PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 September 2000                   
	DOCKET NUMBER:   AR2000044061

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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 that he be promoted to Staff Sergeant (SSG), E-6 with the appropriate date of rank and all due pay and allowances.

3.  The applicant states that the letter advising him he met the cutoff score for promotion in military occupational specialty (MOS) 11B (Infantryman) and could request a noncommissioned officer education system (NCOES) waiver was filed in his personnel records and not given to him.  He did not learn of the letter until after he graduated from the 95D (Criminal Investigation Command Special Agent) course when it was too late to request the waiver.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 6 February 1991.  He completed basic training and advanced individual training and was awarded MOS 11B.  He was promoted to Sergeant (SGT), E-5 on         1 September 1995.  Around September 1995, he began on-the-job training as a 95B (Military Police).  Around April 1996, he began on-the-job training as a 95D.  On an unknown date, he was recommended for promotion to SSG in MOS 11B and placed on a promotion standing list.  

5.  On an unknown date, the applicant was scheduled for the 11B Basic NCO Course (BNCOC) to begin on 23 June 1998 and graduate 25 November 1998.  The class was cancelled when the applicant was approved for reclassification and training in MOS 95D.

6.  On 19 February 1998, the applicant began the 95D course at Fort McClellan, AL.  

7.  On 1 May 1998, the applicant met the cutoff score for promotion to SSG in MOS 11B.  The Fort McClellan, AL Student Processing Branch prepared a Memorandum for Military Personnel Office Gaining Command (of the applicant) dated 14 May 1998.  The memorandum indicated that the applicant had met the cutoff score for 1 May 1998 but had not yet graduated from BNCOC.  Soldiers who met their cutoff score but were not graduated from BNCOC would have an effective date for promotion of the date of BNCOC completion.  NCOES waivers must be submitted to the U. S. Total Army Personnel Command (PERSCOM).  In November 1998, the NCO In Charge of Promotions, Fort McClellan prepared a memorandum for record stating, in effect, that the 14 May 1998 memorandum was forwarded to the applicant.  However, in January 1999 the Department of the Army Inspector General (DAIG) found that the memorandum was produced late, it was not made available to the Military Police School or the applicant while he was attending the 95D course, that it was filed in his student file until 4 June 1998, and that Fort McClellan had a systemic problem with all student personnel documents.  

8.  On 4 June 1998, the applicant graduated from the 95D course and was reclassified from 11B to 95D.  He discovered the 14 May 1998 memorandum but was advised his gaining unit would resolve the promotion issue.  In January 1999, apparently waiting until after the DAIG responded to his request for assistance, he requested an NCOES waiver.

9.  PERSCOM disapproved his request because it was not submitted within 30 days of his making the cutoff score.  He apparently resubmitted the request but it was returned without action since, effective 1 June 1999, NCOES waivers were no longer being granted.

10.  The applicant began the 95D BNCOC on 19 January 1999 and graduated on 26 March 1999.

11.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  In pertinent part, it provides that, effective 1 October 1992, soldiers were required to be graduates of BNCOC prior to promotion to SSG.  Soldiers are allowed to compete for promotion to SSG but could not be promoted to SSG until completion of BNCOC.  Soldiers who met a cutoff score for SSG after 1 October 1992, but were not BNCOC graduates, would be promoted effective the date of graduation from BNCOC.  Soldiers could request an exception to policy to this requirement.  Approval of this exception gave them the effective date and date of rank of the graduation date of the first available class after they met the cutoff score, even if they did not attend that course, as long as attendance was precluded through no fault of their own and they eventually did graduate from the next available class they were able to attend.

12.  On 18 August 2000, PERSCOM informed the Board that the first graduating 11B BNCOC course after the applicant made the cutoff score would have been 28 July 1998.  However, had PERSCOM received his NCOES waiver in time they would not have approved a promotion date of 28 July 1998.  Since the applicant had previously been scheduled for the 23 June 1998 course, they probably would have approved a promotion date of 25 November 1998, the graduation date of the course he had been scheduled for.  

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  The DAIG confirmed that the 14 May 1998 memorandum informing the applicant’s “gaining command” that he met the 1 May 1998 cutoff score for promotion to SSG and could request an NCOES waiver was never provided to the applicant.  The first time he knew of the letter was 4 June 1998 (already too late to meet the 30-day window), when he graduated from the 95D course, at which time he was advised that his gaining unit would resolve the promotion issue.
3.  It appears the applicant waited until receiving the DAIG findings to request an NCOES waiver.  By that time it was well past the 30-day window and his request was disapproved.  PERSCOM has indicated that had he requested the waiver in time, he most likely would have been promoted to SSG with an effective date and date of rank of 25 November 1998, the graduating date of the BNCOC class he was originally scheduled to attend.  The applicant did meet the requirement of eventually graduating from a BNCOC class in March 1999.

4.  The Board concludes that it would be a matter of equity to show he was promoted to SSG with an effective date and date of rank of 25 November 1998.  Granting an effective date and date of rank of 28 July 1998 (the date of the first graduating 11B BNCOC course after he met the cutoff score) would not be appropriate.  The Board notes that were it not for his voluntary reclassification to 95D he would have attended the course graduating 25 November 1998.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by: 

     a.  showing that the applicant requested an NCOES waiver on 14 May 1998 and that his request was approved;

     b.  showing that, as a result of the approval of his request for NCOES waiver, the applicant was promoted to Staff Sergeant, E-6 on 25 November 1998, the graduation date of the 23 June 1998 BNCOC class he was originally scheduled for, with an effective date and a date of rank of 25 November 1998; and

     c.  that any back pay and allowances due the applicant from 25 November 1998 to the present for this promotion be paid to him.

BOARD VOTE:  

__rvo___  __mkp___  __eja___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044061	
SUFFIX		
RECON		
DATE BOARDED	20000914	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.