RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060011342 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Ms. LaVerne Douglas

Member

Ms. Ernestine Fields

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 a promotion to staff sergeant/pay grade E-6.

2.  The applicant states, in effect, that he was cross-leveled from Company B, 926th Engineer Battalion to the 655th Transportation Company in Millington, Tennessee (TN) on 28 November 2003 and that this is the first time he tried to get promoted but was told they did not have enough records to do anything.  His unit left Millington, TN and went to Fort Campbell, Kentucky on 10 December 2003 and he spoke with a first sergeant about his promotion and was told they needed his Army Physical Fitness Test (APFT) card.  He contends that he provided copies of his records, awards, and college transcript to the first sergeant for his promotion packet.  He states that after he got to Iraq, his mother died and he went home on emergency leave and when he went back he took more copies of his records for his promotion packet.  He states that every time he spoke to someone about his promotion packet they claimed they did not have everything even though he had provided copies of his records on numerous times.  

3.  The applicant states that in May 2004 he had to give the first sergeant another copy of his APFT card for his promotion packet and it was supposed to have been for the June 2004 promotion board.  He claims that a promotion board was held almost each month in Kuwait.  He states that he continually asked the first sergeant about his promotion and she would always say that she had not heard anything.  He states that his promotion packet had never been put in at all in Kuwait.  He also states that he talked to a command sergeant major and she told him that he could not be put in for promotion because he was on a profile for an injury he received in Iraq.  He points out that even though he was injured and on a profile, he still ran convoys continually.  He further states that the last time he tried to put in his promotion packet, while in Iraq, a Chief Warrant Officer Three was told that they would not put in his packet because he had not passed an APFT while in Iraq because he was on profile, that he could not get promoted, and that he had been avoiding his first sergeant.         

4.  The applicant provides a letter, dated 10 August 2005, from the Commanding General, Headquarters, U.S. Army Reserve Command (USARC); a letter, dated 
27 March 2004, from the Deputy Chief of Staff, G-1, USARC; three emails; a memorandum for record, dated 4 June 2006; a DA Form 638 (Recommendation for Award), dated 14 February 2005; a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) covering the period December 2003 to November 2004; a reviewer’s non-concurrence, dated 14 January 2005; a DD Form 214 (Certificate of Release or Discharge from Active Duty); a Certificate of Achievement; orders for the Army Achievement Medal; letters of recommendation, dated 21 July 2006 and 13 July 2006; an undated letter to a Member of Congress; portions of a DA Form 3355 (Promotion Points Worksheet); an APFT scorecard; and excerpts from Army Regulation 140-158. 

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Navy, the USAR, and the Alabama Army National Guard, the applicant enlisted in the USAR in the rank of sergeant on 
5 March 2002 for a period of 4 years.  He was ordered to active duty on 
7 December 2003 in support of Operation Iraqi Freedom.  He was released from active duty on 14 April 2005.  

2.  The applicant provided portions of a DA Form 3355, dated 25 August 2004, which show he was recommended for promotion to “SGT” (sic) in military occupational specialty (MOS) 88M (motor transport operator) .  The total promotion points shown on this form are illegible and appear to be 320.  In item 4, the entries, “Baptist Bible College” and “Drury College” were added and then lined through, with no promotion points annotated.  The applicant did not sign the form in 6a.  The promotion authority did not sign the form in part 5.   

3.  The applicant provided a letter, dated 10 August 2005, from the Office of the Commanding General, Headquarters, USARC which states, in pertinent part, that an Inspector General inquiry determined that he was not selected for promotion to staff sergeant because he received a score of 325.  It also states, “In accordance with Army Regulation 140-158, paragraph 3-14(a) for promotion to staff sergeant, you must attain a score equal to or greater than 350.”    

4.  The applicant provided an undated letter from the Office of the Staff Judge Advocate, Headquarters, USARC to a Member of Congress.  This letter states, in pertinent part, that a Commanders Inquiry was conducted while the applicant was serving in Iraq and was completed on 12 February 2005.  It further states that the applicant’s promotion packet was not forwarded to the December 2004 E-5 to E-6 promotion board.  It was determined that the applicant and his chain of command were equally responsible for the failure to submit his promotion packet to the December 2004 board.  The applicant’s chain of command did not forward his promotion packet because they believed that he did not meet the promotion criteria stated in Army Regulation 140-158.  His chain of command believed that he failed to pass the APFT within the required time frame.  It was later discovered that the applicant did pass the APFT within the appropriate time frame.  The letter further states the applicant ultimately has the responsibility to ensure that his promotion packet is complete and accurate.  His chain of command did not submit his promotion packet because it did not contain the correct information regarding his most recent APFT.  The applicant did not take the proper steps to review his promotion packet to ensure that it contained correct and accurate information. 

5.  The applicant provided a letter of recommendation, dated 13 July 2006, from his commanding officer (a first lieutenant).  He states, in pertinent part, that he reviewed multiple documents provided by the applicant which span approximately three years of effort to be promoted to staff sergeant.  He states that the applicant’s original promotion point worksheet (DA 3355-1-R) was prepared on 20 August 2004 and the form clearly shows that no college or trade school credit was awarded even though the applicant had submitted it.  The included transcript, dated 9 March 1989, shows the total awarded “Clock Hours” as 1405 hours.  He points out that per Army Regulation 140-158, dated 
17 December 1997, the number of promotion points to be awarded is calculated by dividing the total number of “Clock Hours” by 16, and then rounding down to the nearest whole number.  This would have resulted in a total of 87 awardable promotion points.  When the 87 promotion points are added to the DA 3355-1-R, dated 20 August 2004, the total number of promotion points equals 382.  He further states that if the college/trade school credits had been added to the applicant’s original promotion point worksheet he would have exceeded the minimum of 350 promotion points required for promotion to staff sergeant.  All subsequent claims that the applicant was ineligible for promotion due to being on profile should be considered irrelevant since he would have been fully eligible for promotion.  He recommends that the applicant’s promotion packet be re-evaluated with the information that would have been relevant at the time of his first eligibility for promotion.  This should result in the conclusion that the applicant was eligible for promotion, that he was not promoted due to no fault of his own, and that he should be promoted to staff sergeant.     

6.  The applicant provided a letter of recommendation, dated 21 July 2006, from another commanding officer (a lieutenant colonel).  He states that he reviewed the documentation provided by the applicant and that the applicant’s promotion packet should be re-evaluated for promotion to staff sergeant due to the fact that the applicant’s non-select for promotion was no fault of his own.  He states that his non-select to staff sergeant while deployed to Iraq was due to college transcripts, while placed in his Military Personnel Records Jacket (MPRJ), did not make it to his promotion packet and upon his re-look at the promotion board, his APFT had expired.  

7.  The applicant provided a memorandum for record, dated 4 June 2006, from his maintenance officer.  He stated, in pertinent part, that in December 2003 a senior mechanic of the 655th Transportation Company saw the applicant’s transcript placed into his 201 file that the unit had.

8.  On 19 September 2006, the applicant was released from the USAR (maximum age) in the rank of sergeant and assigned to the Retired Reserve.       

9.  Paragraph 3-14a(4)(a) of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) states that the Report of Board Proceedings will include the names of Soldiers recommended for promotion to staff sergeant who attained scores equal or greater than 350.

10.  Paragraph 3-24a(3) of Army Regulation 140-158 states that to be promoted, or conditionally promoted, to sergeant or staff sergeant the Soldier must be in the proper sequence order when promoted off the list per paragraph 3-24c.

11.  Paragraph 3-24b of Army Regulation 140-158 states that the procedures necessary to accomplish a promotion will be as follows: (1) based on cumulative vacancy computation, the unit will report a current or projected vacancy requirement to the authority responsible for the permanent recommended list; and (2) the authority will identify the Soldier on the list who will be promoted into the vacancy and notify the promotion authority.  The promotion authority will then publish the promotion orders.  The effective date of the promotion will be the date of the assignment to the vacancy.  If necessary, reassignment orders will be issued by the appropriate Army Reserve Command/United States Army Reserve General Officer Command/RSC or outside continental United States command.

12.  Paragraph 3-24c(1) and (2) of Army Regulation 140-158 states that selection off of the permanent recommended list by the authority cited in paragraph 3-16a for promotion must be the highest number of points with the required MOS, residing within a reasonable distance of the required vacancy (50 or 90 minutes). If a Soldier declines the promotion, his or her name will be removed from the list according to the instructions in paragraph 3-25b(11).  If there is no Soldier on the list in this category, then the following sequence is authorized: highest number of points with the required MOS who resides outside the reasonable distance of the required vacancy, but voluntarily accepts the promotion and reassignment.  If the Soldier does not desire to accept the promotion with concurrent transfer, he or she must decline the promotion in writing within 30 days of notification.  The Soldier’s name will remain on the recommended list and he or she will not be penalized for declining a promotion requiring reassignment outside a reasonable commuting distance.     

13.  Paragraph 5-16d(1) of the Deputy Chief of Staff G-1 Personnel Policy Guidance, in effect in 2004, states USAR Soldiers will be considered for promotion and will remain under the Reserve Component promotion authorities and procedures outlined in Army Regulation 140-158.  Soldiers will be promoted in accordance with Army Regulation 140-158, paragraph 3-24 in sequential order.  Chapter 5 (Deployment/Employment Processing), paragraph 5-16d (USAR under Partial Mobilization), subparagraph 5-16d(4)(a) of this guidance states, in pertinent part, that as an exception to paragraph 3-24 of Army Regulation 140-158, Soldiers without a valid position will then be promoted as overstrength.   

DISCUSSION AND CONCLUSIONS:

1.  The Office of the Staff Judge Advocate, Headquarters, USARC acknowledged that the applicant’s command failed to submit his promotion packet to the December 2004 promotion board based upon erroneous information concerning his APFT.  

2.  The Office of the Staff Judge Advocate also determined that the applicant did not take the proper steps to review his promotion packet to ensure it contained correct and accurate information.  It is understood that the individual Soldier bears some responsibility for ensuring his or her promotion packet is accurate and complete.  However, it is also recognized that there are some circumstances (such as pre-deployment/deployment) that make it much more difficult for the individual Soldier to undertake this responsibility.

3.  The applicant contended he gave his college transcripts to his first sergeant for his promotion packet in December 2003, before he deployed.  The unit maintenance officer confirmed that the senior mechanic saw the applicant’s transcript placed in his 201 file in December 2003.  His first lieutenant commander confirmed that the applicant had submitted the transcripts (for a total of 87 promotion points).  That contention also seems to be borne out by the fact that two schools (Baptist Bible College and Drury College) were added to his promotion points worksheet, even though they were later deleted.  The applicant’s lieutenant colonel commander also stated the applicant’s college transcripts were in the applicant’s MPRJ.

4.  It appears it would be equitable to show the applicant was awarded an additional 87 promotion points for his civilian education.  This would give him a total of 412 (based upon the 325 promotion points mentioned in the Office of the Commanding General, USARC’s 10 August 2005 letter) promotion points, enough to have him recommended for promotion and placed on the Report of Board Proceedings.

5.  The above being said, there is still insufficient evidence to show the applicant actually would have been promoted.

6.  Although the Personnel Policy Guidance removed the requirement for a deployed Soldier to have a valid position to be promoted into, it still required that Soldiers be promoted in sequential order.  The applicant provides no evidence to show what sequential order he would have been in had he been recommended for promotion with 412 promotion points.  He provides no evidence to show that the promotion authority would have approved his promotion or for what effective date he would have approved his promotion had he been recommended for promotion with 412 promotion points.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

KW____  __LD____  __EF____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was recommended for promotion to E-6 in MOS 88M with 412 promotion points based upon the DA Form 3355, dated 25 August 2004.

2.  That the Commander, U. S. Army Reserve Command, coordinate with the appropriate unit to review the records and determine if the new promotion point total of 412 would have resulted in the applicant’s promotion prior to his transfer to the Retired Reserve on 19 September 2006.  If it is determined that he would have been promoted, he should be promoted and awarded all back pay and allowances as appropriate.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a direct promotion to E-6.  




__Kenneth Wright______
          CHAIRPERSON



INDEX

CASE ID
AR20060011342
SUFFIX

RECON

DATE BOARDED
20070410
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.