IN THE CASE OF: BOARD DATE: 19 August 2008 DOCKET NUMBER: AR20080010578 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests her date of rank (DOR) for promotion to sergeant (SGT)/E-5 be corrected from 23 September 2005 to 26 August 2004 (the date she completed the Electronic Warfare/Signal Intelligence Course) or 7 September 2004 (the date she arrived at her first duty station). 2. The applicant states, in effect, that she enlisted under the Army Civilian Acquired Skills Program (ACASP) as a Spanish/American Linguist with the condition that she be promoted to the pay grade of E-5 after completing all required training and demonstrating the appropriate level of proficiency, skill, and conduct. She goes on to state that she completed all of her training and demonstrated the appropriate level of proficiency; however, her commander denied her promotion because her National Security Agency (NSA) level clearance had not been completed. She further states that had she been assigned to a regular Army Military Intelligence site she would have been promoted; however, she was assigned to a unit that required an NSA clearance, which took longer than normal, and her unit waited until she received her NSA clearance and performed in her primary military occupational specialty (MOS) for 8 weeks, before promoting her to SGT/E-5. 3. The applicant provides the following additional documentary evidence in support of her application: a. Self-authored letter, dated 7 June 2008. b. Memorandum, dated 12 October 2007, Commander’s ACASP Issue Resolution Recommendation. c. DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United states), dated 21 January 2004, and allied documents. d. Enlisted Record Brief (ERB), dated 11 July 2008. e. DA Form 300 (Language Proficiency Questionnaire), dated 19 December 2003 and 12 May 2008. f. Certificate of Training, dated 23 August 2004, completion of Electronic Warfare/Voice Interceptor Spanish Course g. Orders 239-16, dated 26 August 2004, Award of MOS 98G (Electronic Warfare/Signal Intelligence Specialist). h. Orders 223-04, dated 10 August 2004, Reassignment Orders. i. Permanent Orders 026-904, dated 26 January 2007, award of the Good Conduct Medal. j. DA Form 4856 (Developmental Counseling Form), dated 28 February 2005, 6 May 2005, 11 July 2005, and 27 October 2005. k. Orders 329-600, dated 25 November 2005, Promotion to SGT/E-5 Orders. CONSIDERATION OF EVIDENCE: 1. The applicant’s records show she enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) for a period of 8 years on 19 December 2003. She subsequently enlisted in the Regular Army for a period of 5 years in the rank/grade of private first class (PFC)/E-3 on 22 January 2004 under the ACASP as a Spanish/American Linguist, for training as an electronic warfare/signal intelligence specialist and a $15,000 cash enlistment bonus. 2. Item 3 of the applicant’s DA Form 3286-68 (Statement for Enlistment-U.S. Army/Army Reserve Civilian Acquired Skills Enlistment Program) states “I will be advanced to pay grade 5 in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provided I receive a memorandum from my commander. Promotion is not automatic but depends upon my demonstration of proficiency, skill, and conduct.” 3. The applicant’s records show she completed basic combat training at Fort Jackson, South Carolina, in April 2004. She was transferred to Goodfellow Air Force Base, Texas, where she completed the Electronic Warfare/Voice Interceptor (Spanish) Course and was awarded MOS 98G on 26 August 2004. 4. On 6 September 2004, the applicant was reassigned to the 314th Military Intelligence Battalion, San Antonio, Texas, a subordinate unit of the 470th Military Intelligence Brigade, Fort Sam Houston, Texas, and the Intelligence and Security Command (INSCOM), Fort Belvoir, Virginia. She was subsequently assigned as a Cryptologic Linguist on 7 September 2004. 5. The applicant's records show she received favorable counseling by her squad leader on miscellaneous dates, during her tenure with the 314th Military Intelligence Battalion, as follows: a. on 28 February 2005, the applicant received a favorable event oriented and professional growth counseling; b. on 6 May 2005, the applicant received a favorable performance counseling; c. on 11 July 2005, the applicant received a favorable performance and professional counseling; and d. on 27 October 2005, the applicant received a favorable performance counseling. 6. On 23 September 2005, the applicant was promoted from PFC/E-3 to SGT/E-5 and on 28 February 2008, she completed the Warrior Leader Course (formerly known as the Primary Leadership Development Course (PLDC)). 7. On 12 October 2007, the Commander, 314th Military Intelligence Battalion, San Antonio, Texas, submitted a memorandum through the 470th Military Intelligence Brigade, Fort Sam Houston, Texas, to the Commanding General, INSCOM, Fort Belvoir, Virginia, providing a final recommendation on the disposition of unresolved unit ACASP issues. This memorandum specifically addressed one Soldier whose promotion was not timely due to a delay in granting her a final security clearance. The commander recommended a target promotion date within 10-14 weeks after an ACASP Soldier arrived in the unit, if otherwise qualified. The recommendation was coordination between INSCOM, the Department of the Army, and the Army Board for Correction of Military Records (ABCMR) to ensure equity to all Soldiers affected by the ACASP. The Soldier mentioned in the memorandum subsequently petitioned the ABCMR for correction of her records and was granted full relief. 8. In a self-authored statement, dated 7 June 2008, the applicant states that: a. she enlisted under the ACASP program, formerly known as the stripes for skills program, which qualifies non-prior service-members with critical Army needed skills to be granted an accelerated promotion, when they enlist for a certain MOS, meet all the requirements for that MOS, and can demonstrate proficiency to their training command. The primary requirements to be promoted to SGT/E-5 for MOS 35P (formerly 98G) are eligibility for Top Secret (TS) clearance with Sensitive Compartmental Information (SCI); successful completion of MOS 35 Course; and having a minimum score of “2” in the listening and reading comprehension portions of the Defense Language Proficiency Test (DLPT); and b. as a result of a formal Inspector General Action Report that was submitted to the higher headquarters (INSCOM) regarding another Soldier who encountered the same issue, the battalion commander provided a favorable recommendation. Since she completed the MOS training and showed proficiency and good conduct in the execution of her Soldierly tasks, she should be promoted to SGT/E-5 effective that date she completed the Electronic Warfare/Signal Intelligence Course on 26 August 2004. 9. Appendix 22 (ACASP) to Annex A of the 314th Military Intelligence Battalion Standing Operating procedure (SOP) establishes policies and procedures for processing ACASP enlistees within that battalion. It states, in pertinent part, that each company within the battalion will identify ACASP Soldiers upon arrival to the unit, ensure each Soldier receive 8 weeks of proficiency training in his/her skill, and ensure each Soldier is counseled using the DA Form 4856 after successful completion of proficiency training by the mission supervisor. The promotion authority commander may take action to deny or defer promotion to the accelerated grade. The reason for denying or deferring promotion may include any failure of the Soldier to demonstrate proper conduct during the proficiency training period or failure to demonstrate minimum required level of performance for the MOS and that the Soldier must be advised in writing using DA Form 4856. The effective date of promotion will be the first day after successful completion of 8 weeks of proficiency training. 10. In the processing of this case, a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1, Recruiting Policy Branch, Pentagon, Washington, D.C. It opined that an earlier advisory opinion, provided by the Chief, Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 1 July 2008, in a similar case, should stand. The advisory opinion rendered by the Chief, Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 1 July 2008, on yet, another Soldier from the same battalion, in a similar situation, stated, in pertinent part that: "There is no Army policy requiring a Top Secret clearance to begin the proficiency evaluation by the unit commander. Due to the significant time delay in processing the applicant's security clearance, the applicant was denied the opportunity to prove her ability to perform as a noncommissioned officer through no fault of her own. The delay is out of sync with the promotion advancement offered at the time of her enlistment. Counseling statements by her superiors during this period indicate her performance was commensurate with ACASP advancement and no derogatory information was provided. Coupled with the absence of a Unit Commander's specific date that [Applicant] became eligible to accept the accelerated promotion, a date that equates to 10 weeks after her arrival to the unit, and coincides with the date her proficiency pay was initiated." 11. In a telephonic conversation wit the Chief Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 29 July 2008, the Chief opined that if the applicant completed all of the required training, was demonstrating outstanding performance and proficiency in her duties, and was denied her advancement because her security clearance level had not been adjudicated, something beyond the Soldier’s control, the applicant should be provided relief. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that her promotion to SGT/E-5 was unjustly delayed has been noted and appears to have merit. At the time the applicant enlisted under the ACASP, she was informed that she would be advanced to SGT/E-5 upon completion of her required training; a demonstration of her proficiency, skill, and conduct and a favorable recommendation from her commander. 2. However, after completing her training, she was assigned to a unit requiring her to have a National Security Agency Top Secret security clearance and because the adjudication of her clearance was delayed, she was denied advancement to SGT/E-5 until 23 September 2005, over 1 year after she had enlisted and demonstrated that she could perform at the E-5 level. 3. While there may have been internal unit policies which required her security clearance to be adjudicated before she could be promoted under the ACASP, the applicant made a contract with the Army and she met all of the requirements specified in the contract on 7 September 2004, the date she was assigned in the MOS she enlisted for and was trained in. 4. Accordingly, it would be in the interest of justice to correct her DOR to show that she was promoted to SGT/E-5 on 7 September 2004, with entitlement to all back pay and allowances from that date. BOARD VOTE: __xxx___ __xxx___ __xxx___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was promoted to SGT/E5, effective and with a DOR of 7 September 2004, and entitlement to all back pay and allowances from that date. XXX _______ _ _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080010578 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010578 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1