MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 September 2001
	DOCKET NUMBER:   AR2001057392

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paula Mokulis		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, a waiver of 21 days, promotion to the pay grade of E-6 with entitlement to all back pay and allowances as well as separation pay in the pay grade of E-6. 

APPLICANT STATES:  That on 4 May 2000 he was flagged and placed under investigation.  On 1 June 2000 he met the cut-off score for promotion to the pay grade of E-6 but could not be promoted because he was flagged.  He further states that he was also flagged on 25 August 2000 because he was placed on the overweight program.  The investigation was favorably closed a year later on 1 May 2001.  However, because he could not complete the 1-year service remaining obligation for promotion to the pay grade of E-6 by 21 days due to the expiration of his term of service (ETS) he was not promoted.  He continues by stating that by the time the investigation ended with the charges being unsubstantiated, he was being chaptered out of the Army for being overweight.  He also states that had the investigation not lasted for a year, he would have been promoted to the pay grade of E-6; accordingly, he should have been promoted and separated in the pay grade of E-6.

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

He enlisted on 2 August 1988 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 1 August 1992 and his last reenlistment was on 13 November 1998 for a period of 2 years. He extended that enlistment on 6 November 2000 for a period of 6 months.  His ETS was established as 12 May 2001.

On 4 May 2000 a suspension of favorable personnel actions (flagging action) was initiated against the applicant.  The circumstances surrounding this action are not present in the available records; however, the flag was removed on 1 May 2001, with the case being closed favorably.

On 1 May 2001, the applicant submitted a request for a 30-day waiver of the service remaining requirement for promotion to the pay grade of E-6.  He asserted in his request that he would have extended or reenlisted had he not been flagged and that he would have been promoted had the investigation not taken so long.  The commander recommended approval of his request and there is no evidence in the available records to show what the final action was taken in his case or if the request was processed to finality.

The facts and circumstances surrounding his discharge are not present in the available records; however, his records do contain a duly constituted report of separation (DD Form 214) which shows that the applicant was discharged in the pay grade of E-5 on 11 May 2001, under the provisions of Army Regulation   635-200, chapter 18, for Weight Control Failure.  He had served 12 years, 9 months and 10 days of total active service and received one-half separation pay in the amount of $15,360.44.

Army Regulation 600-8-19 provides the policies and procedures governing enlisted promotions.  It provides, in pertinent part, that when a delay of promotion has occurred because of a suspension of favorable personnel actions that is subsequently favorably closed, and the soldier would have been promoted while the suspension was in effect, he or she will be promoted with an effective date and date of rank of their peers.  That regulation also provides that the service remaining requirement for promotion to the pay grade of E-6 is 12 months.  Personnel who do not have 12 months remaining in service must take steps to meet the service remaining obligation before orders are published or the promotion is accomplished.  A soldier’s separation from the service before fulfilling the service remaining obligation does not invalidate the promotion if the service remaining requirements were met at the time of promotion.

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.  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.  By the applicant’s own admission, he was under two separate flags simultaneously, one for an investigation that began in May 2000 and lasted until May 2001.  The other flag imposed in August 2000 was for being in the overweight program.  While he has provided no documentation to show that the flag was lifted, his records do show that he was discharged for weight control failure.  

3.  The Board also notes that he was flagged before he met the cut-off score.  Had the case been resolved sooner, it appears that he would have been promoted as long as it occurred prior to the August 2000 flag being imposed and he took steps to meet the service remaining requirements to accept the promotion.  This was not the case and the applicant has failed to show through the evidence of record or the evidence submitted with his application that he has been unjustly denied a promotion.

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

___pm __  __rjw ___  __kwl ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057392	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/20	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV IN GRD	
2.		
3.		
4.		
5.		
6.