MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 November 2000
	DOCKET NUMBER:   AR2000047641

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Ellis		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, reconsideration of her request that her records be corrected to show her Master Sergeant (MSG) date of rank is 1 July 1999.

APPLICANT STATES:  In effect, that she was entitled to be promoted to MSG on 1 July 1999 but was not because her security clearance had not been finalized.  Her clearance was finalized on 28 October 1999 and that became both the effective date of her promotion and her date of rank.  She claims that this is an injustice because prior to 1 July 1999 she had told her chain of command that she needed to apply for a security clearance, and was told that she did not need one because her military occupational specialty (MOS), Dental Specialist, did not require a clearance.  The applicant provides new evidence in the form of a rebuttal statement she submitted in response to the Army Personnel Command (PERSCOM) advisory opinion that was considered during the Board’s original consideration of her case.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 8 August 2000, AR200038848.

The applicant was selected for promotion by the Calendar Year (CY) 1999 MSG Selection Board and based on her sequence number would have been promoted effective 1 July 1999.  However, she was not promoted at this time because she failed to meet the security clearance prerequisite for promotion.

A PERSCOM advisory opinion, dated 24 April 2000, was provided for consideration during the original Board consideration of this case.  It indicated that the applicant would normally have been promoted to MSG on 1 July 1999 based on the sequence number assigned her on the promotion list.  However, she was not fully qualified for promotion on that date.  Her lack of promotion qualification was based on her not meeting the security requirement for promotion to MSG.  She was ultimately promoted to MSG on 28 October 1999, which is the day her secret clearance was granted.  PERSCOM finally opined that retroactive promotion should not be granted the applicant because she did not become fully qualified for promotion until she met the security clearance requirement for MSG.  

The decisional document prepared as a result of the Board’s original consideration of this case indicates that the applicant was provided an opportunity to submit a rebuttal to the PERSCOM advisory opinion but had failed to respond.  However, the evidence now includes a rebuttal statement submitted by the applicant, dated 10 June 2000.  

In her rebuttal statement, the applicant states, in effect, that she is now fully aware of the regulatory security requirements but notwithstanding this feels that her case should be favorably considered as an exception to policy.  She claims that in March 1994 she first attempted to obtain a security clearance but was denied by the chain of command because they said her MOS did not require a security clearance and it would only be a waste of government money to process the request.  

She also states her belief that she was let down by a promotion system that should work for the soldier and expresses her opinion that PERSCOM should have identified her security clearance problem in April 1999 and advised her of her nonpromotable status in April 1999, when the promotion list was first being consolidated.  It was not until 1 October 1999, that PERSCOM provided a memorandum explaining that she was nonpromotable.  

She claims to understand that as a senior Noncommissioned Officer (NCO) she should be knowledgeable of all Army regulations but was not alone in not knowing that a security clearance was required for promotion to MSG.  She claims that her First Sergeant, her Command Sergeant Major, and her Commander all were unaware of this security clearance requirement for promotion.  In addition, she claims that as soon as she became aware of the reason she was not promoted, she immediately reported to the S-2 to apply for a clearance and filled out all the paperwork.  At that time she was assured her clearance packet would be sent forward and that she should receive an interim security clearance within a few days.  That did not occur and her packet was never sent forward until late September.  Based on all this factors she concludes that she should be provided relief.  

The conclusions contained in the original decisional document issued by the Board state, in effect, that there was no basis for granting relief in the applicant’s case.  The conclusions indicate that the applicant did not meet the security requirements for promotion to MSG at the time she would have been eligible based on her sequence number.  In addition, the Board found that the applicant , as a senior NCO should have known the prerequisites for promotion and that she alone failed to qualify for promotion of her own volition.  Given these conclusions the Board found that relief was not warranted.

Army Regulation 600-8-19 (Enlisted Promotions) contains the policies and procedures pertaining to enlisted promotions.  Paragraph 1-16 provides the policy and security clearance prerequisites for promotion.  It states, pertinent part, that for promotions to MSG it is required to have a favorable National Agency Check, a Local Agency Check, and Credit Check (NACLC) or a security clearance of secret or higher.  

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.  The only new evidence provided by the applicant, that was not available when her case was originally reviewed by the Board, was her rebuttal to the original PERSCOM advisory opinion. In the opinion of the Board, the information and argument advanced in the applicant’s rebuttal provides no new issues or factors that are sufficiently mitigating to change the decision arrived by the Board in its original consideration of this case.

2.  The evidence shows that the applicant was not fully eligible for promotion to MSG on 1 July 1999 and that she was promoted on 28 October 1999, as soon as she met the security requirement for promotion.  Notwithstanding her statements to the contrary, the record contains no evidence to suggest the applicant ever pursued obtaining a security clearance until after she had missed her original promotion date.  

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

___bje __  __owt ___  __jlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047641	
SUFFIX		
RECON	2000/08/08	
DATE BOARDED	2000/11/09	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.