IN THE CASE OF:	  

		BOARD DATE:	  27 May 2009

		DOCKET NUMBER:  AR20090003665 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) denial of his request for Foreign Language Proficiency Pay (FLPP) with entitlement to back pay from June 1996.

2.  The applicant states he would have had to have been proficient in Hungarian in order to enter the course of instruction for military occupational specialty (MOS) 97E.  He states that Military Personnel (MILPER) Message 
Number 02-162 identifies Hungarian as being on the critical language list.  The applicant states that in accordance with paragraph 6-3b(4) of Army Regulation 611-6 he was exempt from the requirement that he be assigned to a position requiring proficiency in the requisite language and performing the duties of the position because he maintained MOS 97E as his SMOS.  He states that because he has maintained a secondary MOS (SMOS) of 97E he is a career linguist regardless of what duty position he is assigned to.  He states he is in full compliance with Department of Defense Financial Management Regulation (DODFMR), Section 190101 (Entitlement) A, B, and D and is in fact eligible for FLPP.

3.  The applicant provides, in support of his application, excerpts from Army Regulations, an electronic mail (e-mail) message from an unknown source, an excerpt from Section 190101 of the DODFMR, an article from an unknown source, his certificate for completion of the course of instruction for the MOS of 97E (Interrogator), and his orders for promotion to staff sergeant/pay grade E-6 and sergeant first class/pay grade E-7.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002146, on 12 November 2008.

2.  In the ABCMR's original decision, the applicant's request was denied due to him not having been assigned to military duties requiring proficiency in the requisite language and not performing the duties of the position.

3.  The applicant has not submitted any evidence that was not previously reviewed by the ABCMR.  However, he has submitted a new argument which requires that his case be reconsidered by the ABCMR.

4.  The applicant argues that in accordance with paragraph 6-3b(4) of Army Regulation 611-6 he was exempt from the requirement that he be assigned to a position requiring proficiency in the requisite language and performing the duties of the position because he maintained MOS 97E as his SMOS.  He argues that because he maintained a SMOS of 97E he is designated a career linguist.  He argues he has met the requirements of Section 190101 A, B, and D and is in fact eligible for FLPP.

5.  U.S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, AZ Orders 155-14, dated 3 June 1996, awarded the applicant the PMOS of 97E (with linguist capability in Hungarian).

6.  State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, NC Orders 205-008, dated 9 September 1996, ordered the applicant in the rank of sergeant/pay grade E5 to full-time National Guard duty in the Active Guard Reserve (AGR) "to serve as FTM [full time manning] - Recruiting and Retention NCO [noncommissioned officer], E7" for a period of 3 years (ending 8 September 1999).

7.  Headquarters, 1st Battalion, 113th Field Artillery, North Carolina Army National Guard (NCARNG), Charlotte, NC, Orders 9-7, dated 28 April 1998, promoted the applicant to staff sergeant/pay grade E6.  These orders also awarded the applicant the PMOS of 13B (Cannon Crewmember) and SMOS of 97E and withdrew the applicant's PMOS of 79T (Recruiting and Retention NCO (Army National Guard) and SMOS of 13B.



8.  A DA Form 2166-7 (NCO Evaluation Report) shows the applicant was assigned in the MOS of 97B (Counterintelligence Agent) during the period from September 1999 to January 2000.  However, there is no evidence of annual certification in proficiency in Hungarian during this period.  

9.  On 1 August 2000, the applicant was assigned in the MOS of 13B to Headquarters, State Area Command (STARC), Raleigh, NC.

10.  On 29 April 2003, the applicant was promoted to sergeant first class/pay grade E-7 and awarded the PMOS of 88M (Motor Transport Operator) with a SMOS of 97E.

11.  A DA Form 330 (Language Proficiency Questionnaire), dated 23 December 2003, certified the applicant as proficient in Hungarian.  This certification is valid for a period of 12 months.

12.  On 1 August 2004, the applicant was assigned in the MOS of 42L (Administrative Specialist) to Joint Forces Headquarters - NC, Raleigh, NC.

13.  On 11 April 2005, the applicant was commissioned a second lieutenant in the NCARNG and assigned to the Transportation Corps.

14.  A DA Form 330, dated 12 December 2007, certified the applicant as proficient in Hungarian.  This certification is valid for a period of 12 months. 

15.  Army Regulation 611-6, effective 16 February 1996, in effect at the time, provided criteria for individual Soldier eligibility for FLPP.  

   a.  Paragraph 6-3b(3) provided the requirement for certification by the Army within the past 12 months as proficient in a designated foreign language.
   
   b.  Paragraph 6-3b(4) provided the requirement for assignment to military duties requiring proficiency in the requisite language and performance of the duties of the position.   This paragraph also provided an exemption from the duty position requirement for Soldiers who had a PMOS in career management field (CMF) 96 (Military Intelligence).  

16.  Army Regulation 611-201 (Enlisted Career Management Fields and Military Occupational Specialty), then in effect, indicates that CMF 96 contains 11 MOSs used predominantly in military intelligence units concerned with the collection and development of intelligence information and in intelligence staff sections in units at division level and higher.  The MOS of 97E is listed as one of the 11 MOSs. 

17.  All Army Activities (ALARACT) Message 111305Z April 2000, Subject: Changes to Foreign Language Proficiency Pay, provided changes to the FLPP Plan effective 1 April 2000.  The ALARACT provided that in order to receive FLPP a Reserve Component Soldier must  be certified proficient within the last 12 months in a foreign language for which the Department of the Army has a critical need and assigned to military duties requiring proficiency in the requisite language and performing the duties of the position.  Soldiers having a PMOS of 97E were exempt from the duty position requirement.  Hungarian was listed under the FLPP II critical languages list.

18.  ALARACT Message 111305Z April 2000 defined FLPP I as the level of pay for career linguists - those Soldiers who were certified as proficient and qualified in a critical language and assigned to documented duties requiring such proficiency or those Soldiers who are in the exempt categories for assignment.  FLPP II was defined as the level of pay for non-career linguists - Soldiers who are certified as proficient in a language but are not assigned to a documented duty requiring such proficiency in a language and are not required to be proficient in a language to maintain their MOS or branch code.

19.  ALARACT Message 091642Z April 2002, Subject: Clarification of Foreign Language Proficiency Pay, stated in paragraph 5 that linguists who do not have a current DA Form 330 (Language Proficiency Questionnaire) must be tested to initiate FLPP orders and the effective date will be the date the Soldier tests.  Hungarian was listed under the FLPP I critical languages list.

20.  MILPER Message Number 02-162, Subject: Foreign Language Proficiency Pay (FLPP), clarified ALARACT Message 091642Z April 2002.  Hungarian remains listed under the FLPP I critical languages list.  However, Hungarian was removed from the FLPP II critical languages list.  Effective date for the revised language lists was 9 April 2002.

21.  MILPER Message Number 06-233, Subject, Foreign Language Proficiency Pay (FLPP) Revision changed the Army policy on Foreign Language Proficiency Pay effective 18 August 2006.  According to this change in policy, all Soldiers were eligible for FLPP based on their language capabilities and if their language(s) was authorized on payment lists "A," "B," or "C."  The Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA/M&RA) will identify the critical languages for which the Army will pay FLPP.  Annual certification remained a basic eligibility requirement, to include general officers.  The ASA/M&RA did not identify Hungarian as a critical language. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the PMOS of 97E on 3 June 1996.  It is reasonable to conclude he was certified proficient in Hungarian at that time and the certification was valid for a period of 12 months.

2.  The applicant is correct in his interpretation of Army Regulation 611-6 concerning the exemption of assignment in effect in 1996.  However, further reading of the regulation (subparagraph (a) to paragraph 6-3b(4)) shows that in order for the exemption from the duty position requirement to apply the Soldier must have had a PMOS in CMF 96.  This regulation also requires certification by the Army within the past 12 months as proficient in a designated foreign language (in this case Hungarian).  

3.  Orders, dated 28 April 1998, show the applicant's PMOS was 79T prior to that date.  This PMOS was withdrawn effective 28 April 1998 and he was awarded the PMOS of 13B.  The exemption from the duty position requirement would have only applied to the applicant during the period of time he had a PMOS of 97E.  There is no evidence showing when the applicant's PMOS of 97E was withdrawn.  His certification would have expired 3 June 1997 (12 months from completion of course of instruction for the MOS of 97E) and there is no evidence of his recertification.  Therefore, there is insufficient evidence to determine entitlement of FLPP during the period from 3 June 1996 to 28 April 1998.

4.  The applicant's NCO Evaluation Report shows that he was assigned in a duty position requiring language capability with a language - dependent MOS during the period from September 1999 to January 2000.  However, there is no evidence the applicant had been certified proficient within the past 12 months in the language.  Therefore, he was not entitled to FLPP for this period. 

5.  The applicant has not been assigned to documented duties requiring proficiency in Hungarian since 1 August 2000.  The evidence shows his awarded PMOSs were 13B, 88M, or 79T, and he was assigned as a 42L on 1 August 2004.

6.  ALARACT Message 111305Z April 2000 defined career linguists (FLPP I) and non-career linguists (FLPP II).  The ALARACT also required Reserve Component Soldiers to be certified proficient in an identified language within the last 
12 months.  The exemption from the duty position requirement if the Soldier had a PMOS in CMF 96 still applied.  The applicant was not in a position that required proficiency in Hungarian and he did not hold a PMOS in CMF 96 at the time (97E was listed as his SMOS).  Therefore, he was not a career linguist but was eligible for FLPP II (non-careerist) because Hungarian was listed on FLPP II.  However, there is no evidence that he had been certified in Hungarian in the last 
12 months.  Therefore, based on the lack of annual certification, the applicant is not entitled to FLPP II during the period from April 2000 to April 2002.

7.  MILPER Message Number 02-162 retained Hungarian on the FLPP I critical language list but removed Hungarian from the FLPP II critical language list effective 9 April 2002.  The applicant was not in a position that required proficiency in Hungarian and he did not hold a PMOS in CMF 96 at the time (97E was listed as his SMOS).  Therefore, although the applicant had certified in Hungarian on 23 December 2003 (making his certification valid until December 2004) he was not eligible for FLPP payment due to Hungarian having been removed from the FLPP II critical language list.

8.  In MILPER Message Number 06-233 ASA/M&RA did not identify Hungarian as a critical language on payment lists "A," "B," or "C."  Therefore, payment of FLPP is not authorized for Hungarian unless a Soldier is assigned to a position that requires proficiency in Hungarian.  There is no evidence the applicant is assigned to a position that requires proficiency in Hungarian.  Therefore, he is not entitled to FLPP.  It should be noted that the requirement for annual certification remains a basic eligibility requirement.

9.  The applicant contends he met all the requirements set forth in the DODFMR for payment of FLPP.  However, the evidence shows he did not meet the basic requirement of annual certification of his proficiency in Hungarian (paragraph 190101A) during the periods from 3 June 1997 (12 months from completion of the 97E course of instruction) to 23 December 2003 and from 23 December 2004 through 11 December 2007.  Therefore, based on the fact the applicant failed to certify his proficiency on an annual basis, he would not have been entitled to FLPP during those periods regardless of all other considerations.

10.  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 that requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____XX___  ___X___  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 AR20080002146, dated 12 November 2008.




      _______ _   _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)                                         AR20090003665



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ABCMR Record of Proceedings (cont)                                         AR20090003665



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