PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            14 November 2000
	DOCKET NUMBER:   AR2000043884

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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 promotion to Staff Sergeant/E-6 (SSG/E-6) be reinstated with an effective date of 1 February 2000. 

3.  The applicant states, in effect, that he disagrees with the government’s position that he was in a nonpromotable status because he was ineligible for reenlistment when he appeared before the promotion board on 12 December 1999.  He indicates that his policy argument is rooted in regulatory guidance contained in Army Regulations 600-8-19 (Enlisted Promotions) and 
600-60 (Physical Performance Evaluation System-(PPES)), which he claims provide support for his being allowed to compete for promotion while undergoing the Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) process.  

4.  He cites a parallel situation contained in the promotion regulation that allows members to compete for promotion to Sergeant and to be placed on the promotion list in a nonpromotable status pending graduation from the Primary Leadership Development Course (PLDC).  In this case, the PLDC requirement cannot be waived but the member is still allowed to compete for promotion and be placed on the list in a nonpromotable status pending their completing the prerequisite.  He contends this rationale could also apply in MMRB cases, a member should be allowed to compete and be placed on the list but remain nonpromotable until the MMRB process is complete. 

5.  He also argues against the finding that he lost MOS qualification due to his physical profile and MMRB recommendation.  He indicates that the promotion regulation itself states specifically that soldiers are considered to be physically qualified for promotion unless determined otherwise by a Physical Evaluation Board (PEB).  He also contends that the PPES regulation indicates that the MMRB evaluation process is not intended to be used as a quality assessment of leadership, degree of technical skill, promotion potential and that MMRB actions and recommendations should only be based on a soldier’s physical ability to reasonably perform in a primary MOS or specialty.  They do not have the capability to determine medical fitness.  

6.  He also states that the PPES regulation indicates that soldiers, regardless of their permanent medical condition and assignment limitations, who can physically perform the full range of duties required in their MOS worldwide and under field conditions will be considered deployable and the MMRB is designed to determine a soldier’s deployability.  He claims that he can perform most of the tasks related to his MOS in a worldwide field environment and his reclassification was based on his ability to perform most soldierly duties due to his profile.  

7.  The applicant also contests the government position that the MMRB process is not complete until final action is taken by either Department of the Army (DA) or the United Sates Army Physical Disability Agency (USAPDA).  First he points out that the MMRB is an administrative board convened by the General 
Court-Martial (GCM) convening authority and in his case when the GCM approved the findings of the MMRB on 16 December 1999, the action should have been final.  Further, he points out that when the MMRB recommends a soldier be reclassified, the soldier must then submit a request for reclassification, which he contends makes this a voluntary reclassification action by default.  In addition, the promotion regulation states that a soldier pending reclassification will compete for promotion in their current MOS until they are reclassified.  Upon reclassification, they will commence to compete in the new MOS.  MMRB proceedings in his opinion would only continue in cases where soldiers are recommended for appearance before a PEB.

8.  Additionally, the applicant contends that the MMRB action in his case was completed on 16 December 1999 when the GCM convening authority signed the endorsement approving the MMRB proceedings.  While the PPES regulation indicates that soldiers pending MMRB action may not reenlist, it also indicates that a soldier, if otherwise eligible, may extend until a final determination is made by the MMRB.  It further states that if retained in MOS, reclassified into another MOS, or found fit by the USAPDA, reenlistment will not be denied solely because of MMRB processing.  This he claims means that once the MMRB makes their recommendation and this is approved by the GCM convening authority the action is returned to the applicant for him to take appropriate action in the form of returning to duty or submitting a voluntary reclassification request.  

9.  The applicant also argues that the promotion regulation does not specifically address MMRB actions and does not specifically restrict a soldier from competing for promotion while pending MMRB action.  In his opinion, it appears that the regulations are not intended to preclude a member from competing for promotion but only to ensure they are not promoted while undergoing the process.  The promotion regulation refers to other regulations, is ambiguous in many aspects, and not clear, even to personnel people who claim to be experts.  Finally, he states that when there are controversies in the regulation that cause doubt, the benefit of that doubt should be resolved in favor of the soldier.

10.  The applicant’s military records show that he is currently serving on active duty, in the rank and pay grade of Sergeant/E-5, and that he is assigned to the 21st Theater Support Command, Kaiserslautern, Germany.  

11.  On 21 June 1999, a DA Form 3349 was prepared that confirms the applicant was assigned a permanent physical profile of 3 in the lower extremities area.  This profile was given as a result of the applicant’s medical condition of chronic mechanical low back pain. 

12.  On 7 December 1999, an MMRB convened to determine whether or not the applicant should be retained in his MOS of 63W (Wheel Vehicle Repairer), placed on a probationary period for further evaluation, reclassified into another MOS, or referred to the Army’s Physical Disability System.  Based on his desire to remain in the Army, the chain of command’s strong recommendation, and his outstanding duty performance, the MMRB recommended that the applicant be reclassified into a new MOS with physical requirements commensurate with his physical profile.  

13.  On 12 December 1999, the applicant appeared before the SSG/E-6 promotion selection board.  As a result of this appearance he was recommended for promotion and added to the SSG/E-6 promotion list in his MOS of 63W.    

14.  On 16 December 1999, the MMRB convening authority reviewed the findings and recommendations of the MMRB and directed that the applicant be reclassified into a new MOS commensurate with the needs of the Army and the physical condition of the soldier.  

15.  On 21 January 2000, Orders Number 020-27, was published by the 
90th PSB, APO Army Europe (AE) 09054.  This order effected the applicant’s promotion to SSG/E-6 in MOS 63W, effective 1 February 2000.  On 19 February 2000, Orders Number 049-21, issued by the same command, revoked the original promotion order citing Army Regulations 600-8-19 and 600-8-105 as the authority for taking the action.  

16.  Three months later, on 5 May 2000, Orders Number 126-21 also issued by the 90th PSB, again promoted the applicant to SSG/E6 in MOS 63W, effective 
1 February 2000, and on 19 May 2000, Orders Number 140-41 issued by the same unit revoked this promotion order.  The authority cited for this revocation action was Army Regulation 600-8-19, paragraphs 1-10l and 3-26; in addition, to Army Regulation 601-280, paragraph 3-8e(1).  This order contained additional instructions that indicated that the applicant could request de-facto status, under the provisions of paragraph 1-17, Army Regulation 600-8-19, which would allow him to keep any pay and allowances received as a SSG.  

17.  The applicant’s community commander submitted a memorandum in support of the applicant’s request.  He states that he strongly supports the correction of military records action to reinstate the applicant’s promotion to SSG.  He indicates that the applicant’s performance of duty as the battalion operations NCO had been outstanding and he assures everyone that the applicant earned his promotion to SSG.  He further indicates that the applicant consistently served in an exemplary manner and did everything asked of him to include meeting the requirements for promotion and reenlistment and for reclassification and retention.  In short, the applicant met the Army requirements, but the Army is failing to meet its requirements to him and his family.  Finally, he requests that this application for promotion reinstatement be approved and comments that to do otherwise would be unconscionable.

18.  In connection with the processing of this case an advisory opinion was requested of and provided by the Promotions Branch of the Army Personnel Command (PERSCOM).  They opined that the applicant was in nonpromotable status as early as 6 October 1999 based on his being ineligible for reenlistment and therefore, he was not eligible to compete for promotion to SSG.  In support of their opinion, they cite the provisions of paragraph 3-8e of Army Regulation 601-280, which they say states that soldiers pending MMRB are ineligible for reenlistment and Army Regulation 600-8-19, which states that soldiers who are ineligible for reenlistment are in a nonpromotable status.  They indicate the applicant was in a nonpromotable status as early as 6 October 1999 because that is when he was referred to the MMRB for processing.  Thus, they found his promotion board appearance on 12 December 1999 and subsequent promotion to SSG, effective 1 February 2000 were invalid actions.  

19.  In support of their opinion, PERSCOM officials further commented that the MMRB is but one process of the PPES and once the MMRB makes a decision, their findings are forwarded to the Personnel Services Battalion (PSB) for further processing.  In this case the correspondence from the MMRB, dated 16 December 1999, informed the applicant that his case was being returned for continued processing through his chain of command; to act on their recommendation for reclassification recommendation.  Based on this they found that the MMRB decision to recommend reclassification left the medical evaluation process open and ongoing which left the applicant in a nonpromotable status until his reclassification was ultimately approved.  

20.  PERSCOM officials also indicate that once the applicant’s reclassification to MOS 92Y (Supply Specialist) was approved on 28 March 2000, he was again eligible to appear before a promotion board and to compete for promotion in his new MOS effective in May 2000.  Finally, they recommend that the applicant’s request for reinstatement of promotion to SSG be denied.  
21.  The applicant was given the opportunity to respond to the PERSCOM advisory opinion and did so.  In his rebuttal letter, he indicates the policy arguments are well documented in his application packet and his personal feelings on the case.  He begins by indicating that it is evident how many times he was promoted and demoted and also that he did nothing improper or wrong in connection with these actions.  His argument now is no longer based on whether or not the regulations are right or wrong, but rather on the basis that he did nothing wrong in the process and should not be held accountable for the administrative errors that took place in connection with his promotion. 

22.  The applicant contends that the PSB, the field personnel managers of the semi-centralized promotion system, should have known the proper promotion policy before he was allowed to appear before the promotion board and promoted the first time.  Further, he claims it was inexcusable that after they revoked his promotion the first time and advised him what was wrong, they again promoted him because they determined he was eligible for the promotion, only to again revoke his promotion.  He believes that they had an obligation to know what they are doing and at the least to get it right after the first time.  In his opinion, he did nothing wrong and the PSB should bear the responsibility for the administrative errors that took place in his case.  He contends he worked very hard to earn his promotion and knows he is a good Noncommissioned Officer (NCO) and does not deserve to be forced to suffer the injustice caused by these administrative errors.  

23.  Army Regulation 600-8-19 (Enlisted Promotions) prescribes the Army promotion policy for enlisted personnel.  Paragraph 1-10l (nonpromotable status) indicates, in effect, that soldiers undergoing a medical evaluation to determine their eligibility to perform duties in a recommended MOS are in a nonpromotable status and it stipulates that once a determination is made by a Physical Evaluation Board that they are not medically qualified to perform duties in the MOS they will be removed from the promotion standing list.  

24.  Chapter 3 governs the Sergeant (SGT) and SSG promotion system and indicates that that Field Grade commanders in units authorized a commander in the grade of Lieutenant Colonel (LTC) or higher have promotion authority to the grades of SGT and SSG; however, the promotions workcenter maintains the recommended list and issues the orders.  It also specifies that board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotions occur in the field in a decentralized manner.  

25.  Paragraph 3-29 contains the rules for processing members who are reclassified while on a promotion standing list.  It states, in pertinent part, that members will continue to compete in their current MOS until the month of the reclassification.  

26.  Paragraph 3-31 contains the rules for removing members from a promotion standing list.  It states, in pertinent part, that soldiers undergoing proceedings that may result in discharge will be removed from the promotion list; however, it indicates specifically that members processing for a medical evaluation will remain on the promotion standing list unless separated.  It also allows for removing a soldier from the promotion list if found unfit by a medical board.  

27.  Army Regulation 600-60 (Physical Performance Evaluation System) establishes operating procedures for the PPES that will upgrade the physical quality of the force and ensure each soldier is physically qualified to perform in his or her MOS or specialty code worldwide and under field conditions.  

28.  Paragraph 2-1 (evaluation process) indicates that the PPES is a program designed to evaluate soldiers with permanent medical conditions or impairments to determine if they can perform satisfactorily in their MOS or specialty code in a worldwide field environment.  MMRB is established to serve as an administrative screening board to make this determination.  It also states, in pertinent part, that the MMRB evaluation process is not intended to be used as a quality assessment of leadership, degree of technical skill, or promotion potential.  Finally, this paragraph mandates that all soldiers who are issued a permanent physical profile with a numerical factor of "3" in one or more of the physical profile serial (PULHES) factors will be mandatorily referred for evaluation to an MMRB.

29.  Paragraph 2-5 (enlisted member reenlistment) states that soldiers pending MMRB action may not reenlist.  The soldier, if otherwise eligible, may be voluntarily extended prior to Expiration Term of Service (ETS) until a final determination is made by the MMRB.  If retained in PMOS, reclassified in another MOS, or found fit, reenlistment will not be denied solely because of MMRB processing.  

30.  Paragraph 3-6 (military personnel office action) indicates that if the MMRB recommends reclassification a copy of the MMRB proceedings and recommendation for reclassification will be filed in the action pending section of the Military Personnel Records Jacket (MPRJ) and upon receipt of the final decision from PERSCOM this copy will be transferred to the permanent section of the MPRJ and a copy will be forwarded to the member’s Official Military Personnel File (OMPF). 

31.  Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program and sets forth policies, command responsibilities for the immediate reenlistment or extension of enlistment of soldiers currently serving in the Active Army.  Paragraph 3-8e (Medical and Physical Fitness) states, in pertinent part that soldiers pending MMRB action will not be reenlisted until the MMRB action has been finalized; however, they may be extended for the minimum time necessary to complete the MMRB action. 

CONCLUSIONS:

1.  The Board concedes that the promotion policy as outlined by PERSCOM in their advisory opinion is correct and their finding that the applicant was in a nonpromotable status when he was selected for and promoted to SSG is the proper interpretation of that regulatory policy.  

2.  However, the Board finds the primary issue in this case is whether or not a compelling argument has been made which supports granting an exception to policy based on the fact that the decision of the field commander, to allow the applicant to be recommended for, compete for, and be selected for promotion, was made in good faith based on what could have been construed to be valid promotion policy.

3.  Notwithstanding the validity of the findings contained in the PERSCOM advisory opinion, a review of the regulatory cites quoted in support of their conclusions reveals a significant amount of contradictory regulatory guidance and misleading information in regard to the promotion policy pertaining to personnel competing for and qualifying for promotion while undergoing evaluation by a MMRB.  

4.  The Board finds the specific regulatory language contained in the PPES regulation which states, “reenlistment will not be denied solely because of MMRB processing”, could easily have been interpreted by a field commander to mean that once the MMRB recommends reclassification a member is no longer ineligible for reenlistment, and therefore, is no longer in a nonpromotable status.  

5.  In addition, the promotion regulation contains language that indicates that members will not be removed from a promotion list while undergoing medical evaluation and that members pending reclassification will continue to compete in their current MOS until the month of the reclassification.  This language could also have been interpreted by the promotion authority as being applicable in the applicant’s case.

6.  The contradictory nature of the regulatory promotion policy becomes evident when viewing the actions taken in this case by the 90th PSB, PERSCOM’s responsible agent in semi-centralized promotion matters, which is the local proponent for SGT and SSG promotion policy.  In the applicant’s case the 
PSB twice published orders promoting the applicant based on the belief that he was qualified for promotion and twice published orders revoking those promotions once they were advised by higher authority that the applicant was not eligible for promotion.  

7.  It is apparent that the field commander, who exercised promotion authority in this case, believed the applicant was eligible to compete for promotion after the MMRB reclassification recommendation was made on 7 December 1999.  Further, it is evident that this commander considered the applicant fully eligible for promotion in his current MOS when he met the promotion cut-off score on 
1 February 2000, while he was still pending reclassification. 

8.  The Army grants promotion authority for SGT and SSG promotions to commanders in the grade of LTC or higher.  In this case the applicant was recommended for, selected for, and promoted by the commander exercising promotion authority in good faith based on what he believed was a valid interpretation of the regulation at the time. 

9.  The support for the applicant’s promotion reinstatement on the part of the promotion authority is evidenced by the memorandum of support provided to this Board by the applicant’s battalion commander.  It attests to the applicant’s qualifications of promotion and confirms his outstanding performance of duty.  It further indicates that the applicant was not responsible for the errors in his promotion and he and his family should not suffer the injustice for the promotion revocations.  

10.  The evidence or record shows that the field commander and promotion managers, PSB personnel, believed the applicant was fully qualified for promotion based on their interpretation of the regulatory promotion policy and effected the promotion in good faith based on that belief.  Further, it is obvious from the strong statement of support for reinstatement provided by the applicant’s battalion commander that the promotion authority in this case still believes the applicant was fully qualified and earned his promotion to SSG.

11.  In the opinion of the Board, given the facts and circumstances of this case, it would be unjust for the applicant to suffer the consequences of the administrative errors made in this case and that relief is warranted as an exception to policy.  Therefore, the Board concludes, in the interest of justice and equity, that the applicant’s SSG promotion should be reinstated, effective 1 February 2000 and that he should be provided all back pay and allowances due as a result of this action.  

12.  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 showing that the individual concerned was promoted to SSG, effective 1 February 2000, as an exception to policy.

2.  That the individual concerned be provided all back pay and allowances due as a result to the correction outlined in the preceding paragraph. 

BOARD VOTE:  

___tlp___  ___slp___  ___mw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043884	
SUFFIX		
RECON		
DATE BOARDED	2000/11/14	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.