MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 07 MARCH 2002
         DOCKET NUMBER: AR2001062968

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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: That her date of rank to the grade of Captain be adjusted.

APPLICANT STATES: That she has an erroneous date of rank due to the Reserve Officer Personnel Management Act (ROPMA). There were recent changes in Army promotion policy regarding time in service requirements for promotion to Captain in the Army Reserve.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was appointed a second lieutenant in the Army Reserve on 27 May 1989. An officer evaluation report shows that she was a member of a Quartermaster Company of the North Dakota Army National Guard from 18 August 1989 through 2 August 1990. She completed Quartermaster Officer Basic Course in November 1990.

The applicant was on active duty from 29 November 1990 through 27 May 1991 in support of Operation Desert Shield/Desert Storm, serving in Southwest Asia for 3 months and 29 days during that period.

On 23 March 1992 the applicant was promoted to the grade of First Lieutenant.

The applicant was discharged from the Army National Guard of North Dakota on 4 June 1994 in the grade of First Lieutenant and assigned to the Army Reserve Control Group (Reinforcement).

On 1 March 1996 the Total Army Personnel Command at St. Louis informed the applicant that she was considered but not recommended for promotion, and that her nonselection constituted her first passover for promotion. On 7 May 1998 she was again informed that she was considered but not selected for promotion, and that she had to be discharged in accordance with appropriate regulations.
Nonetheless, she was not discharged, and on 30 July 1998 the Total Army Personnel Command notified her that she had been selected for promotion with a promotion eligibility date of 22 May 1997.

On 25 August 1999 the Army Reserve Personnel Command at St. Louis notified the applicant, then a member of a Troop Program Unit (TPU) that she could not be promoted [in her unit] because she was not assigned to a valid position. She was given the option of accepting the promotion and transferring to the IRR, requesting a delay of promotion, or requesting a declination of promotion.

On 2 November 1999 the applicant was transferred from a Reserve Troop Program Unit (TPU) at Fort Sill, Oklahoma to the Army Reserve Control Group (Reinforcement) in order to accept a promotion.

A 6 September 2000 Certificate of Clearance and/or Security Determination (DA Form 873) shows that an Entrance National Agency Check was completed on 4 April 1994 and that she was granted a final Secret clearance on 8 November 1999.

On 12 January 2000 the Total Army Personnel Command in St. Louis informed her that she was promoted to Captain effective on 2 November 1999.

On 27 January 2000 the applicant was assigned from the Army Reserve Control Group (Reinforcement) to a Reserve Troop Program Unit (TPU) in Broken Arrow, Oklahoma.

In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command at St. Louis. That command stated that the applicant
was considered for promotion to Captain by a board that met on 14 November 1995, by a board that met on 12 November 1996, and by a board that met on 12 November 1997. She was also considered but not selected (because of material error - no officer evaluation reports were available to the 12 November 1996 board) by a May 1997 special selection board under 1996 criteria. She was, however, considered and recommended by the board that met on 12 November 1997. One year was added to her prior promotion eligibility date (PPED) because of her previous nonselection for promotion. However, at the time of the release of the selection board’s recommendations, the applicant could not be promoted because of an outdated security clearance. The applicant transferred to a TPU, however, was still not promoted. She transferred back to the Individual Ready Reserve (IRR), met the required qualifications for promotion, and was promoted on 2 November 1999, the date she transferred to the IRR. Had she met all the promotion qualification criteria while in the IRR, the earliest date the applicant could be promoted would be 25 June 1998, the date the President approved the board results. That command recommended that the applicant’s request be denied.

On 1 December 2001 in her rebuttal to the advisory opinion the applicant stated that she was not promoted in May 1997 because of an outdated security clearance, and despite numerous attempts beginning in April 1997 to have her clearance updated, her final clearance was not granted until 8 November 1999. She stated that in December 1998 she had transferred from the IRR to a TPU, but could not be promoted because she was not in a position vacancy in her assigned unit and because her security clearance was not granted. She had to transfer to the IRR on 2 November 1999 to accept her promotion. She stated that had the Department of Defense not been so terribly back logged in 1997, she would have been promoted at that time.

The results of the 12 November 1996 selection board was not approved until 12 June 1998. This is the board that resulted in her being a two time non select for promotion to Captain. The results of the 12 November 1997 selection board, which did recommend her promotion, was approved on 25 June 1998.

Information obtained from the Central Clearance Facility (CCF) at Fort Meade, Maryland, on 16 January 2002, revealed that facility had received a report of derogatory information on the applicant in October 1993. An investigation ensued and in December 1994 the applicant was issued a letter of intent to revoke her security clearance. She did not respond to that letter and on 11 May 1995 her clearance was revoked based on that nonresponse. However, in August 1997 she requested reconsideration of the decision to revoke her clearance. The investigation was reopened in September 1997, completed in June 1998 and in December of that year she was again issued a letter of intent to revoke her clearance. She submitted a rebuttal on 5 April 1999. Nonetheless, her clearance was revoked on 27 April of that year. On appeal, her clearance was granted, effective on 8 November 1999.

The personnel provisions of the Reserve Officer Personnel Management Act became effective on 1 October 1996. Among other provisions, the act eliminated the time in service requirement for promotion.

Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army Reserve. Paragraph 2-5 states in pertinent part that to be eligible for consideration for promotion to the next higher grade, an USAR officer must have continuously performed service on either the RASL (Reserve Active Status List) or the ADL (Active Duty List) (or a combination of both) during the 1-year period ending on the convening date of the promotion board, and must meet time in grade (TIG) requirements. The minimum time in grade for promotion to Captain is 2 years, the maximum, 5 years.

Paragraph 4-19 states that the promotion of an officer selected after having been failed of selection on a first mandatory consideration cannot be earlier than the approval date of the second mandatory board by which the officer is considered.

Paragraph 4-30 states in pertinent part that an officer who twice fails to be selected for promotion to the grade of Captain will be removed from active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. A First Lieutenant on the RASL who has failed selection for promotion to Captain for the second time and whose name is not on a list of officers recommended for promotion to Captain, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time.

Paragraph 4-11 states that an officer who has been recommended for promotion to the next higher grade must have undergone a favorable security screening before being promoted.

Paragraph 4-13 states that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion. The military personnel records jacket or the Personnel Electronic Management System (PERMS) will be screened to ensure that derogatory or unfavorable suitability information is not contained therein. If the screening reveals derogatory or unfavorable suitability information, the promotion authority will cause a National Agency Check to be conducted. Final action of the promotion will be withheld until the results of the NAC are received.

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

1. The applicant was first considered for promotion to Captain by the board that met on 14 November 1995 prior to the implementation date of ROPMA, not recommended, and considered again by the board that met on 12 November 1996, and again not recommended. At that time she was a two time nonselect for promotion to Captain. She did, however, go before a special selection board in May 1997, and again was not selected for promotion. She should have been discharged from an active status or transferred to the Retired Reserve if she was eligible. However, the results of the second board were not approved until 12 June 1998, and in the interim she was considered and selected for promotion by the board that met on 12 November 1997 with a promotion eligibility date of 22 May 1997 in accordance with the regulation. The results of that board were not approved until 25 June 1998, the earliest date that the applicant could be promoted, if she had been eligible. She was not penalized by the advent of ROPMA in 1996. There was no time in service requirement for promotion to Captain upon the implementation of ROPMA.

2. However, the applicant’s clearance had been revoked in May 1995 and it was not until August 1997 that she requested reconsideration of the decision to revoke her clearance. An investigation was reopened, she was again issued a letter of intent to revoke her clearance in December 1998. Her clearance was again revoked on 27 April 1999 despite her rebuttal; and only granted on 8 November 1999 upon her appeal. Consequently, from the time she was selected for promotion until the time her clearance was granted she could not be promoted. Notwithstanding the applicant’s contentions, there appeared to be no undue delay in the adjudication of her clearance. Had she responded to the December 1994 initial letter of intent to revoke her clearance, the matter might have been sooner settled.

3. She did not have a position vacancy in her assigned unit, a requirement for her promotion. She was not granted a clearance until 8 November 1999. She transferred to the IRR in order to get promoted. She was promoted in accordance with regulations.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

6. 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

__RVO__ __JPI ___ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062968
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020307
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	21
3.
4.
5.
6.