PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  30 November 2000
	DOCKET NUMBER:  AR1999029888

	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. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Celia L. Adolphi		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 he be reinstated on the Fiscal Year 1997 (FY97) Title 10 Active Guard Reserve (AGR) Enlisted Promotion List, in MOS 74Z and promotion with an effective date of 26 August 1997.

3.  The applicant states that his name “was removed from a published SFC/E7 to MSG/E8 Promotion List without [being] given due process.  National Guard Regulation (NGR) 600-200, Section X, 11-49, g, (1), requires written notification by the Commander, delivered to the affected soldier, and allowance of 30 days to respond in writing.  Supporting documentation displays the steps/circumstances used to erroneously remove me from the list.  I have n[e]ver receive[d] any formal/written notification as to why I was removed from said list.”  He provides a copy of a statement, which details his version of the events leading to and following his non-selection for promotion.  He provides 21 enclosures relating to his contentions, which are identified at his table of contents tab.  In support of his application, in March 2000 another person submitted a copy of the application with additional enclosures 22 through 32 added.  On 13 September 2000, he provided a redacted copy of the Department of the Army Inspector General (DAIG) Report of Investigation (ROI).

4. On 1 February 1995, Orders 3-4, Army National Guard (ARNG) placed the applicant on a 3-year Active Guard/Reserve (AGR) tour (1 February 1995 through 31 January 1998) in the Directorate for Command, Control, Communications and Computers, National Guard Bureau (NGB), as an Information Systems Manager (MOS 74Z).

5.  On 7 April 1995, his supervisor prepared a memorandum for record (MFR), subject: Preliminary NCOER Results, which indicates the applicant has been trained and qualified in an administrative MOS and that he considers him tactically proficient in common skills and exemplary in his military knowledge and bearing.

6.  During the period 1 February to 6 December 1995, the applicant was rated for duty in MOS 74Z.

7.  On 7 December 1995, orders 341-003, NGB, placed the applicant on a “voluntary active duty commitment for 2 years, 10 months and 25 days [sic] (7 December 1995 to 31 January 1998) to serve as an Administrative NCO {71L}”.

8.  During the period June 1996 to May 1997, the applicant was rated for duty in MOS 74Z.

9.  The deadline for review and verification of promotion status for the 1997 MSG Promotion Selection List was established as 3 March 1997.  Subsequent changes would not affect that board.

10.  On 3 March 1997, an NGB Form 4100-1-R-E (Enlisted Promotion Point Worksheet) was prepared and verified for promotion in MOS 74Z.

11.  On 30 May 1997, an NGB Memorandum, Subject: 1997 Title 10 AGR Enlisted Promotion Boards Results, was published and the applicant was rated 31 in the functional area sequence and promotion sequence number 1 in the Information System Chief section.

12.  On 8 July 1997, the applicant was advised by e-mail that he needed to update and submit a DA Form 705 and DA Form 4836 (Oath of Extension of Enlistment or Reenlistment).  The message went on to advise him that he was neither slotted nor qualified in MOS 74Z, but in an MOS 71L (E8) position as directed in the order placing him on his AGR tour.

13.  On 21 July 1997, the NGB Personnel and Manpower Division published a memorandum, Subject: Title 10 AGR Enlisted Personnel Management Issues, which was basically a compilation of questions and answers.  It outlined policies and procedures pertaining to various management issues.

14.  On 31 July 1997, the Director, ARNG Directorate published a corrected promotion list which listed the applicant in sequence number 11 for MOS 75H.  He was tied in total points with another soldier whose date of rank was earlier than his, and therefore placed in sequence 10.  Other soldiers also had their list status adjusted accordingly.

15.  On 26 August 1997, the Director, Office of the Chief of Signal, Army Signal Center and Fort Gordon, Fort Gordon, Georgia approved a waiver of formal school training for MOS 74B (Information System Operations Analyst) for the applicant.  The Director stated “This memorandum constitutes authority for your personnel service organization to award MOS 74B to SFC [applicant], provided all other administrative criteria such as security clearance and medical PULHES have been complied with.”  This is the only office permitted to authorize award MOS 74B and is not retroactive.

16.  There is no record of awarding MOS 74B to the applicant.

17.  On 28 August 1997 a request was submitted by the NGB Information Management Officer to change the TDA (Table of Distribution and Allowances) to show a MSG/E-8 MOS 74Z50 authorized in Para 907B/Ln 03 vice an SFC/E-7 MOS 71L40.  The requested target date was 1 September 1997.

18.  There is no record of a TDA change to show an authorized position for MSG/E-8 as requested.

19.  An undated request for revocation of Orders 341-003, dated 7 December 1995, based on the applicant not being moved to the Administrative NCO position was enclosed without action being taken.

20.  On 30 September 1997, Orders 273-002, NGB amended Orders 341-003, dated 7 December 1995 from an active duty commitment of 2 years, 10 months and   25 days (sic) to serve as an Administrative NCO to an active duty commitment of 5 years, 1 month and 25 days (sic) to serve as Information Systems Chief.  Additionally, this order awarded the applicant MOS 74Z50. (This MOS is only authorized for personnel in pay grades E-8 and E-9).

21.  On 18 May 1998, another NGB Form 4100-1-R-E was prepared in MOS 74B.  Also, an undated, unsigned NGB Form 4100-1-R-E was prepared in MOS 75Z.

22.  On 1 July 1998, the 1998 MSG Promotion List indicates that the applicant was rated in MOS 74Z and was ranked sixth of eight in the functional area (MOS 74Z).

23.  On 31 July 1998, the Chief, NGB prepared a memorandum for the Director, ARNG, concerning promotion of the applicant.  In this memorandum, he advised the director that he believed an “exception to policy” was warranted and that the equities of the applicant’s situation justified a waiver of the provisions of Chapter 11 of NGR 600-200, for promotion.  He also stated “Furthermore, action should be taken to either authorize an additional MSG control grade or to make this promotion effective on or about 1 Oct 98 to minimize the impact this decision could have on other deserving soldiers.”

24.  On 14 December 1998, the applicant initiated an Inspector General (IG) Action Request to determine why he was not promoted in accordance with the Chief, NGB memorandum.

25.  On 21 January 1999, the NGB-IG provided the applicant a final response to his inquiry.  In this response, the IG concluded that he had been improperly listed on the 2 June 1997 (sic) promotion list; that the applicant was not qualified for promotion in MOS 74Z; that on the corrected promotion list, he was properly listed under MOS 75H in the corrected version; and, that he had been properly notified once the correction had been made.  He further advised the applicant that orders awarding him MOS 74Z50 were incorrect, as that MOS was reserved for master sergeants and sergeants major.  At that time, he was only qualified for MOS 74B40.  He also advised the applicant that he would have to contact the Chief, NGB to find out why action was not taken on his 31 July 1998 memorandum to the Director, ARNG.

26.  On 1 August 1999, the 1999 MSG Promotion List indicates the applicant was ranked as number 6 of 8 in the functional area (MOS 74Z).

27.  On 14 December 1999, the applicant requested a formal DAIG investigation. He indicated there was a conflict of interest and the NGB-IG could not be fair and impartial.

28.  On 28 December 1999, the NGB-IG indicated a thorough and complete investigation of the applicant’s complaints had been completed and that the DAIG had reviewed and supported those findings.

29.  On 11 January 2000, he was advised by the DAIG that they had an ongoing investigation into his allegations and he would be advised of the outcome.

30.  On 28 March 2000, a staff member of the Board was advised by a staff member of the DAIG that there was a current, on-going investigation of the applicant’s complaints.

31.  On 18 July 2000, the DAIG advised the applicant by letter that the inquiry into his allegations had been conducted and that some of his issues were founded.  This inquiry concluded that the NGB had made several administrative errors that may have negatively impacted on his promotion.  This letter indicated the applicant was qualified to submit his packet for promotion as a 74Z in 1997:

	a.  He graduated from six civilian taught classes in the computer/network profession.

	b.  The US Army Signal School eventually waived the requirement to attend the formal military school, for qualification in MOS 74B.

	c.  He served in DMOS 74Z and was rated as among the best on three consecutive NCOER’s.

	d.  He was directed to a CW4 position as the Information Manager for five months.

32.  The DAIG concluded that his technical expertise far exceeded the basic requirements for an Information Systems Analyst (74B).

33.  The applicant was advised to present a copy of the ROI to this Board.

34.  On 13 September 2000, that document was provided by the applicant.

35.  On 18 September 2000, an official of the NGB advised the Board’s analyst in this case that the applicant appeared on the 1998 and 1999 MSG Promotion Lists and was ranked number six of eight in his functional category (74Z).  He was not selected or promoted.  Further, the applicant did not qualify himself for the 2000 MSG Promotion List by completing NGB Form 4100-1-R-E.

36.  There is no record to show an additional MSG control grade was requested or authorized for the applicant for promotion purposes.

37.  The applicant’s records were not provided to the Board.  Information was obtained from the applicant’s request.

38.  Position vacancies are required for promotion under title 10 AGR Enlisted Promotion procedures.

39.  NGR 600-200 (Enlisted Personnel Management) indicates, in pertinent part, that the Chief, NGB may publish orders changing or awarding an MOS for AGR Title 10 tour personnel, when they are the official custodian of a soldier’s Military Personnel Records Jacket (MPRJ).

CONCLUSIONS:

1.  It was through no fault of his own that the applicant was not qualified for promotion to MSG in MOS 74Z by the FY97 Title 10 AGR Enlisted Promotion List at the time of the deadline for review and verification of promotion status or when the list was published.  It was through the lack of proper management by NGB officials that the applicant was ordered to active duty in an improper MOS, that he was not properly utilized during his duties with the NGB in positions of other than his MOS and in a warrant officer position, that the applicant was not trained in the required 74B MOS as required for award of the MOS, and that action was not taken to have the 74B MOS awarded to him in a timely manner.

2.  The evidence of record shows the applicant was not awarded MOS 74B at the time of his initial promotion consideration.  The applicant became eligible to hold MOS 74B effective 26 August 1997, only as authorized by appropriate authority, subsequent to the publication and effective date of the FY97 list.  Changes in qualifications for the FY97 promotion list could not be made retroactively.  However, the Board presumes here that since MOS 74B was approved for award to the applicant on 26 August 1997, it also would have been approved for award prior to 3 March 1997, the cut-off date for submission of administrative updates for the FY97 list of 3 March 1997.  The request for award of the MOS did not request a retroactive date.

3.  MOS 74B may have been awarded to the applicant as early as 1 January 1997, based on his prior training and on the job experience.

4.  Based on award of MOS 74B prior to 3 March 1997, the cut-off date for updates to the list, he was entitled to placement on the FY97 list in that MOS.

5.  The Board notes the memorandum dated 31 July 1998, from the Chief, NGB (made at the time of his departure from that position) to the Director, ARNG suggesting the promotion of the applicant as an exception to policy.  Both of these officials had the authority to effect the promotion, but only by exception to written regulation and policy.  Neither official directed the promotion.  The Chief of NGB suggested authorizing an additional MSG control grade for the purpose of promotion of the applicant, however, there is no record that one was authorized.  He also suggested promotion of the applicant on or about 1 October 1998.  In this instance, the applicant was placed on the FY98 list for promotion on that date and in MOS 74B, however, he was rated as sixth of the eight on the list and not promoted.  He also suggested minimizing the impact the foregoing suggestions could have on other deserving soldiers.  In this case, five other soldiers rated above him on the list.

6.  The Board further notes that position vacancies are required for promotion under title 10 AGR Enlisted Promotion procedures.

7.  The foregoing is supported by the DAIG.

8.  In view of the foregoing, and insofar as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.	That all of the Department of the Army records related to this case be 
corrected:

a.	by showing the individual concerned was awarded MOS 74B effective
1 January 1997;

b.  by showing he was placed on the Fiscal Year 1997 Title 10 Active 
Guard/Reserve Enlisted Promotion List for Master Sergeant (E-8) in MOS 74B (Functional Area 74Z); and

     c.  by showing he was placed in an authorized MSG (E-8) position as of 
1 October 1997.

2.  That if determined to have met promotion qualifications to MSG (E-8) based 
on the foregoing administrative corrections, he be promoted with an appropriate date of rank, and with appropriate pay and allowances.

3.  That if determined not to have met promotion qualifications to MSG (E-8) based on the foregoing administrative corrections, he be so notified.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__js___  ___tl____  __ca______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR1999029888	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.