RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 NOVEMBER 2004
      DOCKET NUMBER:   AR2004103619


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his promotion to first
lieutenant be corrected to show that he was promoted on 8 October 1999 vice
8 October 2000.

2.  The applicant states, in effect, that his date of rank to first
lieutenant is incorrect and the error may be related to the delay in
finalization of his security clearance.  He states that in 1999 he was
informed that the Army would not change his date or rank due to a delayed
security clearance but was recently told by an official at the United
States Army Human Resources Command-St. Louis, that his date of rank was
incorrect and suggested that he apply to this Board.

3.  The applicant provides a copy of his initial appointment order, a copy
of his October 2000 promotion to first lieutenant, a copy of a calculation
of what his promotion eligibility date should have been based on his
appointment date and constructive credit information, and a copy of his
academic evaluation report showing completion of the AMEDD (Army Medical
Department) officer basic course.

CONSIDERATION OF EVIDENCE:

1.  Documents available to the Board indicate that the applicant was
appointed as a United States Army Reserve AMEDD second lieutenant on 9
September 1998 with 11 months of constructive credit.  The applicant’s
appointment order does contain a type statement that “request for waiver of
conviction is approved.” There is no indication in available records
regarding the waiver or the conviction which required the waiver.

2.  In the processing of this case, an advisory opinion was provided by the
Military Personnel Actions Branch of the United States Army Human Resources
Command-St. Louis.  The opinion noted that had the applicant met all of the
military promotion qualification, his effective date for promotion to first
lieutenant would have been 8 October 1999.  However, in October 1999 the
applicant did not have a valid security clearance and as such, his
promotion was delayed until 8 October 2000, when his security clearance was
finalized.  They stated that his date of promotion, based on the “facts and
circumstances” was correct.

3.  The applicant was provided an opportunity to comment on the advisory
opinion but did not respond.


4.  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.
 
5.  Army Regulation 135-155 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 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.
 
6.  Army Regulation 135-155, paragraph 4-7, states, "An officer
disqualified for promotion to 1LT or W-1 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."

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, the documents available to the Board, and provided by
the applicant, do not show any error or injustice in the delay of his
promotion to first lieutenant because of his security clearance.  He was
disqualified from promotion to first lieutenant when he was initially
eligible because he did not have a valid security clearance.  He was
subsequently promoted, in accordance with applicable regulations, when the
security clearance was granted.

2.  The applicant has failed to provide any evidence that the delay in his
security clearance was unavoidable or through no fault of his own.  While
the Board has, in previous cases granted relief as a matter of equity when
such evidence was available, the absence of such evidence in this cases
precluded relief based on equity.

3.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  __EP ___  ___RR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ______Melvin Meyer________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103619                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041116                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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