RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040006884


      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. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 that he be promoted to master sergeant (MSG) (E-
8) effective September 2002 with retroactive pay and allowances and be
retired in the pay grade E-8.

2.  The applicant states that he was improperly passed over for the
promotion and, despite favorable Inspector General's findings; the error
has not been corrected.

3.  The applicant provides 38 annotated documents related to his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's Rhode Island Army National Guard (RIARNG), Army Reserve
(USAR), and active duty records are not available for the Board to review.
However, the available documentation is sufficient to allow the Board to
render a fair and impartial decision on this specific issue.

2.  The applicant was a sergeant first class (SFC) serving in the RIARNG at
the time he was placed on the 1999/2000 MSG (E-8) promotion list.  The
applicant was serving with the 118th Military Police Company, 43rd Military
Police Brigade, RIARNG at the time of the alleged error.

3.  The applicant successfully passed the annual physical fitness test
(APFT) administered on 22 August 1999.  However, this APFT was not properly
entered into the Standard Installation/Division Personnel Data System
(SIDPERS).

4.  This error and two other omissions in his records were noted by the
applicant. He notified the appropriate personnel office requesting that
they be corrected.  The other errors appear to have been corrected on or
about 16 December 1999.

5.  A promotion list printout, dated 27 January 2000, indicates that Steven
C____ and Michael R____ are listed ahead of the applicant.  There is no
notation on this form of their acceptance or declining of promotion.
Steven O____ is listed two positions below the applicant with a notation of
"Declined" beside his name.

6.  Headquarters 43rd Military Police Brigade, RIARNG Orders 34-1, dated
30 September 2000, assigned SFC Steven O____ to the vacant MSG position
within 119th Military Police Company and promoted him to MSG effective
14 September 2000.

7.  In a 20 March 2001 letter, the 118th Military Police Company (MPC)
command sergeant major (CSM) states that in August 2000, he notified the
applicant that there was a position open for an E-8 in another unit, the
119th MPC.  The applicant was the next one on the promotion list, and that
the 119th MPC was being activated within a week.  The applicant requested
that the CSM verify that he was in fact the next in line, as the applicant
believed that there were two other Soldiers ahead of him on the promotion
list.  The CSM indicated he told the applicant he would get back to him.
The CSM found that the two Soldiers ahead of the applicant had declined
promotion, in writing.  The CSM reports that the Brigade CSM notified him
that SFC Steven O____ had received orders for the promotion because the
applicant had reportedly declined the position.  The CSM states that there
is no indication that the applicant declined the position.

8.  On 20 September 2001 the applicant requested that the RIARNG Office of
the Inspector General (IG) initiate an investigation into why he was passed
over for promotion.

9.  A RIARNG Command Readiness Center letter, dated 8 February 2002,
responded to the applicant's IG request.  The letter states that there is
no evidence that he was flagged for APFT failure during the selection
period or that he was formally notified he had been passed over.  It also
indicates that, although promotion orders for SFC O___ were issued and not
rescinded, following his declining the promotion, they were never entered
into the SIDPERS database.

10.  The applicant requested assistance in rectifying the promotion problem
from his Congressional Representative on 1 March 2002.

11.  An undated letter from the Department of the Army (DA), Office of the
Inspector General to the applicant states it was found that his 1999 APFT
had not been entered into the SIDPERS database.  It states that the
administrative procedure is for a Soldier to be suspended from all
favorable personnel actions (Flagged) if no APFT was submitted to SIDPERS
within an 18-month period.  It further indicated that an additional
investigation had been initiated into potential systemic problems in the
administration of the APFT and promotion system within the 43rd Military
Police Brigade.   The Deputy Inspector General approved the findings of the
IG investigation on 15 October 2001.

12.  On 7 February 2003 the applicant was mobilized in pay grade E-7 in
support of Operation Iraqi Freedom for a period not to exceed 365 days.

13.  In June and again in November 2003, the applicant sought Congressional
assistance through a United States Senator to determine the final outcome
of his 2002 IG complaint.

14.  On 8 January 2004 his activation orders were amended to extend his
period of active duty not to exceed 481 days.

15.  In an 11 May 2004 letter, the DAIG responded to the 2002 Congressional
inquiry.  The letter states that their investigation found that the
applicant had been improperly passed over for promotion.  It states that an
investigation noted several discrepancies surrounding the promotion process
as it pertained to the specific promotion opportunity within the 43rd
Military Police Brigade.  It noted that the applicant's command had failed
to schedule an APFT in 2000, but noted that the applicant's 1999 APFT would
still have been valid in August 2000 when the two Soldiers above him
declined the promotion.  It concludes that the applicant was qualified for
the promotion and should have been officially offered the position and
promotion.

16.  The available documentation indicates the applicant was released from
active duty in 12 May 2004.

17.   RIARNG Joint Force Headquarters Orders 1177-003, dated 25 June 2004,
honorably discharged the applicant from the RIARNG and transferred him, as
a SFC, to the USAR Control Group (Reinforcement) effective 12 August 2004.

18.  A Reserve Retirement Points Summary Sheet, printed 23 June 2004,
indicates that the applicant had 21 years of creditable service toward a
Reserve Retirement at age 60 and had received a Notice of Eligibility for
Retired Pay (commonly called a 20 year letter).

19.  A National Guard Bureau (NGB) memorandum, dated 22 September 1999, was
issued changing the provisions of National Guard Regulation (NGR) 600-200,
paragraphs 11-34a(2), 11-35c, 11-36b and c as to the processing of Soldiers
for consideration for promotion.  It states, at paragraph 11-36b, that
Soldiers must accept or decline consideration in their own handwriting on
the NGB Form 4100-1-R-E.  It further states that those who accept
consideration may expect to be promoted and assigned to the higher grade
during the life of the list.

DISCUSSION AND CONCLUSIONS:

1.  The Army Board for Correction of Military Records (ABCMR) does not have
the authority to correct the applicant's RIARNG records as they relate to
his service solely in a position within the state Guard serving under the
provisions of Title 32, United States Code.

2.  However, the ABCMR does have the authority to correct any and all
records for Soldiers as they relate to service in the Army Reserve (USAR),
or during periods of service in a Federal capacity, under the provisions of
Title 10, United States Code.

3.  The available records and investigations by the IG indicate that the
applicant's command had a number of problems related to the administration
of and recording of the AFPTs for 1999 and the promotion of Soldiers during
2000.

4.  The documentation indicates that the applicant took timely steps to
correct his records; however, through no fault of his own, all of the
corrections were not made.

5.  The applicant was qualified for promotion to MSG (E-8).  The fact that
the applicant has consistently attempted to rectify the errors, related to
his not being afforded the position/promotion, shows that had he been
properly offered the position he would have accepted the position and
served in an MSG position.

6.  The orders assigning SFC O____ to the available MSG position carried an
effective promotion date of 14 September 2000.  Therefore, it is
appropriate to consider 14 September 2000 as the appropriate effective date
for promotion consideration in this case.

7.  With this promotion the applicant is entitled to retroactive pay and
allowances in pay grade E-8 for all periods of Federal service to include
but not limited to his active duty service during Operation Iraqi Freedom,
7 February 2003 through 12 May 2004.

8.  It is also appropriate to recommend to The Adjutant General, RIARNG
that the applicant be promoted to MSG (E-8), effective 14 September 2000,
accepted the available MSG position and to be shown to have served as such
within the RIARNG with full entitlement to all rights, privileges, pay and
allowances of that rank and pay grade.



BOARD VOTE:

_JTM ____  _WDP__  __LJO__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for the authorized relief.  As a result, insofar
as the records of the Rhode Island Army National Guard are concerned, the
Board recommends that the Adjutant General of the Rhode Island Army
National Guard correct the National Guard and Reserve of the Army records
to show that the applicant was promoted to master sergeant (E-8) with an
effective date of promotion and date of rank of 14 September 2000, and
entitlement to retroactive pay and allowances in that grade for all time
served subsequent to that date and that he was transferred to the USAR
Control Group (Reinforcement) in the rank of MSG
(E-8), effective 12 August 2004.

2.  The Board further recommends that all of the Department of the Army
records of the individual concerned be corrected to show the applicant was
promoted to master sergeant (E-8), with an effective date of promotion and
rank of 14 September 2000 with entitlement to retroactive pay and
allowances in that grade for all periods of Federal serve subsequent to
that date








                                  __     John T. Meixell______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006884                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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