PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 30 OCTOBER 2003
         DOCKET NUMBER: AR2003088051


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz, Jr.		Member
Mr. Larry C. Bergquist		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 as first lieutenant (pay grade 0-2) be adjusted from 23 December 2002 to 19 November 2000.

3. The applicant states that he was eligible for promotion to first lieutenant on 19 November 2000. He completed a security clearance application on 17 September 1999, 21 August 2001, and 14 May 2002. An interim clearance was finally granted on 23 December 2002. The delay in obtaining a security clearance was not his fault. Army Regulation 135-155, paragraph 4-8, does not apply in his case as he was qualified for a security clearance on 17 September 1999.

4. The applicant’s military records show that he enlisted in the Army Reserve on 8 January 1987. He completed the basic NCO course (BNCOC) and attained the rank of sergeant.

5. The applicant applied for a security clearance (Standard Form 86). That form shows that he signed and dated the form on 17 September 1999, and again on 23 August 2001. On that latter date the security specialist [801st Combat Support Hospital] requested that the applicant be granted an interim secret clearance. That request indicated that a copy of the EPSQ (Electronic Personnel Security Questionnaire) was submitted to the Defense Security Service on 23 July 2001, that local files checks were made with favorable results, and that the applicant had been in continuous federal service since 8 January 1987.

6. On 9 November 1999 he was appointed a second lieutenant in the Army Nurse Corps with 1 year, 3 months, and 19 days of service in an active status (constructive service credit). He accepted the appointment on 30 December 1999. He completed the AMEDD (Army Medical Department) Officer Basic Course (Reserve Component) on 21 July 2000.

7. On 19 November 2000 he passed the Army Physical Fitness Test (APFT). He was within the Army height and weight standards.

8. On 28 January 2003 the Army Reserve Personnel Command notified the applicant that he was promoted to first lieutenant effective and with a date of rank of 23 December 2002. A memorandum of record prepared by that command on 28 January 2003 indicates that the applicant was not promoted on his promotion eligibility date of 10 August 2000 because he did not have a security clearance. The effective date of his promotion was thus 23 December 2002 in accordance with the provisions of Army Regulation 135-155, paragraph 4-8.

9. In an E-mail to the Deputy Chief of Staff, G1, 88th Regional Support Command, the adjutant of the 801st Combat Support Hospital, the applicant's unit, supported the applicant's adjustment of his date of rank to first lieutenant, stating that he should have been eligible for promotion to first lieutenant on 20 July 2000; however, he did not pass the APFT until 19 November 2000, and that date should be his date of rank. He stated that the applicant's request for a security clearance had been redone multiple times through no fault of the applicant, and that there was a problem in obtaining clearances for Army Reserve officers. He stated that the security clearance manager requested an interim clearance for the applicant on two occasions, but one was not granted until recently. He stated that many officers in the unit had received their promotion orders after final clearance was granted.

10. Army Regulation 135-100 prescribes policy and procedures for the appointment of commissioned officers in the Army Reserve, and states in pertinent part that applicants for appointment will have as a minimum, a Secret security clearance prior to being tendered an appointment. As an exception, health professionals, chaplains, and attorneys may be commissioned in the Reserve Components prior to completion of a National Agency Check (NAC)
provided that a NAC is initiated at the time an application for a commission is submitted; and the applying health professional, etc., agrees in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found to be ineligible to hold a commission.

11. Army Regulation 135-155, then in effect, provides policy and procedures for the promotion of commissioned officers of the Army Reserve, and states in pertinent part, that an officer who has been recommended for promotion to the next higher grade must have undergone a favorable security screening. Promotion authorities will screen the military personnel records jacket to ensure that derogatory or unfavorable suitability information is not contained therein. If the results of this screening are favorable, final promotion action may proceed. If the screening reveals derogatory or unfavorable security information, the promotion authority will cause a National Agency Check (NAC) to be conducted. Final action of the promotion will be withheld until the results of the NAC are received.

12. The current regulation requires that an officer take and pass the APFT prior to being promoted; however, the regulation in effect at the time the applicant was eligible for promotion is silent in this regard.

13. Army Regulation 135-155, paragraph 4-7, states, "An officer disqualified for promotion to 1LT or CW2 who was retained in an active status may be promoted if later determined qualified. The promotion eligibility date will not be earlier than the date the officer is determined qualified for promotion. A memorandum of record will be prepared to explain the later promotion eligibility date."




CONCLUSIONS:

1. The applicant's contention is accepted. Apparent is the fact that a NAC had to be initiated at the time the applicant applied for a commission in 1999. The evidence shows that the applicant first applied for a clearance in September of 1999. Over three years later his clearance was granted and he was finally promoted to first lieutenant. Three years is an inordinate amount of time to process a clearance request, especially when such an action has an effect on the applicant's career. To let the matter rest as is, would be unfair and unjust – the applicant would be more than two years behind his contemporaries.

2. Further, it would appear to this Board that if the applicant was granted a clearance in 2000, then he would also have been eligible and would have been granted a clearance prior to his promotion eligibility date, had his clearance request been properly processed. He should have been promoted on 10 August 2000, his promotion eligibility date.

3. Consequently, the applicant's records should be corrected to show that he was promoted to first lieutenant on 10 August 2000. He should receive all due pay and allowances as a first lieutenant, pay grade 0-2, from that date.

4. 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 showing that the individual concerned was promoted to first lieutenant effective and with a date of rank of 10 August 2000, and that he receive all pay and allowances as a first lieutenant from that date.

BOARD VOTE:

__CLG__ __EWL __ __LCB __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ___Curtis L. Greenway____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088051
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031030
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.