BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20110022513 


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 that his date of promotion to staff sergeant (SSG) be adjusted to 1 April 2010.

2.  The applicant states:

* he submitted his Standard Form (SF) 86 (Questionnaire for National Security Positions) in July 2009
* the clearance was the only thing that stopped his promotion in 2010 to SSG
* the J2 in Oregon had failed to submit his request, so he resubmitted it in August 2009, and again in June 2010, and again in September 2010
* the J2 said they had allowed the 90-day review window to pass on the June 2010 request without opening the SF 86
* his clearance was approved in February 2011
* he was filling an SSG slot in recruiting and, with the exception of his security clearance, supporting documentation will show he was fully eligible to be promoted back in April 2010

3.  The applicant provides:

* Email between National Guard officials and himself
* Promotion Point Worksheet (2010)
* Memorandum from Headquarters, Oregon National Guard, dated 10 June 2010
* 
DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-8 (NCO Evaluation Report)
* SF 86 Form Completion Instructions
* Electronic Questionnaires for Investigations Processing (e-QIP) Investigation Request #79xxxxx

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Oregon Army National Guard (ORARNG) and the Regular Army (RA), the applicant enlisted in the ORARNG on 7 February 2007, for 6 years, in the pay grade of E-4.  He was promoted to pay grade E-5 on 21 May 2008.

2.  Orders 198-108 were published ordering the applicant to full-time National Guard duty in an Active Guard Reserve (AGR) status, with a 3-year active duty commitment, effective 16 July 2008.  

3.  He was assigned to the 162d Engineer Company (Mobility), Dallas, OR, as a supply sergeant.  He was reassigned to a team leader position, effective 1 July 2009.

4.  Orders 288-088 were published on 16 October 2009, ordering the applicant to active duty as a member of his unit, for 400 days, effective 7 November 2009.

5.  On 2 January 2010, the applicant's unit was deployed to Afghanistan in support of Operation Enduring Freedom.  He was released from active duty (REFRAD) on 9 December 2010, upon completion of his required active service. 

6.  On 2 December 2010, orders 336-030 were published ordering the applicant to full-time National Guard duty in an AGR status, effective 10 December 2010.  He was assigned to Recruiting and Retention, Salem, OR, as a recruiting and retention noncommissioned officer, in the pay grade of E-5.

7.  The applicant is currently a member of the AGR assigned to Recruiting and Retention, Salem, OR, as a recruiting and retention noncommissioned officer.  His Army Military Human Resources Record (AMHRR) is void of any orders promoting him to SSG (E-6).

8.  During the process of the case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), who recommends denial of the applicant's request.  NGB:

* there is no overwhelming evidence that suggests an injustice has occurred
* the documents included in his filing indicate that the delay resulted from the normal state of business related to obtaining a security clearance
* the applicant had some issues related to debt (according to the enclosed emails) that may or may not have contributed to the delay
* the security clearance is a requirement for promotion to pay grade E-6
* the security clearance was finally approved in February 2011
* the applicant believes his promotion should be backdated to the time he was first available for promotion in August 2010, since he filled the E-6 recruiting slot at that time
* without the security clearance, the applicant was not promoted

9.  Email between NGB officials shows that "even though the State drug [sic] their feet, there is no guarantee that the Central Clearance Facility (CCF) would have granted his clearance any sooner."  

10.  On 15 October 2012, the applicant submitted a rebuttal to the advisory opinion (in which he refers to himself as sergeant (SGT), not SSG) stating:

* he had to submit a security clearance packet for review four different times and to contact the State Inspector General (IG) before action was taken to process his packet
* a Soldier should not have to submit and resubmit a security clearance packet four different times over the course of almost 2 years
* it should not be considered a normal state of business 
* he does not believe it should be considered a normal state of business, that's why he submitted to this Board for review last year
* the advisory opinion states that the lack of a security clearance was the only item stopping his promotion; therefore, his request should be approved
* because no action was taken by the State until his fourth request was submitted and the State IG was contacted, he believes the responsibility for the delay rests entirely with the State and the organization
* the email that was included with the advisory opinion also supports his request because Army officials state that "the State drug their feet" when it came to processing his request

11.  The applicant provides copies of email correspondence between National Guard officials and himself showing that he continuously inquired about his security clearance between January 2010 and August 2010.  He provides:

* email showing that he requested a copy of the AGR "EPS" list
* Enlisted Promotion Point Worksheet showing his qualifications for promotion to pay grade E-6
* pages of an SF 86 Form Completion Instructions, which was certified on 15 July 2009
* pages of e-Quip Investigation Request #79xxxxx, which was certified on 3 June 2010
* pages of e-Quip Investigation Request #87xxxxx, which was certified on 30 September 2010

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) contains the Army's enlisted promotion policy.  Paragraph 1-10 contains guidance on non-promotable status Soldiers.  It states that a Soldier without an appropriate security clearance or favorable security investigation for promotion to the grade and military occupational specialty (MOS) is in a non-promotable status and will regain promotable status the day they receive the appropriate level clearance.  Paragraph 1-16 provides the policy and security clearance prerequisites for promotion.  It states that the following security clearance requirements are a prerequisite for promotion:  

* to specialist through sergeant first class requires the clearance required by the promotion MOS, or an interim clearance at the same level

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  He is requesting adjustment of his date of promotion to SSG to 1 April 2010.  Although the advisory opinion states his security clearance was finally approved in February 2011, in his rebuttal to the advisory opinion, dated 15 October 2012, he refers to himself as SGT, not SSG.  There is no evidence in the available record, nor has he submitted any evidence, showing he has yet been promoted or recommended for promotion to SSG even after the security clearance process was completed.  

3.  By regulation, a member must hold the clearance required by the promotion MOS, or an interim clearance at the same level.  A Soldier without an appropriate security clearance or favorable security investigation for promotion is in a non-promotable status and will regain promotable status the day they receive the appropriate level clearance.  

4.  The evidence of record confirms that the applicant was granted a security clearance in February 2011.  There is no information regarding why the final clearance eligibility was delayed and there is no evidence of record or independent evidence provided by the applicant that shows he was granted an interim Secret clearance or higher at anytime during the security clearance investigative process.  

5.  Absent any documentary evidence of record or independent evidence provided by the applicant that shows he held a valid interim Secret security clearance or higher prior to February 2011, or that shows his clearance was delayed due to administrative error and not for cause, it is concluded that he remained in a non-promotable status until that date.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

6.  In view of the foregoing, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x____  ___x_____  ___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 for correction of the records of the individual concerned.




      _______ _   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)                                         AR20110022513





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ABCMR Record of Proceedings (cont)                                         AR20110022513



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