PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 DECEMBER 2002                  
	DOCKET NUMBER:   AR2002072269

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Powers		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 his date of rank for promotion to master sergeant be changed from 25 April 2001 to 1 January 2001. 

3.  The applicant states that upon receipt of a memorandum on or about 2 May 2000 that he was in a non-promotable status because he did not have a security clearance, he contacted an NCO at the Total Army Personnel Command (PERSCOM), who informed him that he could be granted an interim clearance through his operations group S-2 and be promoted without delay.  He contacted an NCO in the group S-2, and was informed that there was nothing he could do because he had no record of a background check on file, and who stated that was unusual because soldiers with 10 years or more of active service should have at least a favorable background check on file.    

4.  The applicant states that he knew that he did not have a secret clearance, because his job positions did not require one, but was unaware that he did not have at least a favorable background check on file.  The regulation states that promotion from specialist through sergeant first class requires the clearance required by the promotion MOS (military occupational specialty) or an interim clearance at the same level.  He was promoted to sergeant first class on 1 March 1996 with no delay.  He applied for a security clearance in order to be promoted to master sergeant prior to his projected promotion date, but his promotion sequence number came up before he was granted a clearance.  He finally found a copy of his entrance national agency check (ENTNAC).  He was granted an interim clearance and promoted on 25 April 2001.  The security investigation was completed on 2 July 2001 and he was granted a secret security clearance. 
He was never informed that his ENTNAC was lost.  His security investigation was not completed in a timely manner.  He feels that he should receive a retroactive date of rank with back pay. 

5.  A 19 March 1984 DIS (Defense Investigative Service) report of NAC/ENTNAC shows that an ENTNAC was conducted and that FBI agencies were checked with favorable results.

6.  The applicant’s military records show that on 2 May 2000 PERSCOM notified the applicant, then a sergeant first class, that promotion to master sergeant required a favorable National Agency Check (NAC) or a security clearance of secret or higher; and that his security status reflected “none” [he had neither].  He was requested to provide the appropriate documentation to effect his timely promotion.

7.  A Defense Security Service (DSS) EPSQ (Electronic Personnel Security Questionnaire) shows that the DSS received the applicant’s investigation packet on 17 July 2000.  

8.  A 27 April 2001 memorandum for record from the S-2, JRTC (Joint Readiness Training Center) and Fort Polk shows that the applicant was granted an interim secret clearance based on his 1984 ENTNAC.  Another memorandum of that same date from the same official indicates that a local records check was favorable, that an interim secret clearance was granted on 25 April 2001, and that a request for a secret clearance was submitted on 15 July 2000.   

9.  The applicant was promoted to master sergeant effective and with a date of rank of 25 April 2001.

10.  In a 17 April 2002 e-mail to the applicant, the JRTC Operations Group S-2 stated that the applicant’s investigation packet was received by the DSS on       17 July 2000, but that agency was extremely slow with investigations.  He also faulted a S-2 NCO and the G-3 Intelligence and Security Division for failing to properly screen his [investigation] packet, causing it to be returned for correction. He stated that no copy of his local records check was maintained in the S-2 office.  He indicated that his S-2 should have requested a clearance based on his favorable 1984 ENTNAC.  That official stated that there was no reason that he was not granted an interim clearance pending completion of the DSS investigation. 

11.  Army Regulation 600-8-19 prescribes policies and procedures governing enlisted promotions.  Paragraph 1-16 states that promotion to master sergeant and sergeant major requires a favorable National Agency Check, Local Agency Check, and Credit Check, or a security clearance of secret or higher.

12.  In the processing of this case, an advisory opinion was obtained from the PERSCOM Promotion Branch.  That office indicated that the promotions were made through the applicant’s sequence number on 1 January 2001; however, he was not promoted because he did not meet the security requirements.  He was promoted on 25 July 2001, the day his interim clearance was granted.  That office recommended that the applicant’s request be denied in that adjusting his promotion date would afford him an unfair advantage not given to other soldiers.  

13.  In his rebuttal to the advisory opinion, the applicant stated that the facts are clear that he was not at fault for the delay in receiving his clearance; that he had no control over the performance of individuals and agencies involved in the process.  He strongly disagreed with the advisory opinion.

CONCLUSIONS:

1.  The evidence indicates that the applicant did take action to obtain a clearance well prior to his projected promotion date of 1 January 2001.  The evidence also suggests that the applicant was ill-served in the clearance process; and that he could have been granted an interim secret clearance in advance of his promotion date.  

2.  Consequently, and notwithstanding the PERSCOM advisory opinion, it would be entirely proper to grant the applicant an exception to policy and grant his request for a retroactive promotion to master sergeant effective and with a date of rank of 1 January 2001, with all due pay and allowances.

3.  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 showing that the individual concerned was promoted to master sergeant effective and with a date of rank of 1 January 2001, with all due pay and allowances in that grade from 1 January 2001. 

BOARD VOTE:  

__LLS  __  __BJE __  __WDP__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Luther L. Santiful_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002072269	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021217	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.