PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2002066540


         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. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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.

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2. The applicant requests that his date of rank be changed from 26 April to 1 February 2001.

3. The applicant states that he was not informed that his security clearance had expired. The expired security clearance resulted in his date of rank for promotion to master sergeant being adjusted from 1 February to 26 April 2001.

4. In support of his request, he submits copies of an email and letters supporting his promotion with an effective date of 1 February 2001.

5. The applicant’s military records show that he was promoted to master sergeant with an effective date and date of rank of 26 April 2001. He is currently a master sergeant on active duty.

6. A DA Form 4187, Personnel Action, was prepared by the applicant to request an exception to policy for promotion to master sergeant. He explained that neither he nor his command was informed that he did not meet the security clearance requirement for master sergeant. If he had been notified of this requirement, as the 22^nd Personnel Service Battalion normally does, he would have submitted all of the necessary documentation. Due to the lack of notification and his failure to meet the security clearance requirement his promotion was delayed for three months. He now possesses a security clearance and was promoted to master sergeant effective 26 April 2001.

7. In an E-mail from the applicant's battalion executive officer to the battalion commander, he summarized the applicant's situation. He stated that the applicant should have been promoted on 1 February 2001. The executive officer called the US Total Army Personnel Command (PERSCOM), when the applicant’s promotion orders were not received. PERSCOM confirmed that a notification memorandum to the applicant was never generated. The executive officer was told that there had been a problem at PERSCOM in generating the memorandums. However, a system was now in place to ensure all soldiers get a notification if they are in a nonpromotable status so that they can correct their deficiencies before their promotion date. The executive officer was informed that a DA Form 4187 would not be sufficient to rectify the applicant’s promotion date issue. He was advised to have the applicant appeal to this Board.

8. The local personnel management officer, in a memorandum to the applicant’s battalion commander advised that after a careful review of all of the facts in the case and close coordination with Headquarters Department of the Army (HQDA), Senior Enlisted Promotions Branch, the applicant's request for change of the effective date of his promotion would be returned without action. HQDA stated it is the individual's responsibility to read the zone promotion message. They further advised that the applicant could appeal to this Board for relief.

9. Military Personnel (MILPER) Message Number: 00-016, Subject: Zones of Consideration for Promotion to Master Sergeant and Qualitative Management Program Screen for Sergeant First Class, provided policy and guidance for soldiers being considered for promotion to master sergeant. A review of the message contains no statements pertaining to security clearances.

10. Order Number 120-3 dated 30 April 2001, promoted the applicant to master sergeant effective 26 April 2001.

11. In the processing of this case, an advisory opinion was obtained from the PERSCOM, Promotion Branch. The Promotion Branch opined that the Current Year 2000 Master Sergeant Selection Board selected the applicant for promotion. Promotions were made through the applicant's sequence number on 1 January 2001; however, he was not promoted because he failed to meet the security clearance requirement. The applicant was promoted to master sergeant with a date of rank of 26 April 2001, the date his secret clearance was granted. The applicant was not eligible to be promoted to master sergeant until meeting the security clearance requirement; therefore, he was not entitled to a retroactive promotion.

12. The applicant responded to the PERSCOM's opinion by stating that he initiated the request for adjustment of his effective date of rank based upon the fact that neither he nor anyone in his chain of command was aware of his security clearance status. It was not until he inquired as to why his promotion had not gone into effect that his unit began to research the cause of the problem. He does not believe that favorable action upon his request would unfairly advantage him rather it would correct the disadvantage already placed on him. He received no notification of the requirement to update his security clearance. There is no requirement for a security clearance in his current position (recruiter) and his unit had no procedure in place to ensure that this type of situation could be avoided. He neither willfully nor negligently failed to do anything to cause the delay of his promotion nor did he have any derogatory information in his file to cause a delay. He would have completed all requirements had he been aware of them.

13. The applicant's brigade commander also responded to the advisory opinion. He states the request for adjustment of the applicant's date of rank is based on the fact that the applicant was neither aware of nor informed of the requirement for a security clearance prior to the effective date of his promotion. The failure to obtain an updated security clearance was not due to any fault on the part of the individual, but that of the system to include this command. It is not the argument of the applicant that he should be granted an exception to the rule, but rather he not be penalized for a system's failure to ensure he executed the requirements prior to his selection date. To update the applicant's date of rank would not afford him an unfair advantage not given to other soldiers. Correction of the applicant's date of rank is in the best interest of the soldier and the Army. It sends a clear signal to members of the field that their command stands behind them and accepts the responsibility for its shortcoming affecting their opportunities to succeed.

14. Army Regulation 600-8-19, Enlisted Promotions and Reductions, provides, in pertinent part, that the security clearance requirement for promotion to master sergeant requires a favorable National Agency Check, Local Agency Check, and Credit Check or a security clearance of secret or higher.

15. Army Regulation 380-67, Personnel Security Policy, provides, in pertinent part, that the issuance of a personnel security clearance or the determination that a person is suitable for assignment to sensitive duties cannot be considered as a final personnel security action. Rather, there is the clear need to ensure that, after the personnel security determination is reached, the individual’s trustworthiness is a matter of continuing assessment. The responsibility for such assessment must be shared by the organizational commander or manager, the individual’s supervisor and, to a large degree, the individual himself. Therefore, the heads of Department of Defense components shall establish and maintain a program designed to evaluate on a continuing basis the status of personnel under their jurisdiction with respect to security eligibility. This program should ensure close coordination between security authorities that all pertinent information available within a command is considered in the personnel security process.

16. MILPER Message Number: 00-190, Subject: Zones of Consideration for Command Sergeant Major Appointment (CSM), Promotion to Sergeant Major, Selection for US Army Sergeant Major Academy and the Qualitative Management Program. The message advises that promotion to CSM requires a favorable national agency check, local agency check and Credit Check (NACLAC) or a security clearance of secret or higher.

CONCLUSIONS:

1. PERSCOM utilizes MILPER messages to communicate the latest promotion policy and not Army Regulation 600-8-19. MILPER Message 00-016, provided the applicant and his peers with instructions and guidance on the steps necessary to prepare their records for the master sergeant selection board. It contains no information concerning security clearances. It is noted that the MILPER Message 01-190 that provides guidance for those eligible for selection to CSM does alerts soldiers to the background check and security clearance requirement. In addition, a review of the personnel security regulation finds no instructions that charge the individual soldiers with responsibility for monitoring the expiration date of their security clearance. The Board finds itself in agreement with the opinion written by the applicant's brigade commander, that the applicant is not asking for an exception to the rule but rather he is asking not to be penalized for a system's failure. The Board also agrees that adjusting the applicant's date of rank does not give him an undeserved advantage over other soldiers in similar situations. The applicant's executive officer stated he was advised by PERSCOM that they had a problem getting notification memorandums out, which were normally sent early enough to allow soldiers to make corrections before their promotion date. Given the circumstances in this case, the Board is inclined to believe that the applicant would have applied to update his clearance had he known of the requirement or had he been instructed to do so.

2. Therefore, the Board concludes that the applicant should be entitled to have his master sergeant date of rank and effective date of promotion corrected to 1 February 2001, with retroactive payment of lost pay.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. showing that the individual concerned was promoted to master sergeant with a date of rank of 1 February 2001, and

b. paying to him all back pay that may be due as a result of this correction.


BOARD VOTE:

____jhl___ ____reb_ ___mmd_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _____________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002066540
SUFFIX
RECON
DATE BOARDED	20020919
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 112.02
2.
3.
4.
5.
6.