MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2001064810

         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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 his date of rank (DOR) to master sergeant (MSG) be adjusted from 22 August 2001 to 1 May 2001 (sic 2000) and that he be awarded all back pay and allowances to which he is entitled.

APPLICANT STATES: When he was selected for promotion to MSG, he was notified that he did not possess the required security clearance to be eligible for promotion. He states that he immediately applied for the security clearance through his local security manager in April 2000. Due to the backlog of investigations, he could not be granted an interim security clearance which placed him in a non-promotable status until the investigation was completed on 22 August 2001. He contends that, as a result of the current backlog of investigations, it took approximately 16 months for the Defense Security Services (DSS) to complete his investigation due to no fault of his own. The applicant did not submit evidence in support of his application.

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

The applicant enlisted in the Regular Army on 27 October 1982 in pay grade E-1. He has continued to serve on active duty through a series of reenlistments. He was promoted to sergeant first class (SFC) with an effective date and DOR of 1 January 1997. The applicant was promoted to MSG with an effective date and DOR of 22 August 2001. The applicant is currently serving on active duty in the rank of MSG.

Records show the applicant was considered by the Calendar Year (CY) 2000 MSG Promotion Selection Board. He was selected for promotion by this Board and was so notified on 17 April 2000. Promotions from that list were made through his sequence number on 1 May 2000.

On 2 May 2000, PERSCOM notified the applicant that he was not qualified to be promoted to the rank of MSG because he failed to meet the security clearance requirements.

There is no evidence available to the Board which shows the date the applicant applied for a security clearance.

The applicant’s DA Form 873 (Certificate of Clearance and/or Security Determination) prepared by the Central Personnel Security Clearance Facility (CCF), indicates that his security clearance was granted on 22 August 2001. As a result, orders were published by the U.S. Total Army Personnel Command (PERSCOM), dated 6 September 2001, which promoted him to MSG with an effective date and DOR of 22 August 2001.

In the processing of this case, a staff advisory opinion was obtained from the Chief of the Promotions Branch at PERSCOM. The opinion points out that the applicant was selected for promotion by the CY2000 MSG Selection Board and was promoted to MSG with an effective date and DOR of 22 August 2001, the date his secret clearance was granted. The opinion also states that promotions were made through the applicant’s sequence number on 1 May 2000; however, he was not promoted because he failed to meet the security clearance requirement. The opinion referenced Army Regulation 600-8-19,
paragraph 1-16, which states that promotion to MSG and SGM [sergeant major] requires a favorable National Agency Check, Local Agency Check, and Credit Check (NACLC) or a security clearance of secret or higher. The opinion also stated that the applicant was not eligible to be promoted to MSG until he met the security clearance requirement; therefore, he is not entitled to a retroactive promotion. The Chief of the Promotions Branch concluded that the applicant’s request to backdate his DOR would afford him an unfair advantage not given to other soldiers and recommended that the application be denied.

A copy of the advisory opinion was provided to the applicant in order to allow him to submit comment or rebuttal. In summary, the applicant contends he was notified by the Promotions Branch on 29 April 2000 that he did not possess the appropriate level of security clearance to be promoted to MSG as stated in the advisory opinion. He submitted the necessary application to acquire a security clearance on or about 5 May 2000 and was informed that it would take from 12 to 24 months to complete due to the backlog of investigations conducted by DSS. He contacted DSS on numerous occasions to check the status of his security clearance and was informed that the investigations were opened in the order they were received. His investigation was opened by DSS in March 2001 and forwarded to the regional office in Fort Campbell, Kentucky. In July 2001, he contacted the regional office and was informed that it would take 1 to 2 months to complete. He states that he received his approved clearance on 22 August 2001, which became his effective DOR to MSG. He referenced paragraph 4 of the advisory opinion, which states that, “To backdate MSG [applicant’s name] DOR, would afford him an unfair advantage not given to other soldiers.” He contends that it would not affect his eligibility to be promoted to the next higher grade because he would be in the same zone of consideration for promotion. He states that he has exhausted every option to meet the requirement to receive the appropriate level of security clearance prior to the date his sequence number was selected. He feels that he should not be punished for something he had no control over. In conclusion, he asks the Board to vote favorably in his case based on the facts he has provided and he feels that his DOR should be the original date of 1 May 2001.

In support of his rebuttal to the staff advisory opinion, the applicant provided a memorandum, dated 25 February 2002, from the Unit Security Manager at Fort Knox, Kentucky. In this memorandum, the Unit Security Manager stated that he was the alternate Security Manager for the noncommissioned officer (NCO) Academy when the applicant initiated his request for a Secret security clearance. He stated the Academy was informed by the Security Division that those selected for promotion had to submit the required Standard Form 86 [Questionnaire for National Security] and supporting documentation, in a timely manner. He further stated that the Security Division was unable to issue the applicant an interim security clearance which made the investigative process critical. He concluded that the length of time to process the clearance was out of the control of the applicant.

The applicant also provided a memorandum, dated 26 February 2002, from the Division Chief of the U.S. Army NCO Academy at Fort Knox, Kentucky. In the memorandum, the Division Chief stated that, “a soldier should not be penalized for a systematic problem by DSS. The soldier is not responsible for the backlog of investigations at DSS”. He further stated that the applicant was proactive and exhausted all means humanly possible to get this matter resolved prior to 1 May 2001. He requested that the Board rule favorably for the applicant and grant him his original DOR of 1 May 2001.

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs the enlisted promotions and reductions function of the military personnel system. Paragraph 1-16 of this regulation governs the security clearance requirements for promotion. Specifically, it states that promotion to MSG and SGM requires a favorable National Agency Check, Local Agency Check, and Credit Check (NACLC) or a security clearance of Secret or higher.

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 Board considered the applicant’s request that his DOR to the rank of MSG be adjusted from 22 August 2001 to 1 May 2001.

2. Evidence of record shows the applicant was selected for promotion by the CY2000 MSG Selection Board and promotions were made through his sequence number on 1 May 2000. However, he did not meet the security clearance requirements; therefore, he was not promoted at that time.

3. Records show the applicant’s security clearance was completed on 22 August 2001 and he was promoted to MSG on that date.

4. The Board considered the contentions submitted by the applicant and the statements from the Unit Security Manager and the Division Chief of the U.S. Army NCO Academy in support of the applicant. However, in accordance with the governing regulation, the applicant was not fully qualified for promotion to MSG until he met the security clearance requirements.

5. Based on the foregoing, there is no basis for adjusting the applicant’s DOR to MSG from 22 August 2001 to 1 May 2001.

6. 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 this requirement.

7. 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

FNE_____ BJE_____ REB_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064810
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020418
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	102.0700
2.
3.
4.
5.
6.