BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20090021949 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 reinstatement of Promotion Orders Number 1-7 dated 3 January 1984 and retroactive promotion to the rank of sergeant major (E-9) with an effective date of 1 February 1984 and a date of rank of 19 January 1984. 2. The applicant states: a. An injustice and errors occurred in the removal board proceedings which were initiated by personnel of the 1st Special Forces Battalion, 7th Special Forces Group, Fort Bragg, NC and the Assistant Personnel Officer, XVIII Airborne Corps, Fort Bragg, NC; b. His evidence shows when he retired from the military, personnel at the Corps Adjutant General's (AG) office, Fort Bragg, NC knew his address in Fayetteville, NC and the letter dated "2 May 1986" from DAPC-MSP-E, United States Army Military Personnel Center should have been forwarded to his address; c. It is his firm belief that the letter of reprimand (LOR) dated 1 October 1983, which was improperly filed in his Official Military Personnel File (OMPF) because the filing had not been directed by the general court-martial authority as indicated in paragraph 3, was the cause of his promotion being revoked; d. There is nothing noted in item number 17 on the DA Forms 268 (Report of Suspension of Favorable Personnel Action) showing he was given a copy of the reports either in person or by mail, which is in violation of Army Regulation (AR) 600-31; e. The DA Form 268 and Orders Number 159-42 show he was reassigned on 16 August 1984 and transfer of suspension control was never done in accordance with AR 600-31; f. The DA Form 268 caused his promotion orders to be revoked because it states the action against him was final and disciplinary action had been taken; g. To give more evidence of wrongdoing, his command gave him the DA Form 268 on a specific day and on the same date made the report final; h. The letter he received dated 9 December "1983" states he had 15 working days to submit statements or documents in his own behalf to the following adverse action: * Bar to Reenlistment * Recommendation for removal from DA promotion list * Revocation of security clearance * Withdrawal of Skill Qualification Identifier (SQI) "S" i. He requested a 15-working day extension to submit his rebuttal but his commander stated he had 15 days to answer the action, which was not enough time to answer all of the adverse actions against him and, as his commanders stated, he did not receive the due process he was entitled to and a great injustice had been done; j. He was enroute to Korea when he was told to return to Fort Bragg because an investigation was being conducted regarding his outstanding debts and the results of the investigation revealed that, with one exception, no letters of indebtedness had been discovered; k. The DA Form 268 and the bar to reenlistment remained in his file until he made a special request to have them removed in September 1985; l. In accordance with AR 600-31 "THE CUSTODIAN OF THE MILITARY PERSONNEL RECORDS JACKET (MPRJ) (DA FORM 201) WILL KEEP THE FINAL DA FORM 268 IN A RESTRICTED ACCESS FILE. THE FILE IS KEPT FOR 90 DAYS FROM THE DATE OF THE CLOSE OF THE DA FORM 268. AFTER 90 DAYS, THE DA FORM 268, RELATED CORRESPONDENCE, REFERENCES WILL BE REMOVED FROM THE FILE AND DESTROYED"; m. All four of his DA Forms 268 should be reviewed as he was not the only person who noticed irregularities and dates that do not correspond to actions taken against him; n. On 16 May 1984 the "Army Enlisted Standby Board" stated that he would not be promoted to the next higher grade and paragraph 3 of the same letter stated a copy of the final DA Form 268 would be forwarded to "HQ, ATTN: DAPC-MSP-F, so as to arrive not later than 11 July 1984. The final report was not signed until 21 October 1985; o. His Senior Enlisted Evaluation Reports (SEERs) are not those of a person who deserved what he was put through while assigned to Fort Bragg and he left no outstanding debts at Fort Bragg; and p. He was never notified of the letter from DA dated "2 May 1986" and if the Board believes an injustice or errors occurred in the removal board proceedings due to input provided by members assigned to Fort Bragg, he should be compensated from the time that he should have been promoted in accordance with Promotion Orders Number 1-7 dated 3 January 1984. 3. The applicant provides: * A self-authored statement addressed to the Army Review Boards Agency dated 16 November 2009 * Orders Number 1-7 dated 3 January 1984 * A DA Form 4240 (Data For Payment of Retired Army Personnel) * A memorandum from the Chief, Promotions Branch dated 2 May 1986 * An LOR dated 1 October 1983 * Orders Number 5-34 dated 12 January 1984 * Four DA Forms 268 * Orders 159-42 dated 16 August 1984 * A memorandum notifying him of unfavorable personnel action against him dated 9 December 1983 * A request for an extension of 15 days to prepare his rebuttal to the notification of unfavorable personnel action dated 21 December 1983 * A response to his request for a 15-day extension dated 22 December 1983 * Orders 166-67 dated 31 August 1983 * Appointment of Investigating Officer memorandum dated 3 November 1983 * A message Date Time Group (DTG) 231510Z SEP 83 * Report of Proceedings by Investigating Officer dated 18 November 1983 * Memorandum for Record dated 8 November 1983 * Removal of Bar to Reenlistment dated 15 October 1985 * A Disposition Form, subject: "Assumption of Command," dated 15 October 1985 * A recommendation for removal of the Bar to Reenlistment dated 8 October 1985 * A recommendation for approval of the recommendation for removal of the Bar to Reenlistment dated 7 October 1985 * Recommendation for removal of the Bar to Reenlistment dated 30 November 1985 * A memorandum from the "ADA Commander" dated 18 November 1985, recommending reinstatement of his rank * A memorandum from the Headquarters Commandant dated 21 November 1985 * A letter from the Chief, Promotions Branch dated 21 June 1984 * Six of his SEERs covering periods of service between March 1979 and September 1985 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 28 November 1958, the applicant enlisted in the Regular Army for 3 years, in the pay grade of E-1. He completed training in basic field artillery. He remained on active duty through continuous reenlistments and extensions and was promoted through the ranks to first sergeant (E-8). 3. In a letter dated 13 August 1982, the applicant was notified by the Chief, Promotions Branch he had been reconsidered for promotion to E-9 by a DA Enlisted Standby Advisory Board, which adjourned on 22 June 1982. The letter states that he was not recommended for promotion under the criteria of the DA Promotion Selection Boards which adjourned on 18 September 1980 and 25 September 1981. 4. In July 1983, the applicant was counseled regarding his demonstrative performance as a team sergeant with "A-25." During the counseling he was told the following: * His ability as a leader in scheduling, directing and supervision of his team in accomplishing tasks was substandard * His attitude was affecting morale and discipline in the detachment * His inability to plan and staff assigned workloads among his team members was causing confusion among his team members and the training cadre * During the past several weeks and months the command received numerous telephone calls from creditors on payments concerning past due accounts that were unpaid * His situation was mentioned to his team leader, but his apparent financial situation was in such arrears that only time "may" cure his problem * He should try to reapply himself to the task at hand as a team sergeant * As a senior noncommissioned officer (NCO) he should mold his team into a unit that could work together smoothly with as little turmoil as possible * He should get with his team leader to try to work out a solution to his financial problems that had plagued him for the past few months 5. Orders 166-67 were published on 31 August 1983 assigning the applicant on a permanent change of station to Korea. 6. Message DTG 231510Z Sep 83 was published to show that the applicant was being returned to Fort Bragg, NC, due to outstanding debts at that installation and questionable security clearance. 7. On 1 October 1983, the applicant was furnished an LOR by his former commander regarding a check he wrote to the NCO Club at Fort Bragg on 14 June 1983, in the sum of $50.00. According to his former commander, he was told on 18 August 1983 the check had been returned for insufficient funds. His former commander stated the following: * At a formal counseling session held on 10 June 1983, the applicant was instructed by his team leader to inform him of any further indebtedness problems, which he failed to do * The applicant's actions were not commensurate with his rank and position as a master sergeant in the United States Army * Due to his history of debt problems and his disregard for the concerted efforts of his chain of command, the LOR was required * The LOR would be forwarded to the Commander, 1st Special Operations Command (SOCOM) with his (the commander's) recommendation that it be filed in the applicant's OMPF under the provisions of AR 600-37 * The applicant had 10 working days to respond to the allegations against him after acknowledging receipt of the LOR 8. On 11 October 1983, Orders 190-49 were published revoking Orders 166-67 (orders to Korea). 9. On 12 October 1983, the applicant submitted a rebuttal to the LOR citing the following reasons for the rebuttal: * The check that was returned to the NCO Club was "taken care of" within 5 working days * He had informed his team leader that his former roommate gave him a bad check * There was no history of debt problems within his current command, there was only a list his team leader kept on him * Being separated from his wife caused a great financial burden on him and his family * He had been doing great with his debts for the previous 6 months until the letter his command received on 3 October 1983 * His chain of command was aware of the financial situation he was in due to the separation of his family and extra expenses * His team leader should have offered him financial assistance by referring him to debt counseling, instead it was made to look as though he was not keeping his command informed of his situation * All of this was "brought up" only after he left to go on temporary duty on 10 September 1983 * If he had been present to defend himself the situation may have been different * He was unfairly treated * There was a personal conflict between him and his team leader and the situation was being used against him * Being furnished an LOR was unjust and it should remain within the battalion and destroyed after he leaves the command. It should not be placed in his OMPF 10. On 9 November 1983, a Report of Suspension of Favorable Actions (flag) was initiated against him pending the outcome of an investigation. 11. A Report of Proceedings by Investigating Officer (IO) dated 18 November 1983 shows that an informal AR 15-6 (Commander's Inquiry) was conducted into the long history of indebtedness on the part of the applicant. In the report, the investigating officer noted that there was an AR 15-6 investigation that focused on the applicant's indebtedness in 1979, which was not included in this report. The IO stated it was clearly established in the 1979 investigation that the applicant had significant difficulties paying his debts and that he was very reluctant to attempt to solve the problem. The IO also stated it was important to note that in the course of this investigation it was learned that prior to 1980 the applicant received numerous letters of indebtedness, but with the exception of the letter from United Airlines, no letters of indebtedness on the applicant had been discovered since 1980. The IO stated the preponderance of the information gathered and attached to the report indicated the following: * The applicant had a long-term problem of continuous indebtedness * The applicant was reluctant to attempt to solve this problem expeditiously * There had been a concerted effort by the applicant to reduce his debts within the last two years * The totality of his debts had overwhelmed his ability to control them * The separation (through military orders) of the applicant and his wife (an E-7) had placed an even greater financial burden on a man already overwhelmed * The responsibility for the applicant's financial status, though solely his own, was caused by a lack of positive corrective action by any of his parent units from 1979 to the present (1983) * Individuals who felt they were assisting or helping the applicant in his chain of command were ineffective * His problem had gone on long enough and should be reversed and resolved 12. The IO made the following recommendations with regard to the applicant: * Temporary suspension of his security clearance * Consideration of permanent removal from the E-9 promotion list * Placement of an official LOR in his OMPF * He be allowed to PCS to Korea with his wife * His case be placed in his OMPF and Military Personnel Records Jacket * He be barred from further reenlistment in the United States Army 13. The Report of Proceedings by Investigating Officer states that the applicant was pending receipt of an official LOR to be placed in his OMPF for indebtedness. 14. The applicant was barred from reenlistment on 9 December 1983. His commanding officer cited the AR 15-6 investigations dated 21 December 1979 and 18 November 1983 as the basis for the bar to reenlistment. 15. On 3 January 1984, the applicant forwarded a memorandum through his chain of command stating his intent to make a statement and to prepare a rebuttal to the flagging action against him; however, he was electing to submit his documents to the Commander, 1st SOCOM on 6 January 1984. He also requested to see the commanding general (CG), SOCOM prior to 6 January 1984 or that he be able to utilized the CG's open door policy. In addition, he requested to see the CG, XVIII Airborne Corps. 16. Orders Number 1-7 dated 3 January 1984, promoted the applicant to E-9 with an effective date of promotion of 1 February 1984 and a date of rank of 19 January 1984. The orders state "Promotion is not valid and will be revoked if the Soldier concerned is not in a promotable status on the effective date of promotion." 17. On 9 January 1984, the applicant's records were flagged pending removal of his name from the DA E-9 promotion list. 18. The applicant acknowledged receipt of the bar to reenlistment on 11 January 1984 and he indicated he would present his rebuttal and statements in person to the CG, SOCOM as stated in his letter dated 3 January 1984. 19. On 12 January 1984, Order Number 5-34 was published revoking so much of Orders Number 1-7 dated 3 January 1984 pertaining to his promotion to E-9. 20. On 16 January 1984, the applicant submitted a statement of rebuttal to the bar to reenlistment and he provided the following information: * The AR 15-6 investigation dated 21 December 1979 was not conducted solely against him * It was initiated by the chief of staff on allegations about the activities of some personnel in his unit by him * He would be the first to admit that he had problems from December 1978 through December 1979 * After the conclusion of the investigation in December 1979, his commander took no action against him * His acting commander tried to have his records flagged in September 1983 and in October 1983 and in each case, there was not enough evidence to warrant his records being flagged * After he PCS'd, personnel in his unit "dug up" the old AR 15-6 investigation * After the AR 15-6 investigation was read, there began to be a vendetta against him to get him back to Fort Bragg * An officer tried to have his PCS orders flagged without success * No one told him who he owes because he owes no one * He underwent clear acts of defamation, false or unjustified injury of his good reputation in his command by slander and libel * The AR 15-6 investigation dated 18 November 1983 was untrue * The sworn statements provided by two officers were made using information passed to them by a third officer * He received a copy of or acknowledged receipt of the LOR * One officer tried to get into his and his wife's checking account * The IO stated he had bounced 12 checks in 1982 and 49 checks in 1983, which is untrue * Except for the check that he wrote to the NCO Club in 1983, all of the checks that he wrote were good * The reason the check he wrote to the NCO Club bounced was because his roommate gave him a bad check * How could his commanding officer write an LOR if he was TDY until 30 September 1983 * Even with the problems he was having with his wife writing bad checks without his knowledge, the bank had never written his unit saying he failed to pay just debts * Even when his financial problems began, he was able to pay his debts, except for two checks * He was supposed to have his financial situation straightened out upon his return to Fort Bragg; however, he received no separate rations and he was in debt to the government for $166.67 per month * He was told he was going to receive a low score on his SEER * A master sergeant lied in a sworn statement when he stated he had formally counseled him (the applicant) regarding excessive indebtedness * Two letters of congratulations to him were conveniently lost in the battalion * He recommended the bar to reenlistment be dropped and that he be allowed to depart the command and the earliest possible date 21. On 16 January 1984, the applicant submitted a Statement of Rebuttal to the Recommendation for removal from the DA Promotion List. In his rebuttal he elected to make a statement of rebuttal in person to the CG, SOCOM (Airborne) and he stated: * His selection to E-9 in September 1983 is a clear indication of his high degree of professionalism and enthusiasm * Out of a approximately 900 people his sequence number was 23 * The DA E-9 Selection Board picked the best qualified people * He had received numerous awards and Letters of Commendation * The awards and Letters of Commendations he received would surely indicate why he was selected for promotion to E-9 * His rebuttal to the bar to reenlistment would support his rebuttal for removal from the promotion list 22. In a memorandum dated 25 January 1984 the applicant's battalion commander stated that he had read the applicant's response to the recommendation to bar him from reenlistment and that he did not intend to withdraw his recommendation. He stated his recommendation was based on the applicant's inability to resolve a serious debt problem which had persisted since 1979, as evident in two separate AR 15-6 investigations. The battalion commander went on to address, in detail, each of the allegations made by the applicant in his rebuttal and he stated the following: * The applicant's flagging action was initiated by his acting company commander in September 1983 * The flagging action was returned due to improper format * On 1 October 1983 a decision was made not to flag his records because he had already received an LOR and his scheduled PCS was in the best interest of him and his unit * The decision not to flag his records was made without any knowledge of his lengthy indebtedness history * After his version of the way the flagging action was handled was unable to be substantiated, the applicant retracted his statements * Only those personnel with the need to know read the 1979 AR 15-6 investigation * The applicant's PCS orders were revoked due to apparent indebtedness problems which he left unresolved at the time of his departure that could result in revocation or suspension of his security clearance * The applicant did acknowledge receipt of the LOR * Evidence provided by the applicant clearly substantiates the IO's finding that he had a history of writing bad checks * The United Airlines check was written in June 1983 and it was not paid until he (the applicant) was confronted by him (the commander) in October 1983 * The applicant was informed of the proper procedures for rebutting his SEER * The applicant's final SEER was never changed after it was signed by his rater * The draft SEER with the applicant's signature had been altered * The draft SEER that was presented to his chain of command in October 1983 as evidence did not have the applicant's signature * The applicant should be held accountable as to why his evidence has changed * While the battalion administrative section failed, not refused, to properly forward the LOR to the applicant, personnel responsible for this omission were reprimanded * The LOR was forwarded to the applicant in December 1983 23. On 25 January 1984, the applicant's records were flagged pending removal of his name from the DA E-9 Promotion List. 24. On 21 June 1984, the Chief, Promotions Section notified the applicant's commander that the DA Enlisted Standby Advisory Board, which adjourned on 16 May 1984, recommended the applicant's name be removed from the recommended list for promotion to E-9. He stated the Deputy Chief of Staff for Personnel had approved the recommendation; therefore, the applicant would not be promoted to the next higher grade and his name was removed from the recommended list. 25. The applicant's bar to reenlistment was removed on 25 October 1985. 26. In memoranda dated 18 November 1985 and 21 November 1985, members in the applicant's chain of command submitted recommendations for reinstatement of the applicant's rank to sergeant major based on the following: * several irregularities * lack of corresponding dates with action taken against him * injustice * lack of due process * outstanding professionalism * knowledge and experience 27. The applicant was honorably retired in the pay grade of E-8 on 31 January 1986, due to length of service. 28. In a memorandum forwarded through the applicant's command to the applicant dated 12 May 1986, he was notified by the Chief, Promotions Branch that information and documentation he provided revealed that LOR he received was improperly filed in his OMPF because the filing had not been directed by the general court-martial authority as indicated in paragraph 3 of the LOR. The Chief, Promotions Branch stated that information at headquarters show the applicant retired on 31 January 1986 and there were no established regulatory procedures to refer files of retired or active duty Soldiers to the Enlisted Standby Advisory Board for "promotion removal reconsideration" or to execute the promotion of non-active duty Soldiers. The Chief, Promotions Branch stated if the applicant possessed evidence which would substantiate that an injustice or error occurred in the removal board proceedings and if he desires, he may submit an application to this Board. In the memorandum, the Chief, Promotions Branch requested the applicant be advised of "this decision." 29. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the Army's enlisted promotions and reductions policy. Paragraph 1-10 outlines when Soldiers are in a non-promotable status. It states, in pertinent part, that Soldiers are in a non-promotable status if they are undergoing proceedings that may result in an administrative elimination. 30. The promotions regulation further stipulates that Soldiers who are flagged under the provisions of AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags) are in a non-promotable status, and that the failure to initiate a DA Form 268 does not affect the Soldier's non-promotable status, if a circumstance exists that requires the imposition of a flag action. 31. Army Regulation 600-8-2, paragraph 1-12 outlines the circumstances that require a flag action. It states, in pertinent part, that a non-transferrable flag is required when a member is under charges, restraint, or investigation. It stipulates that the flag action will be removed when the Soldier is released without charges, charges are dropped, or punishment is completed. DISCUSSION AND CONCLUSIONS: 1. The question in this case is whether or not Promotion Orders Number 1-7 dated 3 January 1984 should be reinstated and whether the applicant should be retroactively promoted to the rank of sergeant major. 2. His contentions regarding injustice and errors in the removal board proceedings have been considered. However, there is no evidence in the available record, nor has he provided any evidence to substantiate this contention. 3. He states, in effect, he did not receive a copy of the 12 May 1986 memorandum from the Chief, Promotions Branch. However, there is no evidence available to support this contention and even if he did not receive the memorandum, it is not sufficiently mitigating to warrant the requested relief. The memorandum simply informs him the LOR was erroneously filed in his OMPF and the steps to take if he possessed evidence which would substantiate error or injustice in the removal board proceedings. The memorandum does not prove error or injustice in the removal board proceedings as he suggests. 4. He contends the improperly filed LOR was the cause of his promotion being revoked. However, the applicant was barred from reenlistment and his records were flagged due to his indebtedness. This information is contained in his OMPF. 5. He states that the DA Forms 268 do not show he was provided a copy of the reports either in person or by mail. This statement is simply untrue. Each of the DA Forms 268 he received show that he was furnished a copy of the reports. 6. The SEERs the applicant submitted have been considered. However, he has provided no evidence of error, injustice, lack of due process, or "wrong doing" in the procedures used to revoke his promotion to E-9 or to bar him from reenlistment. 7. While there appear to have been errors made during the process of filing the LOR in his OMPF, he has not proven that the filing of the LOR in his OMPF was the only reason his promotion was revoked and his name was removed from the promotion list. 8. In a letter dated 13 August 1982, the applicant was notified by the Chief, Promotions Branch he had been reconsidered for promotion to E-9 by a DA Enlisted Standby Advisory Board, which adjourned on 22 June 1982. The letter states that he was not recommended for promotion under the criteria of the DA Promotion Selection Boards which adjourned on 18 September 1980 and 25 September 1981. He was not being recommended for promotion even before the LOR was filed in his OMPF and although the reason(s) for his non-recommendations are not stated in the available records, it is reasonable to presume it was the result of the evidence contained in his OMPF of his failure to timely pay his debts. 9. He was initially investigated in 1979 due to his failure to timely pay his debts and he had a lengthy history of indebtedness, according to the available evidence. As a result of his persistent debt problems he was investigated again in 1983. His records were flagged and he was barred from reenlistment as a result of the two investigations. Once his records were flagged and he was barred from reenlistment, both of which occurred prior to what would have been the effective date of his promotion (1 February 1984), he was no longer in a promotable status. 10. Based on the information contained in the applicant's OMPF, the decision made by the DA Enlisted Standby Advisory Board to remove his name from the promotion list was proper and he has not proven error or injustice in the decision to do so. 11. The applicant quotes paragraphs contained in AR 600-37, which pertain to the filing of derogatory information in an individual's OMPF. However, these paragraphs have nothing at all to do with the fact that his records were flagged, he was barred from reenlistment and he was not in a promotable status on what would have been the effective date of his promotion. He has not proven his records were erroneously flagged or that he was erroneously barred from reenlistment; therefore, Orders Number 1-7 promoting to E-9 were properly revoked and should not be reinstated. 12. In view of the foregoing, there is no basis for granting the applicant's request to retroactively promote him to the rank of E-9 and to pay him accordingly. 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) AR20090021949 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090021949 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1