RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060015123 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 date of rank (DOR) for Master Sergeant (MSG/E-8) be adjusted from 27 December 2005 to 1 February 2002, based on his sequence number of 77.

2.  The applicant states, in effect, that his effective DOR is 27 December 2005.  
The final adjudication of his clearance was delayed at the Central Clearance Facility (CCF).  Army transformation also deleted the higher headquarters of the Divarty Artillery at Fort Drum, New York.  This stopped the communication flow, from CCF through the division, to the battalion level to him.  After many months, the system has now changed which affected not just him but many more Soldiers serving this great country.

3.  The applicant provides a copy of his promotion orders in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty.

2.  He was promoted to MSG/E-8 with an effective date and DOR of 27 December 2005.

3.  In the processing of this case, an advisory opinion was requested of the Chief, Promotions Branch, U.S. Army Human Resources Command (AHRC)-Alexandria.  

4.  On 8 December 2006, the Chief, Promotion Branch, AHRC-Alexandria, provided the Board an advisory opinion.  AHRC stated that the applicant was requesting an adjustment to his MSG DOR from 27 December 2005 to 1 February 2002.  AHRC stated that a review of the applicant's records and the official documentation maintained by their headquarters revealed that he was selected for promotion by the CY (Calendar Year) 2001 MSG Selection Board.  
Promotions were made through his sequence number on 1 February 2002; however, the applicant did not meet the security clearance requirement for promotion to MSG.  IAW (in accordance with) Army Regulation 600-8-19, paragraph 1-16(a), promotion to MSG and SGM (sergeant major) required a National Agency Check, Local Agency Check and Credit Check (NACLC) or a security clearance of Secret or higher.  



5.  AHRC stated that on 18 January 2006, the applicant was promoted to MSG with an effective date and DOR of 27 December 2005, the day his security clearance was granted.  He was not fully qualified for promotion to MSG until meeting the security requirement, therefore, not entitled to a retroactive promotion.  AHRC recommended that his request be denied.  To adjust the applicant's promotion date to MSG, would afford him an unfair advantage not given to other Soldiers.  AHRC concluded that consistent application of promotion policy was the only way to ensure a fair and equitable system for all Soldiers.

6.  The applicant was provided a copy of this opinion on 19 December 2006 for possible comment prior to consideration of his case.

7.  In his rebuttal, the applicant stated that on 15 December 2001, he was notified by the Department of the Army, US Army Aviation Center and Fort Rucker, Alabama, G-1 SGM, that he did not possess the appropriate level of security clearance to be promoted to MSG as stated in the advisory opinion furnished to him.  He promptly contacted his unit security manager and started the necessary application to acquire a security clearance on or about 2 January 2002.  He was told then that he could expect the investigative process to take from 12 to 36 months to complete due to the backlog of investigations conducted by the Department of Security Services (DSS).  

8.  The applicant continues to elaborate on the sequence of events that occurred during the process of obtaining an updated security clearance.  He received his approved clearance on 27 December 2005, which became the effective date of his rank to MSG.  He states that he could not see how he would have an unfair advantage over other Soldiers.  If the Board decides favorably for him, it would not affect his eligibility to be promoted to the next higher grade because he would still fall into the same zone of consideration for promotion.  

9.  The applicant believes, in effect, that he exhausted every option to meet the requirements to receive the appropriate level of security clearance prior to the date his sequence number being selected, in February 2002, and he should not be punished for something he had no control over.  It was a well known fact that the DSS had a considerable backlog and it took nearly 4 years for him to be granted his clearance.  His circumstances were only worsened by the fact that he had a permanent change of stations twice during this process and spent 1 year in a combat zone.  With the facts presented, he asks that the Board favorably consider his case and adjust his DOR to 1 February 2002. 


10.  Army Regulation 600-8-19 governs the enlisted promotions and reductions function of the military personnel system.  Paragraph 1-16 pertains to security clearance requirements.  It states that the following security clearance requirements are a prerequisite for promotion:  (a) Promotion to MSG and SGM requires an interim secret clearance or higher; and (b) Promotion to SPC (specialist) through SFC (sergeant first class) requires the clearance required by the promotion MOS or an interim clearance at the same level. 

11.  Paragraph 1-317, of Army Regulation 380-67 (Personnel Security Program), pertains to periodic reinvestigation.  An investigation is conducted every 5 years for the purpose of updating a previously completed background or special background investigation on persons occupying critical sensitive positions, possessing a top secret clearance, or occupying a special access program position or whose MOS (military occupational specialty) requires access to top secret and/or SCI (Sensitive Compartmented Information).  The scope will consist of a personal interview, NAC (National Agency Check), LACs (Local Agency Check), credit bureau checks, employment records, employment references and developed character references and will normally not exceed the most recent 5-year period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was notified on 15 December 2001 that he did not possess the appropriated level of security clearance to be promoted to MSG.  He contacted the appropriate officials and began to acquire an updated security clearance on or about 2 January 2002.  He was informed that he could expect the investigation to take 12 to 36 months to complete due to a backlog of investigations to be conducted by the DSS.

2.  The applicant was selected for promotion by the CY 2001 MSG Selection Board and was given a sequence number of "77." Promotions were made through his sequence number on 1 February 2002.

3.  The applicant received his approved clearance on 27 December 2005 and was promoted to MSG with an effective date and DOR of 27 December 2005.  
He did not meet the security requirements for promotion to MSG in accordance with regulatory authority on 1 February 2002. 

4.  In view of the circumstances, the applicant is not entitled to an adjustment of his DOR from 27 December 2005 to 1 February 2002.  He was not fully qualified for promotion to MSG until meeting the security requirement.  Therefore, there is no basis for granting the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___T____  ___JGH__  __DLL__  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.




_____Marla J. N. Troup_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015123
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070221
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .active duty  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
102
2.

3.

4.

5.

6.