IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080013316 


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, in effect, reconsideration of his request for retroactive promotion to staff sergeant (SSG)/pay grade E-6.

2.  The applicant states, in effect, he defers to his counsel.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's request for retroactive promotion to SSG (E-6) effective May 1997.

2.  Counsel states, in effect, the applicant's case has been remanded to the Army Board for Correction of Military Records (ABCMR) by the United States District Court for the District of Columbia.  Counsel also states the Board has absolutely no proof the applicant was not on a local promotion standing list in 1997, he and the applicant have provided proof that the applicant had adequate points to be on such a list, but they cannot prove this because records have been destroyed.  Counsel concludes by requesting the applicant be given the benefit of the doubt as the Board is charged with doing.

3.  Counsel provides a copy of United States District Court for the District of Columbia, [Applicant], Plaintiff, v. The Honorable Francis J. H_____, Secretary of the Army, Defendant, Civil Action 07-0____ (HHK), Order, dated 15 August 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the original consideration of the applicant's case by the ABCMR in Docket Number AR20050008771 on 16 February 2006 and in reconsideration of the applicant's case by the ABCMR in Docket Number AR20060011168 on 6 March 2007.

2.  Incorporated herein by reference also are military records identified in the Administrative Record Index, [Applicant] v. The United States, as Tabs 1-10, pages 00001-00301.

3.  The applicant's military personnel records show that he enlisted in the United States Army Reserve for a period of 8 years on 23 December 1983.  He then enlisted in the Regular Army for a period of 4 years and entered active duty on 28 June 1983.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 72E (Telecommunications Center Operator).  The applicant was promoted to the rank of sergeant (SGT)/pay grade E-5 with a date of rank of 6 July 1988, effective 1 August 1988.  He completed the Mobile Subscriber Equipment (MSE) course in 1990 and was awarded MOS 31F (Network Switching Systems Operator/ Maintainer).

4.  The applicant's military personnel records contain a DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army), dated 30 January 1998.  This document shows the applicant's rank at the time was SGT (E-5) and that he requested authorization to extend his present enlistment to the date for his retention control point (RCP).  This document also shows the applicant's commander determined the applicant was qualified for the requested action and approved his request.

5.  The applicant's military personnel records contain a DA Form 1695-E (Oath of Extension of Enlistment), dated 10 February 1998, that shows the applicant voluntarily extended his 3-year enlistment of 20 May 1994, that was previously extended by a period of 12 months on 28 November 1994, for a period of 2 months and established his new expiration term of service as 19 July 1998.

6.  The applicant's military personnel records contain a DA Form 2648 (Preseparation Counseling Checklist), dated 29 April 1998, that shows the applicant was offered preseparation counseling on appropriate transition benefits and assistance and indicated he understood that this preseparation counseling was provided to assist in his transition process as required by Title 10, United States Code, section 1142.  This document also shows, in pertinent part, that the applicant indicated he accepted further transition assistance counseling concerning separation pay and Reserve affiliation.

7.  The applicant's military personnel records contain a copy of Department of the Army, Personnel Service Support Team, MacDill Air Force Base, Florida, Orders 119-06, dated 28 April 1998, as amended by Department of the Army, Personnel Service Support Team, MacDill Air Force Base, Florida, 
Orders 168-01, dated 17 June 1998, that show the applicant was discharged in the rank of SGT (E-5) effective 19 July 1998.  The orders also show the applicant was entitled to full separation pay in the pay grade of SGT (E-5) based on 15 years, 0 months, and 21 days of service.

8.  The applicant's military personnel records contain his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was honorably discharged in the rank and grade of SGT (E-5) on 19 July 1998 based upon the completion of required active service.  At the time he had completed 15 years, 0 months, and 22 days of total active service.

9.  The United States District Court for the District of Columbia, [Applicant], Plaintiff v. The Honorable Francis J. H_____, Secretary of the Army, Defendant, Civil Action 07-0____ (HHK), Order, dated 15 August 2008, in pertinent part, remanded the applicant’s action to the ABCMR for further proceedings consistent with the Court’s Memorandum Opinion.

	a.  The Court dismissed the applicant’s claim insofar as he requested that the Court order his retroactive promotion because the Court does not have jurisdiction to review and order military promotion decisions.  However, the Court also concluded the ABCMR’s decision that there was no evidence that the applicant was on a promotion standing list in March 1997 was arbitrary and capricious because the ABCMR did not respond to the applicant’s argument that he must have been on a promotion standing list in March 1997 because he had not been discharged from the Army.  (In March 1997, the applicant had in excess of 13 years of total active service.  Army regulatory policy at the time pertaining to the RCP for Soldiers in the grade of E-5 provided that the RCP for those Soldiers who were not on a promotion standing list was 13 years and the RCP for those Soldiers who were on a promotion standing list was 15 years.)

	b.  The Court noted "[i]n its motion for summary judgment, the Secretary attempts to provide the missing explanation.  The Secretary explains that a Soldier who is placed on a promotion standing list can be removed if he fails a physical fitness test, fails to qualify for a required security clearance, or is placed in a weight control program."  The Court adds, "[b]ecause the Secretary’s explanation as to why [the applicant] may have been removed from a promotion standing list is neither in the ABCMR decision nor in the administrative record, it is an improper post hoc justification."

	c.  The Court noted that "[a] party seeking judicial review of a decision by the ABMCR must 'overcome the strong but rebuttable presumption that administrators of the military discharge their duties correctly, lawfully, and in good faith.'"  The Court also stated, "[t]he ABCMR’s decision need not be a 'model of analytic precision to survive a challenge.  A reviewing court will uphold a decision of less than ideal clarity if the [ABCMR’s] path may reasonably be discerned.'"  The Court added, "[t]he ABCMR’s explanation must, however, minimally contain a 'rational connection between the facts found and the choice made.'"

	d.  In connection with the court case, the Declaration of Thomas L. E_______, Chief, Enlisted Professional Development, Deputy Chief of Staff for Personnel, Headquarters, Department of the Army (HQDA), Pentagon, Washington, District of Columbia, dated 8 January 2008, was submitted.  The Declaration was provided to the United States District Court for the District of Columbia, [Applicant], Plaintiff, v. Pete G____, Secretary of the Army, Defendant, Civil 
Action 07-cv-0____.  The Court noted that "[t]he Secretary now argues that the Army’s personnel database demonstrates that [Applicant] did not meet the cut-off.  In so arguing, the Secretary is improperly relying on grounds other than those invoked by the ABCMR, as well as evidence that is not in the administrative record."

	e.  The Court concluded "that the Secretary’s motion to dismiss for lack of subject matter jurisdiction must be granted and the Secretary’s motion for summary judgment must be denied.  The court concludes that [Applicant’s] motion for summary judgment must be granted insofar as it contends that the ABCMR’s decision is arbitrary and capricious and denied insofar as it requests that this court order [Applicant’s] retroactive promotion."

10.  The Declaration of the Chief, Enlisted Professional Development, Deputy Chief of Staff for Personnel, HQDA, in pertinent part, shows the applicant’s promotion point data was obtained by the Chief, Enlisted Professional Development, on 16 November 2007, from historical tapes based on original Total Army Personnel Database (TAPDB) files.

	a.  The Chief, Enlisted Professional Development, provided a brief summary of the Army’s standard operating procedures for inserting the promotion point score into the Enlisted Distribution Assignment System (EDAS), including certification by authorized promotion point clerical personnel and their supervisors, and verification by the Soldier that EDAS reflects the correct number of promotion points.
	b.  The Chief, Enlisted Professional Development, states, in pertinent part, that Army regulation required annual recomputations be completed and that the recomputed points did not become effective for promotion purposes until the first day of the third month after board appearance or recomputation.

	c.  The Declaration contains a spreadsheet created from historical TABDB data that accurately reflects the information extracted from the applicant’s promotion point spreadsheet.  This information shows the following:

		(1)  The applicant appeared before a board or his score was recomputed in March 1995 and he possessed 678 points, which became effective on 1 June 1995 and remained so until 31 May 1996.

		(2)  The applicant’s score was recomputed in March 1996 and his score decreased to 643 points, which became effective on 1 June 1996 and remained so until 30 June 1997;

		(a)  the promotion point cut-off score for MOS 31F3 from 1 June 1996 through 28 February 1997 was 798 points and the applicant did not have sufficient promotion points for promotion during this period;

		(b)  the promotion point cut-off score for MOS 31F3 for the month of March 1997 was 726 points and the applicant did not have sufficient promotion points for promotion that month;

		(c)  the promotion point cut-off score for MOS 31F3 for the month of April 1997 was 688 points and the applicant did not have sufficient promotion points for promotion that month;

		(d)  the promotion point cut-off score for MOS 31F3 for the month of May 1997 was 670 points and the applicant did not have sufficient promotion points for promotion that month; and

		(e)  the promotion point cut-off score for MOS 31F3 for the month of June 1997 was 798 points and the applicant did not have sufficient promotion points for promotion that month.

		(3)  The applicant’s score was recomputed in April 1997 and his score increased to 725 points, which became effective on 1 July 1997 and remained so through 30 April 1998.  The promotion point cut-off score for MOS 31F3 from 1 July 1997 through 31 December 1997 was 798 points and the applicant did not have sufficient promotion points for promotion during this period.

	d.  The Chief, Enlisted Professional Development, stated that promotion point cut-off scores are announced monthly by the Department of the Army and, in cases where a Soldier’s promotion points meet or exceed the announced cut-off score, the promotion branch is required to again verify the points prior to publishing promotion orders as a final check in the process.

	e.  The Chief, Enlisted Professional Development, concluded by stating:

		(1)  the applicant submitted the correct promotion point cut-off scores for MOS 31F in 1997 to the ABCMR;

		(2)  the data that the Chief, Enlisted Professional Development, provides in his Declaration accurately reflects the applicant’s promotion points; and

		(3)  based on the date the applicant’s promotion points took effect, he never met or exceeded the cut-off score for his MOS.  Therefore, the applicant was not promoted to the rank of SSG (E-6).

11.  On 3 September 2008, the applicant's counsel was provided a copy of the Declaration of Thomas L. E_______, Chief, Enlisted Professional Development, Deputy Chief of Staff for Personnel, HQDA, in order to have the opportunity to respond.  On 1 December 2008, applicant's counsel provided a response indicating they:

	a.  agree that recomputations were done in March 1995, March 1996, and April 1997;

	b.  there is no explanation as to why the recomputation was not done in March 1997 in lieu of April 1997; however, had it been, the applicant would have been promoted in May 1997 because he would have had 725 promotion points with a promotion point cut-off score for MOS 31F3 of 670 in May 1997;

	c.  in April (sic) [June] 1997 the promotion point cut-off score jumped to 798 points while the applicant only had 725 points;

	d.  there is no justification for the April 1997 recomputation date, except that it could be done under regulation.  (Counsel states that it was not equitable to recompute the applicant’s points in March 1995 and March 1996 and, for no reason other than promotion denial, to recompute the applicant’s promotion points in April 1997 instead of March 1997); and

	e.  the reduction of 35 points in March 1996 is known, but the total of 643 points is suspect in that:
		(1)  the applicant indicates that his physical fitness test score went down as a result of an injury, which caused a reduction from 50 to 15 promotion points for physical fitness and the reduction from 678 to 643 promotion points is accurate; but

		(2)  there is a failure to acknowledge 30 additional points in the computation for military education, which would then result in a total of 673 promotion points.  Counsel provides copies of documents pertaining to the applicant’s military education, states that the applicant asked for their inclusion before 30 April 1996, was assured that would occur, was under the assumption that the points had been added to his total, but it did not occur.

12.  Army Regulation 601-280 (Army Retention Program), in effect at the time, provided, in pertinent part, that requests for extension of enlistment may be approved for extending to the RCP according to rank and basic eligibility criteria.

13.  HQDA, Deputy Chief of Staff, Personnel, message, date-time group 271738Z November 1996 changed the RCP of a nonpromotable SGT (E-5) from 13 years of active service to 15 years of active service effective 1 April 1997.  The RCP of a promotable SGT (E-5) remained at 15 years of active service.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the enlisted promotions and reductions function of the military personnel system.  It provides the objectives of the Army’s Enlisted Promotions System, which include filling authorized enlisted spaces with the best qualified Soldiers; career progression and rank that is in line with potential, recognizing the best qualified Soldier that will attract and retain the highest caliber Soldier for a career in the Army; and precludes promoting the Soldier who is not productive or not best qualified, thus providing an equitable system for all Soldiers.

	a.  Chapter 3 (Semicentralized Promotions - SGT and SSG), paragraph 3-1 (Promotion systems), in pertinent part, shows that promotion point cut-off scores are determined by HQDA, operations (centralized) and announced monthly for each MOS on the basis of the scores reported by the field and the needs of the Army, by grade and MOS.

	b.  Section VIII (Task:  Conduct Annual Recomputations), paragraph 3-22 (Rules for conducting annual recomputations), in pertinent part, provides that promotion points must be recomputed 12 months (plus or minus 1 month) after the last computation (initial board, reevaluation, or recomputation) without local board action.  Recomputation is mandatory and will be accomplished for those 


Soldiers who are flagged or unavailable.  If the Soldier is unavailable, a copy of the recomputed DA Form 3355 (Promotion Point Worksheet) will be provided to the Soldier as soon as possible.  The Soldier will review recomputed scores for accuracy and completeness.  The new score becomes effective on the first day of the third month following the scheduled recomputation month.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s counsel contends that the applicant’s request for promotion to SSG (E-6) should be reconsidered because the United States District Court for the District of Columbia determined that the ABCMR’s decision was arbitrary and capricious with respect to the applicant’s retroactive promotion.

2.  In the applicant’s initial application to the ABCMR, dated 20 May 2005, he stated he was discharged upon completion of 15 years of active service due to the RCP, the RCP policy changed a short time later, and that he would have been promoted 3 months after his discharge (i.e., October 1998) had he remained on active duty.  The ABCMR concluded, in pertinent part, that the RCP rules in effect at the time of his separation did not allow him to remain on active duty beyond 15 years of active service and changes in RCP rules are not retroactive.

3.  In the applicant’s previous request for reconsideration, the applicant’s contention changed from a promotion date "3 months after his discharge" (i.e., October 1998) to the contention he "should have been promoted in March 1997."  (It is noted in the applicant’s effort to obtain information pertaining to promotion cut-off scores for inclusion in his request for reconsideration, in an electronic mail message to an official at Headquarters, United States Army Human Resources Command, Promotions Branch, Alexandria, Virginia, on 14 June 2006, the applicant acknowledged, "I do remember that when I was in the military, I could go to my admin (PAC) [Personnel Administration Center] section and review past cut-off scores on micro-fiche.")

4.  The evidence of record confirms that the applicant was recommended for promotion to the rank of SSG (E-6) in MOS 31F3 and he was on a recommended list (at a minimum) from 1 June 1996 through 30 April 1998.  The evidence of record also shows that the applicant did not meet or exceed the promotion point cut-off score for MOS 31F3 during the period of service under review and he was not promoted to the rank of SSG (E-6) prior to his discharge on 19 July 1998.

5.  The evidence of record shows that promotion points must be recomputed 12 months (plus or minus 1 month) after the last computation (initial board, reevaluation, or recomputation) without local board action.  The evidence of record also shows that the applicant’s promotion points were recomputed in March 1995, March 1996, and April 1997.  Thus, the evidence of record confirms that the applicant’s promotion points were recomputed in accordance with governing Army regulatory policy in effect at the time.

6.  Applicant’s counsel contends there was no reason and it was not equitable to recompute the applicant’s promotion points in April 1997 instead of March 1997 other than to deny the applicant promotion.  He also contends that, had the applicant’s recomputation been accomplished in March 1997 (versus April 1997), the applicant would have been promoted in May 1997 because he would have had 725 promotion points with a promotion point cut-off score of 670.

7.  The evidence of record shows that the new (recomputed) promotion point score becomes effective on the first day of the third month following the scheduled (emphasis added) recomputation month.  Thus, even if the applicant’s promotion points had been recomputed in March 1997, the new (recomputed) promotion point score (725) would not have been effective until 1 June 1997 (vice May 1997 as counsel claims).  Therefore, not only did the applicant not have sufficient promotion points (643) for promotion in May 1997, he was not eligible for promotion in May 1997 based on his new (recomputed) promotion points as counsel claims.  Additionally, aside from the fact that the applicant was not eligible for promotion in June 1997 based on his new (recomputed) promotion points, the applicant’s recomputed promotion points were insufficient for promotion that month, as well.  Thus, the evidence of record confirms the applicant did not meet or exceed the promotion point cut-off score for his MOS at any time during the recomputation period in question (i.e., from 1 March 1997 through 30 April 1997) nor during the months of May 1997 and/or June 1997.  Therefore, the applicant is not entitled to retroactive promotion to SSG (E-6) during this period, despite the allegation that he was on a promotion list.

8.  The evidence of record shows that promotion point cut-off scores are determined by HQDA operations (centralized) and announced monthly for each MOS on the basis of the scores reported by the field and the needs of the Army, by grade and MOS.  The period of time (i.e., 3 months) from initial computation and/or recomputation of promotion points to the effective date of promotion point cut-off scores is central to the HQDA enlisted promotions function of the military personnel system.  This built-in, 3-month period allows the field promotion office to review, verify, and input the promotion point scores into EDAS and provides HQDA operations (centralized) the necessary time to assess the number of projected assigned Soldiers (by grade and MOS) 3 months out (i.e., considering the number of those Soldiers to be promoted in the interim period and the number of projected gains/losses, applied against the projected authorized positions).  Accordingly, HQDA may then determine the appropriate minimum promotion point cut-off score to announce to allow the requisite number of Soldiers to be promoted (by grade and MOS) in order to fill vacant authorized positions (by grade and MOS), effective the first day of the third month after the promotion points are recomputed.

9.  The applicant and his counsel now contend that the applicant’s promotion points for March 1996 (emphasis added) should have been 673 (vice 643) points and he should have then been promoted in May 1997.  They provide copies of documents pertaining to the applicant’s military education in support of their claim.  However, their contention is flawed in that, as previously explained, a recomputed promotion point score becomes effective on the first day of the third month following the scheduled recomputation month and HQDA monthly promotion point cut-off scores are not static.  That is, they are affected by the promotion point scores input into EDAS and reported to HQDA.

	a.  It is noted that in the applicant’s request for reconsideration that he submitted on 31 July 2006, he stated "I have attached a reconstructed E-6 promotion packet showing what my points should have been in March 1997, at least 728 [points]."  However, the "military education matters" that the applicant now claims should have been included in his March 1996 recomputed promotion points were not included in the previous (March 1997) "reconstructed promotion packet" he submitted to the ABCMR as part of his request for reconsideration.

	b.  The evidence of record shows that "the Soldier will review recomputed scores for accuracy and completeness."  Based on the applicant’s own admission that he knew to go to his PAC to review cut-off scores and his statement that he assumed the points had been added to his total in March 1996, it can be concluded that he failed to fulfill his responsibility and obligation as a Soldier with respect to his recomputed promotion points during the entire period of service under review.  Therefore, in view of the foregoing, applicant and his counsel provide insufficient evidence to support their claim for retroactive promotion to the rank of SSG (E-6) during the period 1 March 1996 through 31 May 1997.

10.  It is not clear why the applicant did not identify possible discrepancies in the completeness of his records and/or the accuracy of his promotion point scores during the period from March 1996 until his discharge in July 1998.  Nonetheless, the evidence of record shows that on 30 January 1998 the applicant requested extension of his enlistment commitment to his SGT (E-5) RCP.  Thus, it is reasonable to conclude that the applicant was aware that he was not eligible for promotion to the rank of SSG (E-6) during this period.  In fact, he was not promoted to the rank of SSG (E-6) during this period of time.  Moreover, the evidence of record shows the applicant requested and received transition counseling regarding separation pay based on his discharge in the rank of SGT (E-5) upon reaching his RCP.

11.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 601-280, which provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant’s promotion points were properly calculated, recorded, referred to the applicant for review and verification, and input into the EDAS.  Therefore, in view of all of the foregoing, there is insufficient evidence to support retroactive promotion of the applicant to the rank of SSG (E-6) in this case.

12.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR20050008771, dated 16 February 2006, and Docket Number AR20060011168, dated 6 March 2007.



      ___________X______________
                 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)                                         AR20080013316



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ABCMR Record of Proceedings (cont)                                         AR20080013316



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