IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080008000 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his date of rank (DOR) for promotion to sergeant (SGT)/E-5 be corrected from 10 November 2003 to 17 March 2002.  

2.  The applicant states, in effect, that he enlisted under the Army Civilian Acquired Skills Program (ACASP) as a Spanish/American Linguist with the condition that he be promoted to SGT/E-5 after completing all required training and demonstrating the appropriate level of proficiency, skill, and conduct.  He also adds that he completed training and demonstrated the appropriate level of proficiency; however, his commander denied his promotion because his National Security Agency (NSA) level clearance had not been completed.  He further states that had he been assigned to a regular Army Military Intelligence site he would have been promoted; however, he was assigned to a unit that required an NSA clearance, which took longer than normal, and his unit waited until he received his NSA clearance and performed in his primary military occupational specialty (MOS) for 8 weeks, before promoting him to SGT/E-5.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United states), dated 21 January 2004, and allied documents.

	b.  Memorandum, dated 12 October 2007, Commander’s ACASP Issue Resolution Recommendation.   

	c.  DA Form 4187 (Personnel Action), Promotion to Specialist (SPC)/E-4 Orders.

	d.  Enlisted Record Brief (ERB), dated 17 April 2008.  

	e.  DA Form 300 (Language Proficiency Questionnaire), dated 8 August 2001, 2 April 2002, and 19 February 2008.

	f.  Certificate of Training, dated 20 November 2001, completion of Electronic Warfare/Voice Interceptor Spanish Course.

	g.  Orders 288-06, dated 15 October 2001, Award of MOS 98G (Electronic Warfare/Signal Intelligence Specialist).

	h.  Orders 290-21, dated 17 October 2001, Reassignment Orders.  

	i.  Certificates, dated 24 April 2004 showing award of the Good Conduct Medal, and 28 February 2007 showing award of the Joint Service Achievement Medal.

	j.  DA Form 4856 (Developmental Counseling Form), dated 24 April 2003, 25 July 2005, 23 May 2006, 23 June 2006, 28 November 2006, and
26 December 2006.  

	k.  Orders 274-00042, dated 1 October 2007, Promotion to SGT/E-5 Orders. 

	l.  Orders 039-060, dated 8 February 2002; and Orders 350-065, dated 16 December 2002, Award of Foreign Language Proficiency Pay (FLPP). 

	m.  DA Form 705 (Army Physical Fitness Test Scorecard), dated on miscellaneous dates.     

	n.  DA Form 5790-R (Record Firing Scorecard), dated 29 January 2002 and 14 February 2003.

	o.  DA Form 1059 (Service School Academic Evaluation Report), dated 14 December 2006.  






CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 5 years in the rank/grade of private first class (PFC)/E-3 on 25 April 2001 under the ACASP as a Spanish/American Linguist, for training as an electronic warfare/signal intelligence specialist, and a cash enlistment bonus.

2.  Item 3 of the applicant’s DA Form 3286-68 (Statement for Enlistment-U.S. Army/Army Reserve Civilian Acquired Skills Enlistment Program) states “I will be advanced to pay grade 5 in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provided I receive a memorandum from my commander.  Promotion is not automatic but depends upon my demonstration of proficiency, skill, and conduct.” 

3.  The applicant’s records show he completed basic combat training at Fort Leonard Wood, Missouri, in or around July 2001 and was transferred to Goodfellow Air Force Base, Texas, where he completed the Electronic Warfare/Voice Interceptor (Spanish) Course and was awarded MOS 98G on 20 November 2001.

4.  On 26 December 2001, the applicant was reassigned to the 314th Military Intelligence Battalion, San Antonio, Texas, a subordinate unit of the 470th Military Intelligence Brigade, Fort Sam Houston, Texas, and the Intelligence and Security Command (INSCOM), Fort Belvoir, Virginia.  He was subsequently assigned as a Voice Interceptor on 26 December 2001.

5.  The applicant's records show he received favorable counseling by his team and squad leaders on miscellaneous dates, during his tenure with the 314th Military Intelligence Battalion, as follows:

	a.  on 24 April 2003 and 25 July 2005, the applicant received a favorable performance counseling; and

	b.  on 23 May 2006, 23 June 2006, 28 November 2006, and 26 December 2006, the applicant received a favorable performance and professional developmental counseling.

6.  On 25 July 2004, the applicant was promoted to SPC/E-4. 

7.  On 14 December 2006, the applicant completed the Warrior Leader Course (formerly known as the Primary Leadership Development Course (PLDC)). 

8.  On 1 October 2007, U.S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, Arizona, published Orders 274-00042, announcing the applicant’s promotion to SGT/E-5, effective 10 November 2003.  It is unclear why the applicant's promotion orders were not published earlier than this date.

9.  On 12 October 2007, the Commander, 314th Military Intelligence Battalion, San Antonio, Texas, submitted a memorandum through the 470th Military Intelligence Brigade, Fort Sam Houston, Texas, to the Commanding General, INSCOM, Fort Belvoir, Virginia, providing a final recommendation on the disposition of unresolved unit ACASP issues.  However, this memorandum specifically addressed one Soldier whose promotion was not timely due to delay in granting her a final security clearance.  In his recommendation, the commander recommended a target promotion date within 10-14 weeks after an ACASP Soldier arrived in the unit, if otherwise qualified.  He further recommended coordination between INSCOM, the Department of the Army, and the Army Board for Correction of Military Records (ABCMR) to ensure equity to all Soldiers affected by the ACASP.  The specific Soldier mentioned in the memorandum subsequently petitioned the ABCMR for correction of her records and was granted full relief.

10.  Appendix 22 (ACASP) to Annex A of the 314th Military Intelligence Battalion Standing Operating procedure (SOP) establishes policies and procedures for processing ACASP enlistees within that battalion.  It states, in pertinent part, that each company within the battalion will identify ACASP Soldiers upon arrival to the unit, ensure each Soldier receive 8 weeks of proficiency training in his/her skill, and ensure each Soldier is counseled using the DA Form 4856 after successful completion of proficiency training by the mission supervisor.  The promotion authority commander may take action to deny or defer promotion to the accelerated grade.  The reason for denying or deferring promotion may include any failure of the Soldier to demonstrate proper conduct during the proficiency training period or failure to demonstrate minimum required level of performance for the MOS and that the Soldier must be advise4d in writing using DA Form 4856.  The effective date of promotion will be the first day after successful completion of 8 weeks of proficiency training.

11.  In the processing of this case, a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1, Recruiting Policy Branch, Pentagon, Washington, D.C.  It opined that an accelerated promotion to E-5 is authorized upon completion of all required training (where applicable), 8 weeks of proficiency training after arrival at the first duty station, and approval by the unit commander.  Accelerated promotion to E-5 and date of rank should coincide with the actual completion date of the 8 weeks of proficiency training at the first duty 
station, unless the unit commander takes action to deny or defer the accelerated grade.  If the commander with authority to promote takes action to defer or deny promotion to the accelerated grade, the Soldier must be advised in writing, by the commander, of the reason for denying or deferring the accelerated promotion.  Based on the review of the applicant’s records and the statement’s from the chain of command which indicated the applicant was serving outstandingly during this period, the advisory opinion recommended granting the applicant relief.  This recommendation is based on regulatory guidance in paragraph 7-11, chapter 7, Army Regulation 601-280, dated 28 February 1995.  The applicant performed proficiency training but was not authorized the advancement to E-5 because his security clearance had not been adjudicated, which is beyond his control.  The applicant’s date of rank and effective date of promotion should coincide with the date he completed his proficiency training and the commander recommended the promotion.  However, due to the unique circumstances in this case, it is recommended that the applicant’s date of rank and effective date be retroactive to 17 March 2002.  

12.  The applicant was provided with a copy of this advisory opinion on 4 August 2008.  He concurred on 7 August 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his promotion to SGT/E-5 was unjustly delayed has been noted and appears to have merit.  At the time the applicant enlisted under the ACASP, he was informed that he would be advanced to SGT/E-5 upon completion of his required training; a demonstration of his proficiency, skill, and conduct; and a favorable recommendation from his commander.

2.  However, after completing his training, he was assigned to a unit requiring him to have a National Security Agency security clearance and because the adjudication of this kind of clearance was delayed, he was denied advancement to SGT/E-5 until he was issued an order on 1 October 2007, with an effective date of 10 November 2003, over 6 years after he had enlisted and demonstrated that he could perform at the E-5 level. 

3.  While there may have been internal unit policies which required his security clearance to be adjudicated before he could be promoted under the ACASP, the applicant made a contract with the Army and he met all of the requirements specified in the contract on 17 March 2002, the date he should have been promoted had it not been for the delay in his security clearance.  

4.  Accordingly, it would be in the interest of justice to correct his DOR to show that he was promoted to SGT/E-5 on 17 Mach 2002, with entitlement to all back pay and allowances from that date. 

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 showing that the applicant was promoted to SGT/E5, effective and with a DOR of 17 March 2002, and entitlement to all back pay and allowances from that date.


															XXX
      ______________________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008000



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ABCMR Record of Proceedings (cont)                                         AR20080008000



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