PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 April 2003
	DOCKET NUMBER:   AR2002078028

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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 reconsideration of his requests to have his promotion to the pay grade of E-7 back-dated to 1991 and that he be granted concurrent promotions thereafter with entitlement to all back pay and allowances.

3.  The applicant states, in effect, that he was unjustly denied promotion consideration to the pay grade of E-7 by the 1991 Sergeant First Class (SFC) Promotion Selection Board because his bar to reenlistment was not removed from his records by the time the selection board convened.  He further states that the bar to reenlistment had been removed prior to the board convening and he had reenlisted; however, through an administrative error, it was not timely removed and he was not considered.  His counsel contends, in effect, that because the applicant was not considered by the 1991 SFC Promotion Selection Board, he was unjustly denied subsequent promotions to the pay grades of E-8 and E-9, which has denied him a benefit of a larger pension that he otherwise would have been afforded had the error and injustice not occurred.  In support of his application he submits a copy of a letter to his congressional representative from the Total Army Personnel Command (PERSCOM) and a copy of the removal of the bar to reenlistment.  

4.  The applicant’s military records show that he initially enlisted on 29 January 1974 and served as a light weapons infantryman until he was honorably released from active duty on14 January 1976.  He was transferred to the United States Army Reserve Control Group (Annual Training), where he remained until he again enlisted in the Regular Army on 27 December 1977 for training as a medical supply specialist.  He remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 June 1983. 

5.  In October 1988, the applicant was notified that the Department of the Army Calendar Year 1988 Master Sergeant/Qualitative Management Program (QMP) Board had determined that he should be barred from reenlistment due to the presence of a Record of Nonjudicial Punishment (DA Form 2627) and three noncommissioned officer evaluation reports (NCOER) indicating weaknesses in competency and leadership.

6.  The applicant appealed the bar to reenlistment under the QMP and it was administratively removed because the DA Form 2627 which reduced him to the pay grade of E-5 had been set aside and all rights and privileges were restored.

7.  He subsequently appealed the NCOERs and received a re-look by the Enlisted Standby Review Board for the SFC promotion boards that convened in 1986, 1987 and 1988.  He was again not recommended for promotion.

8.  Although the specifics are not contained in the available records, the applicant has provided a copy of an endorsement signed by a major general in August or September 1991, which approves the removal of a bar to reenlistment against the applicant.  The last legible date on this document is 23 August 1991.  In any event, the applicant reenlisted on 3 September 1991 for a period of 4 years in the pay grade of E-6.  He was promoted to the pay grade of E-7 on 1 June 1993.

9.  On 31 January 1996, he was honorably released from active duty and was placed on the Retired List effective 1 February 1996.  He had served 20 years and 20 days of total active service.

10.  On 24 June 2002, in response to a congressional inquiry, The Adjutant General (TAG) of the Army informed the congressional representative that the applicant was considered in the primary zone of consideration for promotion by the 1990 and 1992 selection boards and that he was not considered by the 1991 board because his records indicated that he was barred from reenlistment at the time.  That board convened on 8 October and adjourned on 7 November 1991.

11.  The applicant has twice applied to the Board requesting that his DOR be adjusted based on his not being considered by the 1991 selection board and both times the Board denied his request.

12.  Army Regulation 600-200 serves as the authority for granting promotion reconsideration.  It provides, in pertinent part, that the Enlisted Standby Advisory Board (STAB) considers records from the primary zone and secondary zone that were not reviewed by a regular board.

CONCLUSIONS:

1.  Although the applicant has not shown that he made any attempts at the time to ensure that an up to date record was forwarded to the promotion board, the fact remains that his bar to reenlistment was removed approximately 1 month prior to the convening date of the 1991 SFC Promotion Selection Board.  Accordingly, he was entitled to be considered for promotion by that board.  

2.  While the applicant is requesting that the Board direct that his promotion be backdated to 1991, the Board is inclined to grant him promotion consideration by a STAB, using the same criteria used by the 1991 board that failed to consider him.

3.  The Board finds that to grant him a DOR retroactive to 1991 would be inherently unfair and premature when the fact that he was previously nonselected on multiple occasions by both regular boards and STABs is considered.
4.  Likewise, to grant him subsequent promotions which he contends he would have received had the errors and injustices not occurred would also afford him a benefit not afforded to others in similar circumstances.  Therefore, the Board finds that if selected by a STAB for the 1991 promotion board, which results in an adjustment of his effective date and DOR, the applicant will be entitled to receive promotion consideration to the next higher grades, if eligible.

5.  Additionally, he is entitled to all back pay and allowances that result from any changes therein.

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 placing the records of the individual concerned before a STAB for promotion consideration using the same criteria used by the 1991 SFC Promotion Selection Board.  In the event he is selected, he will be entitled to all back pay and allowances that result therein and consideration by a STAB for promotion the next higher grades if applicable.

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

BOARD VOTE:  

___jhl ___  ___ym __  __rtd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann H. Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2002078028	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  313	131.0300/FAIL TO BE CONS	
2.		
3.		
4.		
5.		
6.