PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             4 September 2003                 
	DOCKET NUMBER:    AR2002081965

	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. Raymond V. O’Connor . 		Chairperson	
	Mr. Frank C. Jones		Member	
	Ms. Barbara J. Ellis 		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 a correction be made to his promotion date to major/0-4 (MAJ/0-4).

3.  The applicant states, in effect, that the MAJ/0-4 promotion list he was on was released on 19 June 2002.  He claims that he had been in a MAJ/0-4 position for 25 months prior to the list being released, and he requests that the effective date of his promotion be changed from 27 September 2002 to 27 August 2001.  In support of his application, he provides a copy of a unit manning document, his assignment letter, and promotion list.  

4.  The applicant’s military records show that as of the date of his application to this Board, he was serving as a MAJ/0-4 in a Troop Program Unit (TPU) of the United States Army Reserve (USAR).  

5.  On 5 October 2000, Orders Number 00-279-015, issued by Headquarters, 65th U.S. Army Regional Support Command, Fort Buchanan, Puerto Rico, directed the applicant’s reassignment to Fort Buchanan, for duty in line number 02A and position number 0105 of Headquarters and Headquarters Company, Army Service Component Command.  An extract of a unit manning document provided by the applicant confirms that the position he was assigned to carried an authorized grade of 0-4.  

6.  The applicant was selected for promotion to MAJ/0-4 by the Fiscal Year 
2002 (FY02) MAJ/0-4 Reserve Component (RC) Promotion Selection Board (PSB).  The promotion list that resulted from this PSB was approved by the President on 19 June 2002, and the applicant was promoted to MAJ/0-4, effective and with a date of rank of 27 September 2002.

7.  In connection with the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command (ARPERSCOM).  It confirms that the applicant was selected for promotion to MAJ/0-4 by the FY02 RC PSB, and that the promotion list was approved by the President on 19 June 2002.  However, it indicates that the applicant was not qualified for promotion until 27 September 2002, when he obtained the necessary security clearance. 

8.  On 24 February 2003, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, the applicant has failed to reply. 

9.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  Chapter 2 contains the eligibility for consideration and general qualifications for promotion selection.  A specific security clearance requirement is not included in the list of eligibility qualifications.  

10.  Paragraph 4-11 of the same regulation states, in pertinent part, that an officer who has been recommended for promotion must have undergone a favorable security screening before being promoted in the RC.   Paragraph 4-13 outlines the security screening requirement.  It states, in pertinent part, that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  The security screening process is described as a review of an officer’s military personnel records Jacket (MPRJ) or Personnel Electronic Management System (PERMS), which ensures there is no derogatory or unfavorable suitability information contained therein.  It further states that if the results of this screening are favorable, final promotion action may proceed.  A promotion will be withheld only when the security screen reveals unfavorable or derogatory information, and the promotion authority is required to process a National Agency Check (NAC).  

11.  Title 10 of the United States Code, section  12203 establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, if otherwise qualified the promotion effective date is the date the list is signed by the President.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that a correction should be made to his promotion date to major/0-4 (MAJ/0-4), and it finds this claim has merit.  Although the Board does find sufficient evidence to support establishing the applicant’s promotion effective date to 19 June 2002, the date the President approved the list, it does not find an evidentiary basis to support the applicant’s request to change his promotion date to 27 August 2001, the date he assumed an 0-4 position.  The law does not allow for promotion until the President has approved the promotion list.  

2.  By regulation, a promotion will be delayed for security reasons only when a screening of the MPRJ or PERMS reveals derogatory or unfavorable suitability information.  Notwithstanding ARPERSCOM’s opinion that the applicant’s promotion was properly delayed until he obtained an appropriate security clearance, the Board finds insufficient evidence to support this determination.  

3.  The evidence of record confirms that the applicant was selected for promotion by the FY02 MAJ/0-4 RC PSB, and that this promotion list was approved by the President on 19 June 2002.  It also verifies that he was serving in an 0-4 position on the date the list was approved.  There is no indication that derogatory or unfavorable information was found during a review of the applicant’s record during the security screening process for promotion.  Lacking a discovery of this type of information, the Board finds no regulatory basis for the delay in the applicant’s promotion.  

4.  By law, if otherwise qualified, RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  In this case, the promotion list that contained the applicant’s name was approved by the President on 19 June 2002.  

5.  The evidence of record confirms that the applicant was selected for promotion by the FY02 MAJ/0-4 RC PSB, and that this promotion list was approved by the President on 19 June 2002.  It also verifies that he was serving in an 0-4 position on the date the list was approved. Further, his security clearance was ultimately validated, which provides additional evidence that there was no security disqualification that should have delayed his promotion. 

6.  In view of the facts of this case, given the applicant was filling an authorized 0-4 position and was otherwise qualified, the Board concludes that the effective date of his promotion and his MAJ/0-4 date of rank should have been established as 19 June 2002, the date the President signed the promotion list.  Thus, the Board concludes that it would be appropriate to correct his record to reflect this date at this time, and to provide him any back pay and allowances due as a result.  

7.  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 changing the promotion effective date and date of rank to major/0-4 of the individual concerned to 19 June 2002; and by providing him any back pay and allowances due as result.  

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

BOARD VOTE:  

__FCJ___  __BJE__  ___RO _    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor
		   CHAIRPERSON

INDEX

CASE ID	AR2002081965	
SUFFIX		
RECON		
DATE BOARDED	2003/06/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  21	102.0700	
2.  310	131.0000	
3.		
4.		
5.		
6.