PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  20 July 2000
	DOCKET NUMBER:  AR1999032027

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Ms. Ann M. Campbell		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 he be placed back on the Sergeant First Class (SFC) promotion list and that he be promoted to SFC.

3.  The applicant states, in effect, that he was selected for promotion to SFC by the CY97 SFC Promotion Board according to the 12 August 1997 promotion list published by that board.  On 5 May 1998, he was removed from the promotion list due to a local bar to reenlistment initiated on 10 July 1997.  The bar to reenlistment was resolved favorably and removed 9 December 1998.  The applicant contends that he was illegally removed from the promotion list since the Army regulation in effect at the time stated that a local bar to reenlistment would only remove him from the promotion list if the bar occurred prior to the convening date of the promotion board.  In this case, the promotion board convened on 
28 May 1997.  He states that he has exhausted all administrative remedies to resolve this injustice.

4.  The applicant’s military records show that he enlisted in the Regular Army in pay grade E-4 on 31 May 1989.  He had prior service in the Army from September 1980 to February 1988.  (As of July 2000, he has 18½ years of service.)  He advanced though the ranks to pay grade E-6 on 1 January 1993.  He was considered for promotion by the Calendar Year 1997 (CY97) 
SFC Promotion Board which convened on 28 May 1997.  The promotion board selected him for promotion to SFC in his Primary Military Occupational Specialty (PMOS), 92G, Food Operations, number 14 on the merit list for this PMOS.  
The CY97 SFC promotion list was published on 12 August 1997.  According to his standing on the merit list, he would be promoted to SFC on 1 January 1998.

5.  In 1997, the applicant was assigned to Headquarters and Headquarters Battery (HHB), 94th Air Defense Artillery (ADA) Brigade, in Germany.  On 
11 April 1997, the applicant received an Article 15 for violating a lawful order given by his supervisor, a SFC: to cut all meats on a metal slicer by telling a subordinate to cut the roast pork by hand on or about 22 January 1997; to 
place the roast in a stock pot or steam-jacketed kettle by placing the roast in a deep fat fryer on or about 27 February 1997; and to pull the raw bacon off the serving line by leaving the raw bacon on the serving line on or about 14 March 1997.  The applicant received punishment of forfeiture of $468 suspended until 11 June 1997 and he was restricted for 14 days.  On 10 July 1997, the applicant’s commander initiated a bar to reenlistment on him.  The applicant appealed the bar but it was denied.

6.  Prior to these two disciplinary actions, the applicant had an excellent record.  The applicant filed EO complaints of gender discrimination.  A 7 August 1997 letter from an Equal Opportunity Advisor (EOA) stated, “(The applicant) has

attempted to have his issues investigated for a long period of time without any success.  After evaluating his allegations, I find no evidence that would indicate gender discrimination against (the applicant) but rather allegations of misuse of authority/position by (his SFC supervisor).”  The EOA referred the applicant to the United States Army Europe (USAREUR) and 7th Army Inspector General for assistance.  In a subsequent EOA letter dated 30 January 1998, it was stated, “As a result of the inquiry, it was found (the applicant) had been singled out and he was being treated differently.”  The applicant was transferred to another unit, HHB, 1st Battalion, 7th ADA, in Germany.  He received excellent endorsements from his new unit including the battalion commander.  His bar to reenlistment was concluded favorably and removed on 8 December 1998.

7.  Due to the Bar to Reenlistment initiated on 10 July 1997, the applicant was administratively removed from the SFC promotion list.  He was notified of this by a 5 May 1998 letter from the U.S. Total Army Personnel Command (PERSCOM). It appears that his promotion to SFC was directed in January 1998 but revoked due to the Bar to Reenlistment being in place.

8.  Army Regulation 600-8-19, Enlisted Promotions and Reductions, effective 
1 December 1991, states in paragraph 4-18, that soldiers will be removed from the promotion list when they are, “barred from reenlistment (local bar) prior to the convening date of the board.”  (The applicant was barred from reenlistment on 
10 July 1997 after the 28 May 1997 promotion board convening date.)  This provision was amended by Interim Change 1 (IC1) to the basic regulation which deleted the phrase, “prior to the convening date of the board.”  The IC1 was placed into effect on 8 April 1994 and expired on 8 April 1996.  A PERSCOM message number 96-108 dated 22 March 1996 extended the expiration date of the IC1 to 8 April 1997.  After that date, no further extensions of IC1 were issued. Instruction on the title page of AR 600-8-19 states that, “Users will destroy interim changes on their expiration dates unless sooner superseded or rescinded.”  The IC1 itself also requires its destruction upon expiration.  After IC1 expired on 
8 April 1997, the unaltered provision in paragraph 4-18 for removal from the promotion list of only those barred from reenlistment before the convening date of a promotion board returned to effect.  There is no other current provision of regulation for removal of a soldier from a promotion list due to a local bar to reenlistment which occurs after the convening date of the related promotion board.

9.  A legal advisory opinion on the issue of removal of the applicant from the SFC promotion list has been provided by the Army Review Boards Agency (ARBA) Legal Advisor.  He states that the Deputy Chief Enlisted Promotions, PERSCOM, 

is aware that the IC1 has expired and that they continue to apply its provisions as policy in spite of conflicting legal opinion on the authority to do so.  The ARBA Legal Advisor concluded that IC1 expired on 8 April 1997 and that the applicant was improperly removed from the SFC promotion list.  He recommended that the applicant’s records be corrected to show that he was never removed from the SFC promotion list, that he was promoted to SFC in accordance with the original promotion schedule as though he had never been removed from the list; and that the applicant be awarded back pay and allowances.  He states that, “This result is consistent with the contents of AR 600-8-19, Enlisted Promotions and Reductions, and Federal case law interpreting military regulations.  Further, the result is consistent with the principles of law, policy, principles, equity and discretion authorized under Title 10 U.S.C., section 1552.”

10.  The applicant was provided a copy of the legal advisory opinion.  He concurred with the advisory opinion as stated above.

CONCLUSIONS:

1.  The applicant was improperly removed from the CY97 SFC promotion list 
due to a local bar to reenlistment that was initiated after the convening date of the promotion board.  The bar to reenlistment was favorably resolved and removed.  The improper action to remove the applicant from the promotion list was based on a promotion regulation interim change that had expired before the promotion board convened, before the bar to reenlistment was initiated, and before the applicant was removed from the promotion list.  As a matter of justice, this error should be corrected by restoring the applicant to the promotion list, promoting him to SFC effective 1 January 1998 as though he had not been removed, and providing him back pay and allowances.

2.  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 for the individual concerned by:

	a.  voiding his 5 May 1998 removal from the CY97 SFC Promotion List; 

b.  restoring him to the CY97 SFC Promotion List as though he had never been removed;

c.  promoting him to SFC effective 1 January 1998; and

d.  providing him back pay and allowances in pay grade E-7 effective 
1 January 1998.

BOARD VOTE:  

__sc___  __kw___  __ac____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR1999032027	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.131.02	Removal from the Recommended Promotion List	
2.		
3.		
4.		
5.		
6.