MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001057823

         I certify that hereinafter is recorded the record of consideration 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. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In a new application, that his date of rank (DOR) and effective date to the pay grade of E-8 be adjusted to May 1992, that his DOR and effective date for promotion to the pay grade of E-9 be adjusted to May 1994, that he be assigned to a 92A50, E-9 position, or as an alternative, that he be granted an exception to policy to attend 75H10/20 reclassification training that will lead to award of a military occupational specialty

APPLICANT STATES: In effect, that the Board failed to grant him the proper relief in his previous application and the above cited relief is the appropriate level of relief under the circumstances. He further states that the Board failed to consider the events that led to his filing a complaint under the Whistleblower Act in 1993 and that the relief granted by the Board was not appropriate. He also states that while he was granted promotion reconsideration to the pay grade of E-8 and the removal of a noncommissioned officer evaluation report (NCOER) from his records, there was no statement placed in his records to explain the absence of a required NCOER, which had essentially the same effect as the adverse NCOER. He goes on to state that in regards to being military occupational specialty (MOS) qualified, he obtained his MOS qualification as soon thereafter as it was available. He continues by stating that United States Army Reserve (USAR) officials have continually violated regulations, as well as the Board’s directives and the violations have resulted in injustices that have imposed hardships on him as well as having impeded his career in the USAR. He provides an in-depth explanation in his application.

EVIDENCE OF RECORD: The applicant's military records were not available for review. However, information taken from his previous applications to the Board as well as the documents submitted by the applicant with his application show:

After having served 2 years and 7 months of prior service, he enlisted in the Regular Army on 3 July 1969. He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 15 July 1976.

On 19 June 1979, nonjudicial punishment (NJP) was imposed against him for misconduct. His punishment consisted of a reduction to the pay grade of E-5 and a forfeiture of pay.

As a result of the reduction in grade, the applicant exceeded the retention control point for his pay grade and was ineligible to reenlist. He was afforded the opportunity to extend for 90 days to apply for a waiver to reenlist and declined. Accordingly, he was honorably discharged in the pay grade of E-5 on 5 March 1980, due to the expiration of his term of service (ETS). He had served 13 years, 3 months and 13 days of total active service.

He applied to the Board requesting that the NJP be set aside, that his rank be restored and that he be restored to active duty. The Board granted him a personal appearance before a formal hearing and denied his request on 3 November 1982.

The applicant enlisted in the USAR on 29 August 1983 for a period of 3 years.

He again applied to the Board to have the NJP removed and the Board granted him relief on 8 January 1986, by removing the NJP from his records, setting aside the punishment, restoring the forfeiture of pay and rank and directing promotion reconsideration to the pay grade of E-7. The Board denied his request for restoration to active duty and he was subsequently not selected for promotion to the pay grade of E-7 by a Standby Advisory Board (STAB).

In May 1988, he filed a lawsuit against the Secretary of the Army regarding the failure of the Board to reinstate him to active duty. The Federal District Court ruled in favor of the government stating that he was not entitled to relief other than what he received from the Board. In January 1989, the Court of Appeals upheld the District Court’s decision.

On 4 May 1993, a report of survey was concluded which found the applicant pecuniary liable for the loss of eleven ground troop helmets valued at $1,441.55. He requested reconsideration of the report of survey of four different occasions and his requests were denied by the appellate authority on each occasion.

In March 1994 the applicant appealed an adverse NCOER covering the period from October 1992 to July 1993. His appeal was successful and the NCOER was set aside.

On 24 August 1994, the applicant was recommended for the award of the Army Achievement Medal (AAM); however, the recommendation was subsequently withdrawn.

On 22 January 1995, the applicant received a letter of reprimand (LOR) for unauthorized review of military correspondence. He refused to sign the LOR and it was placed in his Military Personnel Records Jacket (MPRJ).

The applicant again applied to the Board for reconsideration of his request to be restored to active duty and the Board again denied his request on 25 February 1996.

On 9 July 1997, while the applicant was serving in the pay grade of E-7, the Department of Defense Inspector General (DODIG) responded to the applicant’s application for whistleblower protection. The DODIG concluded that the applicant was improperly reprised against by being threatened with NJP on 1 July 1993, by removal from his position in a USAR unit in March 1994, reassignment in March 1995, transfer to the USAR Control Group in September 1995, imposition of a LOR and withdrawal of the recommendation for the AAM.

On 25 February 1998, the applicant again applied to the Board for reinstatement to active duty and the Board again denied his request.

On 6 July 1998, he applied to the Board requesting the revocation of orders transferring him to the USAR Control Group and credit for continuous service, pay, points and credit for time lost as result of the unlawful transfer. He also requested pay for time spent attending a MOS course, reconsideration for promotion to the pay grade of E-8 for positions announced in July 1995, reconsideration for promotion vacancies to the pay grade of E-9, reimbursement for funds withheld by the report of survey and reimbursement for legal fees in the amount of $25,212.55.

On 2 September 1998, the Board directed that the orders transferring the applicant to the USAR Control Group be revoked, that he be granted the appropriate points, creditable qualifying service for retirement, back pay, back pay for attending an MOS course, award of the AAM, reconsideration to the pay grade of E-8 and if already selected, that his DOR be adjusted to 1 July 1995 and reconsideration to the pay grade of E-9. The Board opined that the applicant had failed to show that the Report of Survey was improperly conducted and denied the remainder of his request.

The applicant again applied to the Board requesting that he be granted promotion reconsideration to the pay grade of E-8 for 1994. He contended, in effect, that his original (1998) request indicated his desire for reconsideration by the 1994 board, but it was not acted on. Additionally, the NCOER in question would have tainted his selection, but had subsequently been directed to be removed on appeal. The Board concluded that the expunged NCOER undoubtedly impacted his consideration for the 1994 vacancies and granted his request on 25 May 2000. The Board directed that he be granted promotion reconsideration for E-8 vacancies in 1994, based on the presence of the expunged NCOER in his records.

Meanwhile, on 9 April 2000, the applicant, who is now serving as a SGM, submitted a letter to the DODIG requesting an investigation of whistleblower reprisal against him in the form of a reassignment from his unit in Bronx, New York to Fort Drum, New York.

On 13 July 2000, orders were published directing a voluntary transfer of the applicant from Fort Drum to Bronx, New York, effective 12 June 2000. The position designated was a 75H50 position.

The DODIG informed the applicant on 24 October 2000, that after conducting an inquiry into his allegations, it determined that he had not filed his complaint, as required by law, within 60 days of the date he became aware of the circumstances and since he had received orders transferring him to an assignment within a reasonable commuting distance, there was no basis to his complaint.

On 22 January 2001, the Army Reserve Command (ARC) dispatched a memorandum to the Board indicating, in effect, that the Board has rendered its decision to grant promotion reconsideration to the applicant based on the presence of the cited NCOER in his case that had been removed from his record on appeal. However, the evidence of record showed that the cited NCOER was not in the applicant’s record at the time the two 1994 selections boards convened, that he was not MOS qualified at the time he was considered and was therefore ineligible for consideration. The ARC requested that the Board reconsider its decision for promotion reconsideration. The ARC memorandum was forwarded to the applicant for comment and resulted in his current application to the Board.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. It is always the Board’s intent that individuals be granted those benefits and opportunities for advancement that they otherwise would have been afforded had an error or injustice not have occurred. The Board, in its previous decision of the applicant’s case (AR2000040088), endeavored to ensure that the applicant was afforded the proper consideration for promotion that he would have had, had the cited NCOER not been in his records when the promotion boards reviewed them. However, in light of the new evidence which shows that the NCOER was not in his records at the time in question and since he was ineligible for promotion, there is no basis to grant him reconsideration for those boards that failed to select him.

2. The Board has noted the applicant’s contentions and reviewed the extensive evidence submitted with his current application. However, the Board finds that there is insufficient evidence to support his claims that USAR officials are violating his rights and the applicable regulations that apply to him. The Board also finds that he has also failed to show that he has properly exhausted his administrative remedies by making formal requests through his chain of command to resolve any issues of assignment, reassignment or training that have been improperly addressed.



3. While the applicant has made numerous allegations regarding the conduct of his chain of command, the Board finds that they are not supported by evidence of a convincing nature.

4. Likewise, the Board finds insufficient evidence to warrant granting the applicant’s request to back-date his DOR for promotions to the grades of E-8 and E-9 to 1992 and 1994, respectively. It appears that to do so would result in undue compensation and would afford him a benefit that he was otherwise not entitled to receive. Accordingly, the Board finds that there is no basis to grant him further relief than he has already received, based on the available evidence presented in this case.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___jhl ___ ___rtd___ __rjw ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057823
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 314	131.0400/prm eff date
2.
3.
4.
5.
6.