MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002069200

         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:

Ms. Joann Langston		Chairperson
Mr. Roger W. Able		Member
Mr. Thomas B. Redfern		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 5 April 2001 to 1 November 2000.

APPLICANT STATES: He was eligible for promotion on 1 November 2000 but he was not promoted because he did not have a security clearance at the time. He states that he was stationed in the 3rd United States Infantry (The Old Guard) from July 1995 to August 2000. He claims that he had a clearance previously and always had a clearance until he filed for a Top Secret clearance. He was told in April 1997 that his Top Secret was granted, but he still needed to turn in proof of a bill. He claims that he brought the bill to the S-2 noncommissioned officer (NCO) and he said it was too late. He states that, when it was time for him to PCS [permanent change of station] to Fort Jackson, South Carolina, he waited for his promotion and found out that his security clearance had been revoked because the S-2 NCO did not finish his packet. He then contacted his security NCO and received the clearance. In support of his application, he submits a copy of a DA Form 873 (Certificate of Clearance and/or Security Determination).

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

The applicant enlisted in the Regular Army on 5 August 1981 for a period of 2 years. He has continued to serve on active duty through a series of reenlistments. He was promoted to MSG with an effective date and DOR of 5 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. Promotions from that list were made through his sequence number on 1 November 2000. However, he was not fully qualified to be promoted to MSG because he failed to meet the security clearance requirements at that time.

There is no evidence available to the Board which shows the date the applicant's security clearance was revoked.

By a memorandum, dated 5 April 2001, the Central Personnel Security Clearance Facility (CCF) notified the applicant that a favorable determination had been made in reference to rejustification of his security clearance. This memorandum stated that, based on the documentation the applicant provided verifying that his delinquent accounts were paid in full, as well as the favorable recommendation from his commander, the CCF had granted him a Top Secret security clearance.

The applicant provided a copy of his Certificate of Clearance and/or Security Determination (DA Form 873) prepared by the CCF, which indicates that his Top Secret security clearance was granted on 5 April 2001. As a result, orders were published by the U.S. Total Army Personnel Command (PERSCOM) which promoted him to MSG with an effective date and DOR of 5 April 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. The opinion also states that promotions were made through the applicant’s sequence number on 1 November 2000; however, he was not promoted based on not meeting the security clearance requirement. The opinion references 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 states that the applicant was promoted to MSG with an effective date and DOR of 5 April 2001, the day his secret clearance was granted. The opinion states that the applicant was not fully qualified for promotion to MSG until he met the security requirement; therefore, not entitled to a retroactive promotion. The Chief of the Promotions Branch concluded that the applicant’s request to adjust his DOR to MSG would afford him an unfair advantage not given to other soldiers and recommended that the applicant's request 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 always had a security clearance. He states that he was assigned to the Old Guard at Fort Myer, Virginia and the duty requires a Top Secret clearance. He contends that his S-2 submitted the paperwork in June 1996 and it came back in April 1997. He claims that while he was in training at the Joint Readiness Training Center at Fort Polk, Louisiana, his S-2 NCOIC [Noncommissioned Officer in Charge] was given information on a bill he had. In turn, the S-2 NCOIC forwarded the information to the security department in Fort Meade, Maryland. He contends that his S-2 NCOIC replied that, "it was too late to send the paperwork and "not to worry about it, and you already have a clearance any way." He further states that he continued to train under the impression that he had a Top Secret security clearance until he PCS, made the MSG list, and found out that his clearance was revoked because the packet was incomplete. In conclusion, he states that it took six months to get his security clearance back and that there was no apparent reason for the revocation except the incomplete packet due to his Battalion S-2.

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 5 April 2001 to 1 November 2000.

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 November 2000. However, in accordance with the governing regulation, the applicant was not fully qualified for promotion to MSG until he met the security clearance requirements; therefore, he was not promoted at that time.

3. Records show the applicant’s security clearance was completed on 5 April 2001 and he was promoted to MSG on that date.

4. Based on the foregoing, there is no basis for adjusting the applicant’s DOR to MSG from 5 April 2001 to 1 November 2000.

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 this 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

JL______ RWA_____ TBR_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069200
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020709
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.	131.0500
2.
3.
4.
5.
6.