RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070010971 


	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.  










      The following members, a quorum, were present:













	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 first lieutenant (1LT) date of rank (DOR) be changed from 24 February 2003 to 1 April 2000.  

2.  The applicant states, in effect, that he was commissioned in the United States Army Reserve (USAR) on 10 November 1998, and granted 7 months and 
14 days of constructive service credit, which should have adjusted his second lieutenant (2LT) DOR to 1 April 1998.  He claims that although he was denied attendance at the Officer Basic Course (OBC) for two years in a row, his unit informed him he would be administratively promoted to 1LT in two years and that he should begin his Master's Degree program.  He claims that while attending the OBC, he learned his original security clearance packet submitted upon entering the USAR had been lost, and as a result, he was not promoted to 1LT for five years.  He indicates that he has now been twice deployed and learned that he is outranked by anesthesia providers with five years less experience than he.  He also indicates he is outranked by every student Soldier that he instructed at the master’s level anesthesia program.  He indicates that he has worked in a level one trauma center since 2001; made captain (CPT) at his earliest board; has obtained a Master’s Degree; has excellent evaluations; and has been a Soldier for fifteen years.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Initial Appointment Memorandum, dated 10 November 1998; Memorandum for Record, dated 24 April 2003; 1LT Promotion Memorandum, dated 24 April 2003; CPT Promotion Orders, dated 29 August 2006; Officer Evaluation Reports (DA Forms 67-9), ending on 17 February 2004 and 14 October 1999; Service School Academic Evaluation Report (DA Form 1059), dated 13 December 2002; Department of the Army (DA) National Army Medical Department (AMEDD) Augmentation Detachment Memorandum, dated 
6 September 2002; Work History; Master of Science in Nursing Certificate; and DA, 75th Combat Support Hospital Memorandum, dated 7 June 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows he initially enlisted and entered the Alabama Army National Guard (ALARNG) in an enlisted status on 22 January 1992.  He continuously served until he was honorably discharged, in the rank of specialist (SPC), on 9 November 1998.  The separation document (NGB Form 22) he was issued at the time shows he completed 6 years, 9 months, and 
18 days of Reserve Component (RC) military service.

2.  Item 15 (Decorations, Medals, Badges, Commendations) of the applicant's 
9 November 1998, NGB Form 22 shows he earned the following awards during this period of military service:  Army Service Ribbon; Active Duty Basic Training Ribbon of Alabama; Aircraft Crewman Badge; Army Reserve Component Achievement Medal with Oak Leaf Cluster; Faithful Service Medal of Alabama; Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

3.  On 10 November 1998, the applicant was appointed a USAR commissioned officer in the rank of 2LT.  The appointment memorandum issued by the Chief, Appointments, United States Total Army Personnel Command, St. Louis, Missouri, confirms he was granted 7 months and 13 days of constructive service credit.

4.  On 7 June 1999, the 75th Combat Support Hospital, Supervisory Staff Administrator, issued a memorandum indicating the applicant’s promotion eligibility status.  This document did not provide if a security screening had been conducted of the applicant’s military record and likewise provided no evidence of any derogatory information contained therein.

5.  The applicant’s Official Military Personnel File (OMPF) contains an Officer Evaluation Report (OER) (DA Form 67-9) that evaluated him for the period 11 November 1998 through 14 October 1999, as a 2LT clinical nurse assigned to the 75th Combat Support Hospital.  It also shows that he was recommended for immediate promotion at that time.

6.  On 4 February 2003, the applicant was promoted to the rank of 1LT.  

7.  On 24 April 2003, the Chief, Military Personnel Actions Branch, Army Reserve Personnel Center (ARPC), now known as the United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis), issued a memorandum that indicated the applicant's promotion eligibility date (PED) to 1LT was 27 March 2000; however, he was not promoted until 4 February 2003, which is the date he first met all promotion requirements.  

8.  The Chief, Office of Promotions, RC, HRC-St. Louis, issued Orders Number B-08-606379, dated 29 August 2006, which announced the applicant's promotion to captain (CPT), effective on and with a DOR of 7 August 2006.

9.  As of the date of his application to this Board, the applicant was serving as Chief, Anesthesia Services, in the rank of CPT, at the Salerno Hospital in Afghanistan.

10.  The evidence of record is void of any documents related to the military record security screening process pertaining to the applicant's administrative processing for promotion to 1LT, or related to his security clearance processing.  

11.  In connection with the processing of this case, an advisory opinion was received from the Chief, Special Actions Branch, Office of Promotions, RC, HRC-St. Louis.  This official indicated that the governing regulation requires that all promotion qualifications, to include possessing a valid security clearance, be met prior to a Soldier being promoted to 1LT.  He further indicated that the applicant did not possess a valid security clearance upon reaching his PED to 1LT on 
10 November 1998, and that he was promoted on 4 February 2003, the date he became fully qualified for promotion.

12.  On 8 November 2007, the applicant responded to the HRC-St. Louis advisory opinion, via electronic mail (E-Mail).  He indicated that he had a letter from the United States Army Recruiting Command (USAREC), which shows he was not in a promotion pass-over status, which he provided with his e-mail.  He also indicated that he had his security worksheet from 1998, which was never properly processed by USAREC.

13.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  Chapter 2 contains the eligibility for consideration and general qualifications for promotion selection.

14.  Paragraph 4-11 of the same regulation states, in pertinent part, that an officer who has been recommended for promotion must have undergone a favorable security screening before being promoted in the RC.   Paragraph 4-13 outlines the security screening requirement.  It states, in pertinent part, that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  The security screening process is described as a review of an officer’s Military Personnel Records Jacket (MPRJ) or Personnel Electronic Management System (PERMS) file, to ensure there is no derogatory or unfavorable suitability information contained therein.  It further states that if the results of this screening are favorable, final promotion action may proceed.  A promotion will be withheld only when the security screen reveals unfavorable or derogatory information, and the promotion authority is required to process a National Agency Check (NAC).  


15.  Title 10 of the United States Code, section 12203 establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, if otherwise qualified the promotion effective date is the date the list is signed by the President.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his 2LT DOR should be adjusted based on the 7 months and 13 days constructive service credit granted him upon his Reserve commissioned officer appointment; and that his 1LT DOR should be adjusted from 4 February 2003 to 1 April 2000, because he would have been fully qualified for promotion on his PED had the security clearance packet he initially submitted not been lost has been carefully considered and found to have merit.

2.  The evidence of record confirms that the applicant was not credited the 7 months and 13 days constructive service credit granted upon his appointment in the USAR on 10 November 1998, with a 2LT DOR of 10 November 1998, as evidenced in the HRC-St. Louis appointment memorandum.  Therefore the applicant’s 2LT DOR should be adjusted at this time from 10 November 1998 to 27 March 1998 based on his 7 months and 13 days constructive service credit and he should be given any back pay and allowances due as a result of this change.

3.  Notwithstanding the HRC-St. Louis advisory opinion, which indicates a member must possess a valid security clearance to be promoted, by regulation, before being promoted an RC officer must either have undergone a favorable security screening or possess a valid security clearance.  The evidence of record in this case appears to show the applicant was not promoted on his PED because he did not possess a valid security clearance; however, it provides no information regarding why a security screening of his record was not completed at the time, or why his security clearance packet was not properly processed.  

4.  The evidence of record does contain a memorandum issued by the 75th Combat Support Hospital, the applicant’s unit at the time he became eligible for promotion to 1LT, which confirmed his eligibility for promotion.  Although it did not specifically address his security qualifications, it is void of any indication of derogatory information that would result in an unfavorable security screening. 


5.  Further, the applicant received an OER as a 2LT that contained a recommendation that he be promoted to 1LT by the rater and a recommendation that he be promoted immediately by the senior rater, which is an indication that he was qualified for promotion; had he not met the security requirements, this recommendation would not likely have been made. 

6.  The applicant's Official Military Personnel File/PERMS is void of any derogatory information, and there is no indication in his record that he ever had derogatory information in his file that would have resulted in an unfavorable security screening.  Therefore, based on the loss of his initial security clearance packet and given he ultimately received a valid security clearance, it would be appropriate and serve the interest of equity and justice to correct the applicant's record to show he was fully eligible for and was promoted to 1LT on his PED of 27 March 2000, based on his 2LT DOR of 27 March 1998, which should have been established on 10 November 1998, the date of his appointment, based on the 7 months and 13 days of constructive service he was awarded at the time.  

7.  The evidence of record also shows that he was promoted to CPT on 
29 August 2006, 3 years, 6 months, and 3 days after he was promoted to 1LT on 4 February 2003.  Therefore, based on his adjusted 1LT DOR of 27 March 2000, it would also be appropriate to adjust his DOR to CPT to 30 September 2003  Given the delays in the applicant's promotions were through no fault of his own, it would also be appropriate to provide him all back pay and allowances due as a result of these changes.  

BOARD VOTE:

__x __  __x  __  __x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his date of rank to 2LT was established as 27 March 1998, at the time of his appointment, 10 November 1998, based on the 7 months and 13 days of constructive service he was awarded at the time;

	b.  showing he met all qualifications for and was promoted to 1LT on his promotion eligibility date of 27 March 2000;

      c.  showing he was promoted to CPT on 30 September 2003; and 
      
      d.  providing him all back pay and allowances based on the changes outlined above.  




      _____x                  ___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070010971


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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