PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            12 April 2000
	DOCKET NUMBER:   AR1999033927

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		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, reinstatement of 10 promotion points and promotion to the rank of staff sergeant/E-6 (SSG), effective 1 February 1999.

3.  The applicant states, in effect, that the noncommissioned officer in charge (NCOIC) of his local promotion section took away 10 points from his promotion point total in the education improvement area.  He claims that after the personnel detachment lost the document, which verified those 10 points, they arbitrarily took away the points.  He indicates that his attempts to correct this injustice through channels and his chain of command have yielded negative results.  He states that he attempted to resolve the situation through the 1st Personnel Command in Europe, but they refused to process the action.  He has enclosed the promotion point worksheet in question and the complete appeal packet, which was supported by the Chief of Staff of his unit, in support of his application.

4.  The applicant’s military records show that he has continuously served on active duty since he entered the Regular Army on 1 July 1997.  He is currently serving, in the rank of sergeant/E-5 (SGT), with the 21st Theater Support Command, located in Germany.

5.  On 16 October 1997, a recomputation of promotion points was conducted by the applicant’s servicing promotion branch, without the applicant present.  The promotion point worksheet completed during this process showed that the applicant had a new promotion point total of 745 points.  

6.  On 17 October 1997, the NCOIC of the servicing promotion branch formalized the promotion reevaluation and advised the applicant’s unit commander, by memorandum, that the applicant’s reevaluation had been approved and that his new promotion point total, effective January 1998, would be 735 points.  

7.  The 10 point difference between the promotion point worksheet prepared and the final reevaluation total was the result of a reduction of 10 points from the education improvement area.  These 10 points had been awarded the applicant on his original promotion point worksheet and had, prior to that time, been included in his promotion point total.  

8.  The promotion cut off score announced, by Headquarters, Department of the Army (HQDA), for promotion to staff sergeant/E-6, in the applicant’s military occupational specialty (MOS), was established at 740 points for promotions to be effective on 1 February 1999.  Had the original reevaluation score of 745 granted to the applicant in his recomputation stood, he would have qualified to be promoted to SSG at that time.  

9.  In October 1999, the applicant requested promotion as an exception to policy. In his request, he indicated that because of an error in his promotion points, as a result of the erroneous removal of 10 educational improvement points, he was not promoted to SSG on 1 February 1999, as he would have been had the points not been eliminated. 

10.  On 7 October 1999, the Chief of Staff, of the 21st Theater Support Command, recommended approval of the applicant’s request for promotion.  He stated that the supporting packet indicated that an error was made by the NCOIC of promotions, which resulted in the erroneous reduction of 10 points from the applicant’s promotion point total.  He indicated that it was imperative to expeditiously process the action in order to redress the injustice against the applicant.  

11.  On 15 November 1999, the Assistant Adjutant General (Asst AG), of the 
21st Theater Support Command, forwarded the applicant’s request for promotion, with the accompanying  promotion packet, to PERSCOM requesting their review of the case.  In this memorandum, the Asst AG indicated that he had attempted to process the request through the 1st Personnel Command, Germany, but they refused to process the action to Department of the Army.  He went on to comment that promotions in the field had become a nightmare and each separate personnel detachment were applying their own rules in awarding promotion points, and in many cases points are taken away while soldiers are deployed.  He concluded by requesting PERSCOM take immediate action on the case. 

12.  During the processing of this case the Board obtained an advisory opinion from the Chief of the Promotions Branch, U.S. Total Army Personnel Command (PERSCOM).  This opinion indicated that PERSCOM personnel had reviewed the applicant’s promotion packet and determined that his current promotion point total is 713 points, which did not meet or exceed the Headquarters, Department of the Army cutoff scores for 1 February 1999.  

13.  The PERSCOM advisory opinion also indicated that the applicant did not qualify for the 10 points in the educational improvement area because they were based on a duplicate CLEP test.  The applicant was provided a copy of this advisory opinion and was given an opportunity to respond to its contents.

14.  The applicant responded to the PERSCOM advisory opinion and requested that the PERSCOM reevaluation be reconsidered.  He commented that the 
10 points he requested was for educational improvement and he was not requesting duplicate points for CLEP tests.  He further states that he was required by the University of Maryland to improve his score in English Composition and did so, by 70 points.  
15.  He further claims that this should satisfy the intent of the regulation in granting educational improvement points.  He concludes that if these 
10 educational improvement promotion points not been excluded from his promotion points he would have exceeded the HQDA announced cut-off score for promotion to SSG on 1 February 1999.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. It is linked to AR 600-8 and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. 

17.  Figure 3-1 of the promotion regulation contains instructions for completing the DA Form 3355 (Promotion Point Worksheet).  In the specific instructions for awarding education improvement points it states, in pertinent part, that 
10 additional points may be awarded to any soldier who completes one of the following actions while on active duty:  obtains a high school diploma/GED or completes any accredited post-secondary course or test.  It further states that if recommended for SSG a soldier must have completed one of the actions while serving in the rank of sergeant/E-5.  

18.  The instructions contained in Figure 3-1 contain no exclusion to taking the same subject matter test twice.  In addition, there is no indication in the instructions that a duplicate test taken for improvement purposes would not qualify in the education improvement area.  Finally, it states that once the 10 additional points are awarded that they will remain with the soldier until he is promoted.  

CONCLUSIONS:

1.  The Board determined that primary issue is this case was not how many promotion points the applicant has at this point, but rather was he entitled to the 10 additional education improvement points that were removed from his promotion point total as a result of the October 1997 recomputation; and if so, would he have met a HQDA announced cut-off score for promotion to SSG on that basis.

2.  Notwithstanding the advisory opinion of PERSCOM, the Board concluded that the applicant did qualify for the 10 additional promotion points for education improvement.  In addition, it appears that had there not been extensive errors made in his promotion packet at the local level, he would have met the HQDA announced cut-off score for promotion to SSG, effective 1 February 1999, and he would have been promoted on that date.  Therefore, in the interest of justice and equity, the Board determined relief is warranted in this case. 

3.  The Board finds no regulatory exclusion to awarding education improvement points for a retaken CLEP test.  The regulatory criteria for awarding these points simply states that, for a member being recommended for promotion to SSG, they must have taken and passed a post secondary education course or test while holding the rank of SGT.  

4.  Finding no regulatory exclusion, the Board tends to agree with the opinion of the applicant that retaking a subject matter test to improve your educational standing, while a duplicate test, would clearly fall into the area of education improvement and should qualify for the award of those 10 additional promotion points.  

5.  Further, the regulation is clear in establishing that once education improvement points are granted, they will stay with a solider until he is promoted. Therefore, the Board concluded that the action taken to remove these points from the applicant’s records without conducting proper research, and prior to contacting the applicant, was an arbitrary and capricious action.  The Board found that this action resulted in an injustice to the applicant that should be corrected at this time.

6.  In view of the foregoing, 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 by showing that the individual concerned was promoted to the rank of staff sergeant/pay grade E-6, effective 1 February 1999.

2.  That the individual concerned be provided all back pay and allowances due as a result of this action.  

BOARD VOTE:  

___be___  ___jps___  __rgh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Robert G. Hinkle______
		        CHAIRPERSON

INDEX

CASE ID	AR1999033927	
SUFFIX		
RECON		
DATE BOARDED	2000/04/12	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 310	131.0000	
2.		
3.		
4.		
5.		
6.