PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 2003
	DOCKET NUMBER:   AR2002079632

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Antonio Uribe		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 retired rank and pay grade be changed to master sergeant/E-8 (MSG/E-8).

3.  In a case inquiry form submitted to a Member of Congress, the applicant states, in effect, that his retired grade and pay be corrected based on the mistakes made by the Army while he was serving on active duty.  The applicant outlines what he characterizes as the unjust allegations and circumstances that led to his receiving a relief for cause Noncommissioned Officer Evaluation Report (NCOER) and a Memorandum of Reprimand (MOR) that was approved for filing in his Official Military Personnel File (OMPF) by a general officer (GO).  

4.  The applicant claims that upon his completion of a tour in Korea, while he was awaiting the resolution of his case before this Board, he was reassigned back to Fort Rucker, where the events that were still unresolved occurred.  He obtained the agreement of the command at Redstone Arsenal, Alabama to remain attached there while until his case was finally resolved; however, Department of the Army (DA) Aviation Branch officials directed that he report to Fort Rucker or retire.  He states that he opted to retire because he was advised by the doctor, who was treating him for his severe depression, that he could not withstand a return trip to Fort Rucker.  

5.  The applicant indicates that after he retired, he finally got a resolution of his case when he received promotion orders with a letter from DA promotion officials explaining that he had been selected for reinstatement on the promotion list by a Stand-By Advisory Board (STAB).  He claims that had he been allowed to remain at Redstone Arsenal and continue treatment for his depression until this action was complete, the condition would not now exist and he would not have this current problem.  

6.  The applicant finally states that although he did not complete the minimum service requirements for retirement as a MSG/E-8, based on the injustice served upon him and the resultant medical condition he suffered, he believes there are sufficiently mitigating and extenuating circumstances involved in his case that would warrant exception to the service obligation policy and to have his retired grade changed accordingly.  He concludes that this is even further supported by the fact that he still suffers from and is being treated for mental illness that was caused by the incidents at Fort Rucker, and it is likely he will continue to suffer from this illness for some time, perhaps forever.  He claims that given his situation, he deserves the requested relief.  In support of his application, he provides a letter of inquiry submitted by a Member of Congress in his behalf, a supporting statement from his legal counsel in Korea, and medical statements from two separate physicians who treated the applicant for depression in January and May 2001. 

7.  The applicant’s military records show that he served on active duty in the Regular Army for a total of 20 years, 5 months, and 23 days.  On 29 February 2000, he was honorably released from active duty (REFRAD) for the purpose of retirement.  

8.  In the fall of 1997, the applicant was involved in an incident at Fort Rucker, Alabama, that resulted in his receiving a relief for cause NCOER and a MOR that was ultimately filed in the performance portion of his OMPF.  

9.  In February 1998, a DA Centralized Promotion List was published announcing the applicant’s selection for promotion to MSG/E-8.  In August 1998, the applicant’s command at Fort Rucker initiated action to remove him from the promotion list.  

10.  On 1 August 1998, the applicant submitted an application to this Board requesting that the NCOER and MOR in question be removed from his record and that he be made whole from the injustice imposed on him by members of the chain of command at Fort Rucker, and in September 1998, he was reassigned to Korea.

11.  In February 1999, a DA STAB recommended approval of the request to remove the applicant’s name from DA Centralized Promotion List, and in March 1999, the Army Deputy Chief of Staff, Personnel (DCSPER) approved the recommendation, and the applicant’s name was removed from the list at that time.

12.  In September 1999, the applicant departed Korea on DA assignment instructions to Fort Rucker.  While he was in route to Fort Rucker, he was attached to Redstone Arsenal.  While attached to Redstone Arsenal, the applicant was given the option by DA Aviation Branch officials to either proceed to Fort Rucker or to retire.  At that point, he opted to retire, and on 29 February 2000, he was separated for the purpose of retirement.

13.  In February 2000, this Board recommended (AR1999020976) that the relief for cause NCOER the applicant received for the period October through December 1997 be removed from his OMPF, and that his records be referred to a STAB to determine if his name should have been removed from the 1998 DA Centralized Promotion List.  

14.  A 23 August 2002 memorandum from the Chief, Enlisted Promotions, Promotions Branch, Total Army Personnel Command (PERSCOM), indicated that the DA STAB that adjourned on 22 June 2000 recommended that the applicant be reinstated on the promotion list to MSG/E-8.  As a result, Orders Number 235-10, dated 22 August 2000, were issued by PERSCOM, authorizing the applicant’s promotion to MSG/E-8, effective 1 February 1999.  
15.  On 29 February 2000, the applicant was REFRAD for the purpose of voluntary retirement.  The DD Form 214 issued to him on that date shows that he was separated at Redstone Arsenal, and that he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) at that time.  

16.  Medical supporting statements provided by two separate physicians who treated the applicant for depression.  The first letter, dated 9 January 2001, indicates that the applicant was diagnosed with insomnia and depressive tendencies, and as a result he was placed on medication.  The second letter, dated 20 May 2001, was from the Chief, Behavioral Medicine, Fox Army Health Center, Redstone Arsenal, and it indicates that the applicant was referred to him by his medical doctor.  The medical doctor felt it would be helpful to the applicant to discuss some of his stressors with a therapist, and this resulted in the referral to him.  

17.  Army Regulation 635-200 sets forth the Army’s policy and procedure for the administrative separation of enlisted soldiers.  Chapter 12 provides the policies and procedures for voluntary retirement.  It states, in pertinent part, that retirement will normally will be in the regular or reserve grade the soldier holds on the date of retirement as authorized by Title 10 of the United States Code, section 3961.  

18.  Paragraph 12-8 provides guidance on service obligations and indicates that soldiers who are promoted to the grades of E-7, E-8, or E-9 incur a 2-year service obligation before they can voluntarily retire.  However, it also stipulates, in pertinent part, that a promoted individual may not be administratively reduced to terminate a promotion service obligation.  Paragraph 12-11 provides guidance on waivers of service obligations, and it states that exceptions to service obligations may be granted when the best interest of the Service is involved or when substantial hardship exists or would result if the soldier is not retired. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his retired grade should be corrected to MSG/E-8 in view of the facts and circumstances that resulted in his retirement prior to completing the required promotion service obligation, and it finds this claim has merit.  

2.  By regulation, a promoted individual may not be administratively reduced to terminate a promotion service obligation, and waivers of promotion service obligations may be granted for the good of the service or based on hardship.  

3.  The evidence of record clearly shows that as a result of a recommendation of this Board to remove a contested NCOER from the applicant’s OMPF, a DA STAB determined that the applicant’s name should be reinstated on the 1998 
DA Centralized Promotion List.  This resulted in the applicant being promoted to MSG/E-8, effective 1 February 1999.  The record also shows that on the effective date of his promotion, the applicant was in a promotable status and serving in Korea.  

4.  In view of the facts and circumstances of this case, the Board concludes that it would be appropriate to correct the applicant’s record to show that he was promoted to MSG/E-8 on 1 February 1999, and that based on his diagnosed medical condition, he was granted a waiver of his 2 year promotion service obligation and allowed to retire as a MSG/E-8.

5.  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 by showing that the individual concerned was promoted to MSG/E-8 on 
1 February 1999, and providing him any back active duty pay due through
29 February 2000; by showing that he was granted a waiver of his two year promotion service obligation for hardship reasons based on his existing medical condition, and by providing him a corrected separation document that shows he held the rank and pay grade of MSG/E-8 on 29 February 2000, the date he was REFRAD; and  by showing that he was placed on the Retired List in the rank and pay grade of MSG/E-8 on 1 March 2000, and providing him any back retired pay due as a result. 

BOARD VOTE:  

__SAC__  __RKS  _  __ AU  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Samuel A. Crumpler_  __
		      CHAIRPERSON

INDEX

CASE ID	AR2002079632	
SUFFIX		
RECON		
DATE BOARDED	2003/02/11	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/02/29	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.