MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          23 April 2002
	DOCKET NUMBER:  AR2001059557

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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:  “Reconsideration on equitable grounds in one of the following alternative particulars:

	a.  That Applicant be promoted on 25 Sep 92 to the grade of E-6 and be given constructive credit for service in that grade until total service of 20 years, whereupon he was retired.

	b.  That Applicant be promoted on 25 Sep 92 to the grade of E-6 and be given constructive credit for service in that grade to 24 Sep 96, whereupon he received an Honorable Discharge with a DD 214 [DD Form 214 (Certificate of Release or Discharge from Active Duty)] showing an RE [reenlistment eligibility] code of 1, an Honorable Discharge and a reason for separation End of Term of Service.

	c.  That Applicant be promoted on 25 Sep 92 to the grade of E-6 and continued on active duty until such time as he is early retired in the grade of E-6.

	d.  Such other appropriate relief as the Board may choose.”

APPLICANT STATES:  In effect, that his counsel will present his case.  Counsel presents the applicant’s request for reconsideration and new requests for relief, evidence contentions, and conclusions in a five-page memorandum to the Army Board for Correction of Military Records (ABCMR) with no attachments.

In his 13 November 2000 letter, counsel for the applicant first essentially restated facts cited in ABCMR Docket Number AR1999032387, dated 7 June 2000:  

	“a.  Applicant was extended on active duty in the pay grade of E-5 and was discharged in that pay grade on 26 September 1992 by reason of expiration of term of service.

	b.  Applicant’s separation on 8 Jul 91 was voided in light of the extension.

	c.  A request for promotion to E-6 was denied.”

Counsel then cites the first sentence in conclusion number 3 (page 2) in ABCMR Docket Number AR1999032387:

	“The applicant’s assertion that he would have attained pay grade E-6 by 26 September 1992 is simply speculation.”

Counsel then cites conclusion number 4 (page 3) in ABCMR Docket Number AR1999032387:

	“Furthermore, the reported refusal on the part of the company commander to reconstruct the promotion package suggests that the commander would have initiated a local bar to reenlistment had he not been convinced that the control point precluded the Applicant’s reenlistment.”  (Emphasis provided by counsel).

Counsel then states:

	“One person’s speculation appears to be another person’s suggestion.  Engaging in word manipulations serves no purpose and certainly does not serve justice or equity.”

Counsel argues:

	“Firstly, there is absolutely no evidence as to why the company commander did not reconstruct the promotion package in April 1991.  Applicant’s ETS was July 1991.  For the Board [ABCMR] to say that the commander’s failure to perform his duty can be ascribed to the utter and total speculation the he would have initiated a local bar to reenlistment had he not been convinced that the control point precluded Applicant’s reenlistment.”

Counsel then poses a series of questions.  He first asks what would have been the basis for the cited bar to reenlistment and then points out that there was a “long prior Article 15.”  Counsel states that applicant was a mere 30 days away from becoming an E-6 when the Article 15 reduced him to E-4, the applicant’s service in the desert [Operations Desert Shield and Desert Storm] just prior to his return to Germany was outstanding.  Counsel then asks what possible basis was there for a local bar to reenlistment in April of 1991 and answers his question by asserting that there was no basis for such a bar to reenlistment. 

Counsel then argues that if the company commander thought a roster (sic) control point [retention control point (RCP)] for the applicant at pay grade E-4 was imminent, he had an affirmative duty to determine if the applicant was selected for promotion to E-5, thereby eliminating his RCP.  He also asserts that the company commander’s “failure to do so knowingly and willfully was a violation of Article 92, UCMJ [Uniform Code of Military Justice], Dereliction of Duty” and that the company commander’s conduct was at best “negligent, still a violation of Article 92.”  Counsel then concludes:

	“There was no justifiable reason for this commander not to assist in having Applicant promoted prior to his ETS [expiration of term of service].  The Board’s reasoning is unsupported and patently faulty.” 

Based on his conclusions that there was no basis for a bar to reenlistment, that the company commander was “derelict” by not acting on the issue of the RCP, and there was no justifiable reason for the company commander not to assist in having the applicant promoted, counsel then begins his counter arguments to the ABCMR’s conclusions.  He points out that the Board concluded the applicant could not have been promoted to E-6 by his new RCP of 26 September 1992 which was established when the applicant was promoted to E-5 on 1 July 1991.  

Counsel then argues essentially that the five month time in grade requirement cited in the ABCMR is a non sequitur because the period from the applicant’s promotion date to E-5 (1 July 1991) to the applicant’s RCP of 26 September 1992 is 15 months, not 5 months.  

Counsel then essentially questions that part of the ABCMR’s conclusion number 2 which asserts the applicant would only have 9 months to appear before a local promotion selection board and to achieve promotion to pay grade E-6.  Counsel asks and then answers it as follows:  

	“i.  Is the Board suggesting that no soldier ever met that requirement?

	ii.  There are multiple reasons why that could easily have occurred:

		A.  Applicant was once selected for promotion to E-6 before the 			1992 date when the local board would meet.

		B.  His service, save for one Article 15, was outstanding.

		C.  The 1992 local selection board would have known that an RCP 			would cause Applicant to be separated unless action on their part 			was taken.  

		D.  The 1992 local selection board would have had more than 			nine months of NCOERs as an E-5 to judge the applicant’s 				worthiness as an E-6.  That 1992 board would have had 				Applicant’s earlier E-5 NCOERs to look at.  This would have 				allayed any concerns as to whether Applicant was capable of 			serving as an E-6.

		E.  His prior rapid selections strongly suggest that he would have 			all necessary points to make E-6.”

Counsel ends this reasoning with the conclusion that there “is in fact every reason to believe that if Applicant had been given the opportunity he would have been promoted in 1992 to E-6.” 

Counsel concludes the request for reconsideration by stating in part:

	“…Applicant did not remain on active duty because his commander was derelict in his duty, and therefore Applicant was denied the opportunity to remain on active duty as an E-5.  Applicant was a good enough soldier to make E-6.  Equity demands that the benefit go to the Applicant, particularly in view of the commander’s misconduct.  We ask that relief be granted.”

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous considerations of the applicant’s case in ABCMR Docket Number AC92-09472 on 25 January 1995, Docket Number AR1998000700 on 16 June 1999, and Docket Number AR1999032387 on 7 June 2000.

The applicant and his counsel did not submit any documents as new evidence.

The issue of promotion to E-6 was addressed by the ABCMR in Docket Number AC92-09472 on 25 January 1995 and in case AR1999032387 on 7 June 2000.  Therefore, this is reconsideration of an issue previously addressed in decisions of the ABCMR.

In the request for reconsideration, counsel essentially is seeking the same relief considered in part by the ABCMR in Docket Number AR1999032387, specifically to correct his records by restoring him [the applicant] to active duty in pay grade E-6 or at least permit him to reenlist in pay grade E-6.  

Counsel’s request for continuation on active duty as an E-6 until such time as he is early retired in the grade of E-6 is a request for relief which has not previously been considered by the ABCMR.

The argument raised by the ABCMR regarding imposing a bar to reenlistment in the absence of RCP restrictions is a new matter introduced by the ABCMR during its deliberations on 7 June 2000.  Therefore, counsel’s response to the ABCMR on this subject matter constitutes new argument. 

Review of the applicant’s Official Military Personnel File (OMPF) shows that the applicant received a Non Commissioned Officer Evaluation Report (NCOER) for the period September 1989 through March 1990.  This NCOER covered his duties as the training NCO in Company D, 123d Support Battalion of the 1st Armored Division.  In Part IV (VALUES/NCO RESPONSIBILITIES) of this NCOER, the rater, who was the First Sergeant of D Company, placed his “X” in the block under Part IVc (PHYSICAL FITNESS & MILITARY BEARING) indicating that the applicant “NEEDS IMPROVEMENT (SOME).  This item also showed that the applicant failed the Army Physical Fitness Test in December 1989 and was unable to complete the two-mile run.  This item also showed that the applicant was 72 inches tall and weighed 208 pounds which was beyond his screening weight limit of 195 pounds, but that he met the body fat standards of Army Regulation 600-9 (The Army Weight Control Program).

In Part IVd (LEADERSHIP) of this NCOER, the rater placed his “X” in the block indicating that the applicant “NEEDS IMPROVEMENT (SOME).  This rater commented that the applicant was “Periodically unable to get to work on time.”

In Part V (OVERALL PERFORMANCE AND POTENTIAL),  the rater placed his “X” in the block under the “MARGINAL.”  The senior rater, who was the captain in command of Company D, evaluated the applicant’s overall performance as “FAIR” and rated his overall potential for promotion and/or service in positions of greater responsibility as “FAIR.”  The senior rater commented that the applicant remained proficient in his military occupational specialty and that the applicant “Possesses the ability to excel in many positions if able to overcome tardiness problems.” 

The lieutenant colonel in command of the 123d Support Battalion of the 1st Armored Division acted as the reviewer for this NCOER and placed his “X” in the block indicating that he concurred with the rater and senior rater evaluations.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

At the time of the applicant’s separation from active duty on 26 September 1992, Army Regulation 600-8-19 (Enlisted Promotions and Reductions), dated 1 November 1991, was in effect.  This regulation stated, in part, that its purpose includes filling authorized spaces with “best qualified soldiers,” providing for career progression and rank that is in line with potential, and precluding promotion of the soldier “who is not productive or best qualified.”

Army Regulation 600-8-19, dated 1 November 1991, governed in pertinent part the semi-centralized promotions to sergeant/pay grade E-5 and to staff sergeant/pay grade E-6.  Under this system, the regulation specified the decentralized functions to be performed in the field (primarily at the unit and at the Personnel Service Center) to include board appearance, promotion point calculation, promotion list maintenance, and the promotion of the soldier. 

Army Regulation 600-8-19, in effect at the time, also required that recommendations for promotions will be processed through the soldier’s parent unit, that the unit commander (normally the company commander) will personally identify soldiers to be recommended for promotion and that the promotion authority (usually a lieutenant colonel in command of a battalion) will approve the recommendations.  

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.  This Board noted counsel’s contention that it was speculation on the ABCMR’s part to doubt that the applicant would have attained pay grade 
E-6 by 26 September 1992.  However, this Board concluded that the promotion timeline (the 5 month time in grade requirement which left only 9 months remaining to appear before a local promotion board and to be promoted to pay grade E6) presented factors which, in the view of the Board members on 7 June 2000, reasonably dictated against the applicant’s promotion by 26 September 1992.  

2.  This Board noted counsel’s contention that it was speculation on the ABCMR’s part to believe the company commander would have initiated a bar to reenlistment if he was not convinced the applicant’s RCP precluded the applicant’s reenlistment.  This Board determined that initiation of a bar to reenlistment certainly was an option in this case; however, in the absence of evidence of such a bar, this  Board agrees with counsel that this conclusion is speculative.

3.  This Board considered counsel’s arguments in regard to the reconstruction of a promotion packet for the applicant and allegations that the unit commander was derelict, as well as counsel’s contention that there was no justifiable basis for the unit commander not to assist in having the applicant promoted prior to his ETS.  In considering these contentions, this Board noted several key facts:

	a.  Regulation governing promotion to E-6 provides that the unit commander (normally the company commander) has the prerogative of recommending E-5’s for promotion to E-6.  The regulation governing enlisted promotions further provides that the promotion authority (normally the battalion commander) has the authority to approve or disapprove those recommendations for promotion made by his subordinates and to disapprove or approve the recommendations of the battalion promotion board.

	b.  The applicant’s NCOER covering seven months from September 1989 through March 1990 shows the applicant failed to pass the Army Physical Fitness Test and that he was periodically “unable to get to work on time.”  Furthermore, the rater found the applicant’s potential for promotion and service in positions of greater responsibility was only “MARGINAL.”  The senior rater rated the applicant’s performance as “FAIR” and his potential as “FAIR” and noted the applicant’s physical training and tardiness problems.  There is no evidence that the applicant ever corrected these problems. 

	c.  Evidence of record shows that approximately one month after the cited NCOER was tendered, the applicant received non judicial punishment from a field grade officer (the battalion or brigade commander, not the company commander).  On 4 May 1990, this field grade officer reduced the applicant from sergeant/pay grade E-5 to specialist/pay grade E-4. 

4.  Based on the foregoing, this Board concluded that the applicant’s service was not “outstanding” as counsel contends.  The applicant had at least 9 months of substandard performance which clearly demonstrated highly questionable potential for promotion or service in positions of greater responsibility.  There is no evidence, and the applicant and his counsel have not provided evidence, that the applicant ever corrected his performance or physical training problems.  Thus, the chain of command had a very sound basis in fact not to recommend the applicant for promotion or to reconstitute a promotion packet for E-6.  

5.  Furthermore, this Board concluded that the unit commander was not “derelict” or “negligent” as counsel contends for failing to asses the impact of the applicant’s RCP and for allegedly failing to assist in having the applicant promoted prior to his ETS.  The facts clearly indicate a basis for not recommending the applicant for promotion.  The inference by the applicant and his counsel that the applicant was somehow entitled to promotion to E-6 prior to ETS has no basis in fact.

6.  Furthermore, counsel’s conclusion that there was every reason to believe, if given a chance, the applicant would have been promoted to E-6 in 1992 is not supported by the facts in this case.  Clearly, the chain of command preempted the opportunity for the applicant to be considered for promotion to E-6 in 1992 due to performance and discipline issues.  Counsel’s argument that the promotion board would consider earlier E-5 NCOERs which “would have allayed any concerns as to whether Applicant was capable of serving as an E-6” is flawed.  Counsel’s contention that the applicant would have enough points for promotion to E-6 is conjecture, particularly in the absence of allocation of the 200 promotion points awarded by the unit commander for performance and in the absence of the allocation of the 200 promotion points awarded by the promotion board.

7.  In order to grant the relief in any of the three primary options requested by the applicant and his counsel, the Board must promote the applicant to staff sergeant/pay grade E-6.  In the absence of evidence of a recommendation for promotion to E-6 by the chain of command when he became eligible in 1991 or 1992, in the absence of a valid promotion packet for E-6 at the time of the applicant’s separation from active on 26 September 1992, and in the absence of evidence that applicant appeared before the unit E-6 promotion board during 1991 or 1992, there is no basis for this Board to promote the applicant to 
E-6 based on an error in the promotion record.  

8.  In view of the evidence showing a period of substandard performance and substandard potential for advancement by the applicant and evidence of his indiscipline, the Board has determined that there is no basis to promote the applicant to E-6 as a matter of equity.  

9.  Based on all of the foregoing, this Board has determined that the applicant and his counsel have failed to provide conclusive evidence and/or compelling argument which are sufficient as a basis for this Board to reverse the decisions of the ABCMR in Docket Number AR1998000700 on 16 June 1999, or in Docket Number AR1999032387 on 7 June 2000.

10.  In the absence of action by this Board to promote the applicant to E-6, there is no basis to reinstate the applicant to active duty; there is no basis to grant any constructive service credit to the applicant; there is no basis to issue him new discharge documents and/or reissue or amend any of his existing valid discharge documents; there is no basis to grant the applicant retirement based on 20 years of service or to grant him early retirement; and there is no basis for this Board to grant any other relief to the applicant. 

11.  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 either requirement.

12.  In view of the foregoing, there is no basis for granting the applicant's requests.

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

__MDM__  __KAK__  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059557	
SUFFIX		
RECON		
DATE BOARDED	20020423	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	310.0000.0000	
2.		
3.		
4.		
5.		
6.