IN THE CASE OF:	  

		BOARD DATE:	    27 August 2013

		DOCKET NUMBER:  AR20130001046 


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 his earlier request for adjustment of the date of his promotion to staff sergeant (SSG) in the Oregon Army National Guard (ORARNG) to 1 April 2010.

2.  The applicant states:

	a.  In the Record of Proceedings (ROP), Discussions and Conclusions, paragraph 2, the Board states that "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."  He submitted a 12-page exhibit showing where his current command has sent a SSG promotion request to state and inquired about this promotion multiple times after his security clearance had been completed.

	b.  In the ROP, Discussions and Conclusions, paragraph 4, the Board states that "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."  He now submits email correspondence with supporting documentation from specialist (SPC) RE, the Intelligence & Security Specialist in J2 for the State of Oregon.  This individual is now responsible for handing the process of security clearances in the state.  In the email he states that "Soldier was granted an Interim in country clearance for the duration of his deployment." 

	c.  In the ROP, Discussions and Conclusions, paragraph 5, the Board states that "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...."  SPC RE provides supporting documentation concerning the multiple attempts that were made by him to have his clearance approved.  This e-Clearance document shows proof under "SII Investigation Summary" where in SPC RE's words "[Applicant] had done everything that was needed by him and submitted to Office of Personnel Management (OPM) through his chain of command ... His file was sent back as an "Unacceptable" after Soldier had entered country due to administrative error not on the Soldier's part."  

3.  The applicant provides:

* email between National Guard officials and himself
* two DA Forms 4187 (Personnel Action)
* Active Guard Reserve (AGR) Promotion Request
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement) 
* Soldier Management Report
* electronic clearance printout

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 AR20110022513, on 15 November 2012. 

2.  The applicant provides a new argument with several documents which were not previously considered by the Board.  Therefore, they are new evidence and will be considered by the Board.

3.  Having had prior service in the ORARNG and the Regular Army, the applicant enlisted in the ORARNG in the rank/grade of SPC/E-4 on 7 February 2007.  He held military occupational specialty (MOS) 21B (Combat Engineer). 

4.  His active duty orders are not available for review; however, it appears he entered active duty on 20 July 2007 under Title 32, U.S. Code, section 502f in an AGR status.  He was promoted to sergeant (SGT)/E-5 in the ARNG on 21 May 2008.  

5.  On 16 July 2008, the ORARNG published Orders 198-108 ordering him to full-time National Guard duty in an AGR status, with a 3-year active duty commitment, effective 16 July 2008.  He was assigned to the 162d Engineer Company (Mobility), Dallas, OR, as a supply sergeant.  

6.  On 27 February and 13 March 2009, he completed the required phases for the Unit Supply Specialist Course and on 29 June 2009, he was awarded secondary MOS 92Y (Unit Supply Specialist).  Furthermore, on 1 July 2009, he was assigned to a team leader position within the 162nd Engineer Company. 

7.  He was honorably released from active duty on 6 November 2009.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) listed his rank/grade and effective date of pay grade as SGT/E-5 and 21 May 2008, respectively. 

8.  He was ordered to active duty as a member of his ARNG unit on 7 November 2009 in support of Operation Enduring Freedom.  He subsequently served in Afghanistan from 2 January 2010 to 29 October 2010.  He was assigned to the 162nd Engineer Company.

9.  He was honorably released from active duty on 9 December 2010.  His 
DD Form 214 for this period of service listed his rank/grade and effective date of pay grade as SGT/E-5 and 21 May 2008, respectively. 

10.  On 2 December 2010, the ORARNG published Orders 336-030 ordering him 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 rank/grade of SGT/E-5. 

11.  He continued to perform duties in recruiting and retention pursuant to multiple orders issued by the ORARNG of various active duty commitments.  Furthermore, on 28 February 2012, the ORARNG awarded him MOS 92Y as his primary MOS and MOS 12B (previously 21B) as his secondary MOS. 

12.  On 16 May 2013, the ORARNG published Orders 136-017 promoting him to the rank/grade of SSG/E-6 with an effective date and date of rank as 26 April 2013. 

13.  Previously, an advisory opinion was obtained from the National Guard Bureau (NGB) in the processing of the applicant's case.  An NGB official recommended denial of the applicant's request and stated that there was no overwhelming evidence that suggests an injustice has occurred.  The documents included in his files indicate that the delay resulted from the normal state of business related to obtaining a security clearance and 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.  His security clearance was finally approved in February 2011.  Without the security clearance, the applicant was not promoted.

14.  On 15 October 2012, the applicant submitted a rebuttal to the advisory opinion.  He stated 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 and 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.

15.  The applicant previously provided email correspondence between ARNG 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 "Enlisted Promotion List (EPS)" list
* Enlisted Promotion Point Worksheet showing his qualifications for promotion to pay grade E-6
* pages of a Standard Form 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

16.  He now provides the following documents: 

	a.  Email correspondence from/with his unit Human Resources (HR) Noncommissioned Officer (NCO), dated July/August 2012, wherein the HR NCO indicated the applicant's promotion request was forwarded for signature. 

	b.  DA Form 4187, dated 12 July 2012, wherein the applicant's S-3 recommended him for promotion to SSG in the 2nd Battalion, 162nd Infantry, Springfield, OR.  The DA Form 4187 indicated the applicant's MOS as 92Y, E-6 position and the title of his position as "Human Resources Sergeant." 

	c.  Additional email exchange between the applicant's HR NCO and others in a follow-up email on the applicant's promotion. 

	d.  Another DA Form 4187, dated 19 November 2012, and an AGR promotion request, also dated 19 November 2012, wherein the applicant's S-3 indicated the applicant was duty MOS qualified, had passed the Army Physical Fitness Test, met the height and weight standards, and had been an E-5 for 54 months.  He was recommended for promotion to SSG/E-6 in MOS 92Y. 

	e.  An email, dated 10 December 2012, from SPC RE, the ORARNG J-2 Intelligence and Security Specialist.  The email states the applicant's security case at OPM was unacceptable.  This is proof that the applicant had done everything he needed to do and submitted his security request to OPM through his chain of command.  This shows upon his entry to Afghanistan in October 2010, his file was sent back as unacceptable after he had entered the country, due to an administrative error.  He was granted an interim clearance in country for the duration of his deployment. 

17.  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 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 was promoted to SGT/E-5 on 21 May 2008.  He entered active duty on 7 November 2009 and subsequently served in Afghanistan from 2 January to 29 October 2010.  It appears he did not have a security clearance at the time and had entered the country in what appears to be an administrative error.  Nevertheless, he was granted an interim security clearance for the duration of his deployment.  

2.  His deployment was completed on 29 October 2010 - and thus his interim security clearance would have terminated - and he was honorably released from active duty on 9 December 2010.  He returned to state ARNG control.  Although in a previous advisory opinion an NGB official stated the applicant was granted a security clearance in February 2011, there is no evidence in the record to show he was recommended for promotion at that time. 

3.  The available evidence shows the first time he was recommended for promotion was in July 2012 and November 2012, when his battalion S-3 submitted a DA Form 4187 recommending him for promotion.  It appears as his security clearance issue was ultimately finalized and/or resolved he was promoted to SSG/E-6 on 26 April 2013.  

4.  There is no 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 security clearance is a requirement for promotion to pay grade E-6.  

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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20110022513, on 15 November 2012.




      _______ _  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)                                         AR20130001046





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ABCMR Record of Proceedings (cont)                                         AR20130001046



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