MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 December 2000
	DOCKET NUMBER:   AR2000044609

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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:  Promotion to the pay grade of E-7.

APPLICANT STATES:  In effect, that he was unjustly removed from the Calendar Year 1998 Sergeant First Class (SFC) Promotion Selection List prematurely based on an adverse action pending against him.  He further states that he should have instead been placed in a non-promotable status until the outcome of the adverse action and then should have been promoted 15 days after the punishment was satisfied.  At that point he should have returned to a promotable status.  However, he was instead removed from the SFC Selection List. 

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

He enlisted on 15 April 1986 for a period of 2 years, enrollment in the Army College Fund, and training as a multi-channel communications equipment operator.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 May 1995.

He was selected for promotion to the pay grade of E-7 and attendance at the Advanced NCO Course (ANCOC) in May 1998 and was scheduled for attendance at the ANCOC on 11 August 1999.

On 3 February 1999, a suspension of favorable personnel actions (FLAG) was initiated against the applicant for adverse action, pending the imposition of nonjudicial punishment.

On 12 February 1999 orders were published by the Department of the Army announcing the promotion of the applicant to the pay grade of E-7 effective 1 March 1999.  The orders specified, in pertinent part, that the promotion was not valid if the individual concerned was not in a promotable status on the effective date of promotion and would be revoked.  It also stated that the promotion to the pay grade of E-7 was conditional upon completion of ANCOC and that his name would be removed from the centralized list if he failed to meet the ANCOC requirement.

The applicant’s commander notified the applicant on 23 February 1999 that he was considering imposing nonjudicial punishment against him for using disrespectful language towards a noncommissioned officer (NCO) on 11 January 1999.  On 12 March 1999, after consulting with counsel, the applicant demanded trial by court-martial. 

On 6 May 1999 the promotion orders were revoked by the Department of the Army.

On 14 June 1999 he was convicted by a special court-martial of using disrespectful language towards an NCO.  He was sentenced to be reduced to the pay grade of E-5.  However, the special court-martial convening authority disapproved the findings and sentence and dismissed the charges against the applicant without prejudice.

Meanwhile, the servicing military personnel office erroneously published a reduction to the pay grade of E-5, which was transmitted to the Department of the Army and resulted in his being removed from the promotion list due to his field reduction.  The reason was subsequently corrected to reflect that he was removed due to failure to attend his scheduled ANCOC.

While the specifics are not present in the available records, the special         court-martial convening authority resubmitted the nonjudicial punishment against the applicant on 28 December 1999.  The applicant did not demand trial by  court-martial and requested that the proceedings be conducted in a closed hearing.  The commander directed that he be reduced to the pay grade of E-5 and that the Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627) be filed in the performance fiche of his Official Military Personnel File (OMPF).  

The applicant appealed the punishment and the reduction to the pay grade of E-5 was mitigated on 22 February 2000 to a forfeiture of $1,005.00 for 1 month.  The suspension of favorable personnel actions was lifted on 7 March 2000. 

On 12 May 2000 it appears that the applicant submitted a request for reinstatement on the promotion selection list.  There is no evidence in the available records to show that it was ever processed to completion.  However, there is evidence to show that he was advised to apply to this Board for relief.

In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) Promotions Branch which opined, in effect, that the applicant was unable to attend his scheduled ANCOC on 11 August 1999 and that the applicable guidelines provide that soldiers selected for promotion to the pay grade of E-7 are required to successfully complete their scheduled ANCOC in order to retain their promotion.  Those soldiers failing to attend their scheduled ANCOC for reasons such as flags (if resolved unfavorably), are administratively removed from the promotion list and must recompete for promotion to the pay grade of E-7.  

The advisory opinion was provided to the applicant for comment and he responded to the effect that he was denied the opportunity to attend ANCOC because a personnel clerk inadvertently submitted an erroneous reduction transaction that caused him to be reduced to the pay grade of E-5 and be removed from the promotion list.  He further contends that he is being denied justice because he was exercising his constitutional right to demand trial by court-martial and through no fault of his own the entire process took 13 months to accomplish and resulted in his being denied an earned promotion.  He also states that he takes exception to having to follow a policy instituted in December 1999 that requires that all soldiers must attend ANCOC within 1 year of selection for promotion to the pay grade of E-7 and contends that the policy should not be applied retroactively to him.

Military Personnel Message (MILPER) Number 94-24 dated 22 October 1993 announced the procedural guidance for the linkage of the Noncommissioned Officer Education System (NCOES) to promotions.  It states, in pertinent part, that soldiers who on or after 1 October 1993 accept a conditional promotion and are subsequently declared a “No Show” or otherwise do not complete the ANCOC requirements, will have their promotions revoked by the PERSCOM Promotions Branch and will be administratively removed from the centralized promotion list. 

Army Regulation 600-8-19 serves as the authority for enlisted promotions.  It states, in pertinent part, that personnel are in a nonpromotable status when court-martial charges have been preferred or when flagged for the imposition of nonjudicial punishment.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  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.

2.  The applicant’s contention that had the administrative error erroneously reducing him to the pay grade of E-5, not occurred, he would have been able to attend the ANCOC and would have been promoted, appears to be without merit. The available evidence shows that he could have been promoted on 1 March 1999 had he not been flagged on 3 February 1999 and that due to his election to be tried by court-martial, the resolution of his case did not come to fruition until 7 March 2000.  As a result, he missed his scheduled ANCOC class in August 1999.  Accordingly, he was eventually removed from the promotion standing list in accordance with the guidance in effect at the time.

3.  The Board notes the applicant’s contention that he is being penalized for exercising his rights to a trial by court-martial and notes that had he been exonerated by either the court-martial or the subsequent nonjudicial punishment he accepted, he would have been able to be reinstated to the promotion list and allowed to attend the ANCOC.  However, since the outcome was not favorable, it appears that he missed his ANCOC due to his own misconduct and there appears to be no basis to reinstate him to an ANCOC class or the promotion list.
 
4.  Inasmuch as the available records are unclear as to what specifically happened in his case, the Board must presume, in the absence of evidence to the contrary, that he was actively involved in the sequence of events that occurred and that the actions by the Department were accomplished in accordance with the applicable regulations.

5.  While it is true that an erroneous reduction transaction did occur, this was an administrative error that could have been and was fixed but was subsequently reversed for the right reason.  Had the applicant been exonerated of the misconduct for which he was accused, he would have been reinstated.  However, he was not exonerated and it appears that the real reason he was taken off the promotion list was due to his failure to attend the ANCOC as scheduled.

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

__ewl ___  ___kak__  ___gw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044609	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/21	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROM	
2.		
3.		
4.		
5.		
6.