IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080010544 


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 27 November 2006 to on or bout 29 September 2005 (the date he arrived at his first duty station).  

2.  The applicant states, in effect, that he enlisted under the Army Civilian Acquired Skills Program (ACASP) as a Spanish/American Linguist with an entry rank/grade of specialist (SPC)/E04 and accelerated promotion to SGT/E-5 after completing all required training and demonstrating the appropriate level of proficiency, skill, and conduct.  He further states that upon arrival at his first duty station on 29 September 2005, having completed all required training, his battalion commander denied him promotion to SGT/E-5 because he had not obtained a Top Secret/Special Compartmental Information (TS/SCI) clearance and could not complete the 8-week proficiency training as stipulated in the unit's Standing Operating Procedure (SOP), and therefore could not be qualified in his job.  He also states that the regulation governing ACASP Soldier states that a Soldier must be "eligible for" a TS/SCI clearance and not necessarily have already obtained the clearance.  He concludes that due to the long delay in adjudicating his clearance, he was not timely promoted to SGT/E-5 until 27 November 2006. 

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

	a.  DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United states), dated 10 February 2005, and allied documents.
	b.  Memorandum, dated 12 October 2007, Commander’s ACASP Issue Resolution Recommendation.   

	c.  Self-authored letter, dated 5 June 2008.

	d.  Certificate of Training, dated 15 September 2005, completion of Electronic Warfare/Voice Interceptor Spanish Course.  

	e.  Orders 220-08, dated 8 August 2005, Assignment Orders. 

	f.  DA Form 4856 (Developmental Counseling Form), dated 27 November 2006.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) for a period of 8 years on 13 January 2005.  He subsequently enlisted in the Regular Army for a period of 5 years in the rank/grade of specialist (SPC)/E-4 on 10 February 2005 under the ACASP as a Spanish/American Linguist, for training as an electronic warfare/signal intelligence specialist and a $20,000 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 Jackson, South Carolina, in April 2004.  He was transferred to Goodfellow Air Force Base, Texas, where he completed the Electronic Warfare/Voice Interceptor (Spanish) Course on 15 September 2005.  The applicant's records are void of the orders awarding him MOS 98G.

4.  On 29 September 2005, 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.  

5.  The applicant's records show he received a favorable event oriented, 8-week training evaluation counseling by his supervisor on 27 November 2006.  

6.  On 13 April 2006, the applicant completed the Warrior Leader Course (formerly known as the Primary Leadership Development Course (PLDC)) and on 27 November 2006, the applicant was promoted from SPC/E-4 to SGT/E-5.  

7.  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 recommends a target promotion date within 10-14 weeks after an ACASP Soldier arrived in the unit, if otherwise qualified.  He further recommends 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 Soldier mentioned in the memorandum subsequently petitioned the ABCMR for correction of her records and was granted full relief.

8.  In his unsigned self-authored statement, dated 5 June 2008, the applicant states that:

	a.  he enlisted under the ACASP program, formerly known as the stripes for skills program, which qualifies non-prior service-members with critical Army needed skills to be granted an accelerated promotion, when they enlist for a certain MOS, meet all the requirements for that MOS, and can demonstrate proficiency to their training command.  The primary requirements to be promoted to SGT/E-5 for MOS 35P (formerly 98G) are eligibility for Top Secret (TS) clearance with Sensitive Compartmental Information (SCI); successful completion of MOS 35 Course; and having a minimum score of “2” in the listening and reading comprehension portions of the Defense Language Proficiency Test (DLPT); 

	b.  he arrived at his unit on 29 September 2005 and demonstrated proficiency and good conduct in the execution of his duties.  However, although he was granted an interim security clearance, his final Top Secret clearance had not been adjudicated, and as a result, he was unable to undergo the 8-weeks proficiency training required by the unit Standing Operating procedure (SOP); 

	c.  in October 2005, he worked at the 470th Military Intelligence Brigade, translating documents in his target language at the "Secret" classification level, on a daily basis.  He was finally recommended for promotion to SGT/E-5 on 27 November 2006; and
	d.  he concludes that since he completed the MOS training and showed proficiency and good conduct in the execution of his soldierly tasks, he should be promoted to SGT/E-5 effective that date he completed the Electronic Warfare/Signal Intelligence Course on 29 September 2005. 

9.  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 advised 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.

10.  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 earlier advisory opinion, provided by the Chief, Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 1 July 2008, in a similar case, should stand.  The advisory opinion rendered by the Chief, Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 1 July 2008, on yet, another Soldier from the same battalion, in a similar situation, stated, in pertinent part that:

"There is no Army policy requiring a Top Secret clearance to begin the proficiency evaluation by the unit commander.  Due to the significant time delay in processing the applicant's security clearance, the applicant was denied the opportunity to prove his ability to perform as a noncommissioned officer through no fault of his own.  The delay is out of sync with the promotion advancement offered at the time of his enlistment. Counseling statements by his superiors during this period indicate his performance was commensurate with ACASP advancement and no derogatory information was provided.  Coupled with the absence of a Unit Commander's specific date that [Applicant] became eligible to accept the accelerated promotion, a date that equates to ten weeks after his arrival to the unit, and coincides with the date his proficiency pay was initiated."
11.  In a telephonic conversation wit the Chief Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, on 29 July 2008, the Chief opined that if the applicant completed all of the required training, was demonstrating outstanding performance and proficiency in his duties, and was denied advancement because his security clearance level had not been adjudicated, something beyond the Soldier’s control, the applicant should be provided relief.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his promotion to the pay grade of 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 Top Secret security clearance and because the adjudication of his clearance was delayed, he was denied advancement to SGT/E-5 until 27 November 2006, over one year 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 29 September 2005, the date he was assigned in the MOS he enlisted for and was trained in.

4.  Accordingly, it would be in the interest of justice to correct the applicant's DOR to show that he was promoted to SGT/E-5 on 29 September 2005, 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 the pay grade of E-5, effective and with a DOR of 29 September 2005, 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)                                         AR20080010544



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ABCMR Record of Proceedings (cont)                                         AR20080010544



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