant.

On 12 July 1987, with the support of his USAR unit commander, the applicant, a member of a USAR Troop Program Unit (TPU), authenticated an application for active duty under the AGR program.  His commander noted in his 12 July 1987 letter of recommendation that he “anticipated” that the applicant would be recommended for promotion to pay grade E-6 in August 1987.  The applicant stated in his application to this Board that although his application was dated 
12 July, he “held off submission till August 87” because he “wanted to wait for the results of the promotion board.”

According to a unit promotion list, provided by the applicant, he was recommended for promotion to pay grade E-6 by a promotion board which convened on 13 September 1987.

On 19 October 1987 orders were issued by the U.S. Army Reserve Personnel Center in St. Louis ordering the applicant to active duty for a period of 3 years.  His orders note that he was being ordered to active duty in pay grade E-5 with a reporting date of 15 November 1987 for "AGR entry training and inprocessing” with an ultimate assignment at Fort Wadsworth, Staten Island, New York.

On 13 November 1987 his active duty orders were amended to reflect a reporting date of 3 January 1988.

The applicant was promoted to pay grade E-6, in his capacity as a USAR TPU member, on 20 December 1987.

Although not included with documents provided to the Board it appears the applicant entered active duty in pay grade E-5 on 3 January 1988 and on 
1 March 1988 submitted a request for a “grade determination.”  He noted in a self-authored statement that he found out about an AGR position at the 242nd Military Intelligence Battalion in June 1987 and submitted his application in August 1987.  He states that he was “in voice contact” with a sergeant who told him that as long as he was promoted to E-6 before his reporting date for active duty he “would be good to go” and that amended orders would “reflect the change in grade.”  He notes that had he known that he needed to wait until he was promoted to apply for the AGR tour in order to enter active duty as an E-6 he would have done so.

The applicant’s petition to serve in pay grade E-6 was denied on 25 March 1988. The denial noted that the applicant had been misinformed and that it was never a policy to “recognize a promotion as being valid if the soldier was promoted between the time the packet was boarded and the effective date of entry on tour.” The denial indicated that applicant “should have been informed that he could accept the tour and enter at grade E-5 or decline the tour and accept the TPU promotion.”  The applicant was given the option of remaining on tour as an E-5, in which case his promotion orders would be revoked, or returning to his unit for promotion.

As noted in the applicant’s request, he elected to remain on active duty and, according to his statement in his application, was retired by reason of disability in pay grade E-5 in 1995.  Orders revoking the applicant’s promotion to pay grade E-6 were issued on 6 July 1995 citing the 25 March 1988 grade determination denial as the basis for the revocation action. 

Army Regulation 140-158, then in effect, states that there are three separate and distinct promotion systems designed to support each of the manpower requirements of the specific personnel systems.  These systems support soldiers assigned to troop program units, soldiers serving on active duty in an AGR status, and IRR, IMA, and Standby Reserve soldiers.  To support the unique requirements of each of the systems the procedures and criteria for promotion vary.  The systems are designed to provide, through an internal competitive process, promotion of the best qualified soldiers to fill manpower requirements within the specific system.  TPU soldiers compete against other TPU soldiers to fill TPU duty positions, AGR soldiers compete against other AGR soldiers to fill AGR duty positions and IRR, IMA, and Standby Reserve soldiers compete with 

each other to fill mobilization requirements.  The promotion of a soldier within one system for the specific purpose of providing the soldier with a higher grade on entry into another system, or against a duty position in another system, is prohibited.  Such a practice avoids the competitive process and creates an injustice for all eligible soldiers within the system.  For example, when a TPU soldier applies for entry on AGR status and is approved, the soldier will be ordered to active duty in the grade he or she held at the time of application.  A promotion under the TPU system will not authorize a higher grade in an AGR status although the promotion is purportedly effective prior to entry on, or application for, AGR status.

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.  While information available to the Board is limited to that provided by the applicant the evidence does confirm that the applicant was serving in pay grade E-5 at the time of his application for an AGR position and as such was ordered to active duty in that grade, in spite of the fact that he may have been promoted to pay grade E-6 under the TPU systems just days prior to his entry on active duty.  The delay in his reporting date from November 1987 until January 1988, after the effective date of his promotion, clearly violates the provisions of Army Regulation 140-158.

2.  The applicant knew in March 1988 that if he wished to remain in the AGR program he would be serving in pay grade E-5 and that his TPU promotion orders would be revoked.  The fact that orders revoking the promotion were not issued until 1995 does not create any error or injustice and merely corrects what was likely an earlier administrative oversight.  There is no evidence, and the applicant has not provided any, that he ever actually served or was paid in pay grade E-6 and the delay in revoking the promotion order does not serve as a basis to valid the promotion nor justify any entitlement to pay.

3.  The applicant’s contention that had he known, he would have waited to submit his application for the AGR program until after his promotion to pay grade E-6 is without foundation.  The applicant was given the opportunity to return to his TPU unit and accept the promotion to pay grade E-6.  He could have accepted that offer and then submitted a new AGR application.  However he chose instead to remain in the existing AGR position at the lower grade, a choice he likely made knowing full well another AGR position might not be available at a subsequent date, just as one might not have been available had he “held-off” initially.

4.  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 that requirement.

5.  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

__emw___  ___amc__  ___dph_  DENY APPLICATION

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

INDEX

CASE ID	AR2000041743	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010111	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.