PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999030944

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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, in effect, that his records be corrected to show he was promoted to Sergeant First Class (SFC), E-7 prior to taking his oath of office as a second lieutenant.

3.  The applicant states that had he been given correct and honest information, he would have pinned on his E-7 prior to being commissioned.  His branch had told him that the “2-year service obligation prior to voluntary non-disability retirement" policy would not affect him since he would be staying on active duty for another 4 years as a pay back for acceptance into the Army medical Department (AMEDD) Enlisted Commissioning Program.  Being allowed to remain enlisted until after his promotion would have allowed him to retire 7 years later (since he did not have 10 years commissioned time) as an E-7.

4.  The applicant’s military records are not available.  The information contained herein was obtained by documents provided by the applicant.

5.  On 20 April 1993, while attending nursing school as part of the AMEDD Enlisted Commissioning Program, the applicant received word that he was selected for promotion to SFC with a sequence number of 00025.

6.  On 18 May 1993, orders were published ordering the applicant to active duty with a report date of 7 June 1993 (later amended to 29 July 1993) to Fort Knox, KY to take his licensing examination and a report date of 6 September 1993 to attend Officer Basic Course (OBC) at Fort Sam Houston, TX.  

7.  On 10 June 1993, the applicant requested leave from 29 July – 27 August 1993 in order to arrive at Fort Knox on 27 August 1993.  He stated on his leave form that this would allow him time to in-process, get promoted to SFC, get discharged and commissioned, and still make his 6 September 1993 OBC date.  His leave was disapproved and he apparently was told that if he did not arrive at Fort Knox by 29 July 1993 and immediately take his oath of office he would lose his commission for good.

8.  On 27 July 1993, orders were published promoting the applicant to SFC effective 1 September 1993.  (These were not conditional promotion orders; attendance at the Advanced Non-Commissioned Officer Course was not required at that time.)

9.  On 29 July 1993, the applicant took his oath of office as a second lieutenant.

10. In 1994, the applicant requested that his records show he was promoted to SFC as an exception to policy.  His request was disapproved and his promotion orders were revoked on 6 October 1995.

11.  The applicant apparently retired on 1 August 1999.  Because he had less than 10 years commissioned service he was retired as a Staff Sergeant, E-6.

12.  On 2 March 2000, the U. S. Army Recruiting Command stated that policy today would have prevented the applicant from taking his oath of office prior to passing his licensing examination.  The time between completing his examination and reporting to OBC would have been casual time.  He would have been allowed to remain in an enlisted status, take leave and been commissioned after his promotion to SFC but in time to report to OBC as a second lieutenant.

13.  Army Regulation 600-8-19 prescribes policies governing promotion and reduction of Army enlisted personnel.  Paragraph 4-8 states that soldiers promoted to grades SFC, Master Sergeant and Sergeant major will incur a        2-year service obligation.  Service obligation will be from the effective date of the promotion before voluntary non-disability retirement.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.  

2.  Current policy is that an AMEDD student not take his or her oath of office prior to passing the licensing examination, as the applicant was required to do.  Had current policy been in effect, the applicant would have been allowed to remain in an enlisted status until just prior to the start of his OBC on 6 September 1993.  This would have allowed him to be promoted to SFC on 1 September 1993.

3.  The regulation states that soldiers promoted to grade SFC will incur a 2-year service obligation.  Although the Board believes the intent behind this service obligation may be to ensure the soldier serves in an enlisted status for 2 years, the regulation does not specify that requirement.  The applicant served for more than 2 years beyond 1 September 1993.

4.  At this point, it would create administrative difficulties to void the applicant’s commission of 29 July 1993, show he was promoted to SFC on 1 September 1993, and then to show he was commissioned on or about 2 September 1993.  The Board does understand that the applicant was probably in the first group of sequence numbers from his selection board to be promoted; however, it would be in the interest of justice to show he was promoted to SFC on 1 July 1993 as an exception to policy.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was promoted to SFC effective 1 July 1993 with a date of rank of 1 July 1993.  He is not entitled to any active duty pay and allowances as a result of this correction.

2.  That the applicant’s records be corrected to show he was retired in the rank and grade of SFC, E-7.  He is entitled to any retired pay due as a result of this correction.

3.  That the applicant be advised that when his active service plus his service on the retired list totals 30 years, in approximately 2009, he may be eligible for advancement to Captain, 0-3 on the retired list.

BOARD VOTE:  

__rvo___  ___sk___  ___le___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030944	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	136.06	
3.		
4.		
5.		
6.