MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2001064804

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O’Shaughnessy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Reinstatement on the original promotion list to captain, retroactive promotion to captain effective 1 February 2000 with an effective date of rank of 1 February 2000, payment of back and allowances, and removal of all paperwork related to a 19 January 1999 suspension of favorable personnel action (flag).

APPLICANT STATES: That he was promoted to captain effective 1 February 2000, but that his promotion orders to captain were revoked on 14 February 2000. He further states that a “Congressional investigation” concluded that he was non-promotable on 1 February 2000 because 18th Aviation Brigade had imposed a flag on him for adverse action. He contends that the flag was erroneous, undirected, and has summarily been removed with explanation. The applicant contends that with that flag removed he is once again in a promotable status effective 1 February 2000. As a result, the applicant states that he is requesting that the Army Board for Correction of Military Records (ABCMR) correct his records so that he may continue his career in the United States Army without delay.

In support of his application, the applicant submitted a personnel action document which is labeled “Encl 1,” a 12 February 2001 letter from the Office of the Chief of Army Legislative Liaison to a Member of Congress which is labeled “Encl 2,” a 27 April 2001 memorandum by the colonel in command of the 18th Aviation Brigade to the Commanding General of the U.S. Total Army Personnel Command [hereafter identified as PERSCOM] which is identified as “Encl 3,” and a copy of a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) which is identified as “Encl 4.”

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Oregon Army National Guard (ARNG) on 21 May 1991 and participated in the ARNG Simultaneous Membership Program while in the Reserve Officer Training Corps at Oregon State University. The applicant was appointed as a Reserve Commissioned Officer of the Army effective 9 June 1995. He completed the Initial Entry Rotary Wing Flight Training and the Aviation Officer Basic Course on 14 January 1997 and subsequently served in Army aviation positions at Fort Bragg, North Carolina. He deployed with his unit from Fort Bragg to Bosnia and returned to Fort Bragg where he is currently assigned.

Records show that the applicant was considered by and selected for promotion to captain by the FY 1999, Captain, Army Competitive Category, Promotion Selection Board which recessed on 23 June 1999.

Evidence of record shows that, on 23 September 1999, the colonel commanding the 18th Aviation Brigade at Fort Bragg, North Carolina, appointed a captain serving on his staff as an investigating officer (IO) to conduct an inquiry under the provisions of the Rules for Courts-Martial (RCM) 303. The stated purpose of the inquiry was “to inquire into allegations that [the applicant’s rank and name omitted] fraternized and engaged in an unprofessional relationship with PFC [a female Private First class/pay grade E-3 hereafter identified PFC TG].” This unprofessional relationship was alleged to have occurred while the applicant and PFC TG were deployed as members of the 1st Battalion, 159th Aviation Regiment to Bosnia.

The appointing officer specifically directed the IO to make findings of fact concerning the following:

         “a. Did the [the applicant’s rank and name omitted] fraternize on terms of military equality with PFC TG in violation of Article 134, UCMJ [Uniform Code of Military Justice]?

         b. Did [the applicant’s rank and name omitted] have sexual relations or other prohibited social contact with PFC TG in violation of AR 600-20 [Army Regulation 600-20 (Army Command Policy and Procedures)], paragraph 4-14 (Article 92, UCMJ)?

         c. What impact if any did [the applicant’s rank and name omitted] relationship with PFC TG have on good order and discipline within their unit?”

The appointing officer further directed the IO would not expand the scope of the investigation without approval, would provide recommendations for appropriate disciplinary action or corrective action, would take statements, would consult with the chief of the criminal law division at Fort Bragg to receive a legal briefing before beginning the investigation and would provide his report in memorandum format not later than 24 September 1999.

The IO submitted a memorandum, SUBJECT: Findings of RCM 303 Commander’s Inquiry, dated 28 September 1999. In this memorandum, the IO stated he found substantial evidence that:

         “a. [The applicant’s rank and name omitted] fraternized on terms of military equality with PFC TG in violation of Article 134, UCMJ.

         b. [The applicant’s rank and name omitted] had sexual relations and other prohibited social contact with PFC TG in violation of AR 600-20, paragraph 4-14 (Article 92, UCMJ).

         c. [The applicant’s rank and name omitted] and PFC TG’s relationship adversely impacted good order and discipline with the unit, as well as lowering the morale of the soldiers who knew about it.”

Based on these findings, the IO concluded that the misconduct took place based on the preponderance of the information taken from sworn statements. The IO recommended that “appropriate disciplinary action should be taken.”

The applicant’s Official Military Personnel File (OMPF) contains General Officer Memorandum of Reprimand (GOMOR), dated 14 October 1999, which was tendered by the Army major general in the duty position of Deputy Commanding General of XVIII Airborne Corps. This reprimand states:

         “1. An investigation determined that you fraternized on terms of military equality with a female subordinate soldier. Your relationship with this soldier violated the standards concerning proper officer-enlisted relationships and adversely impacted good order within your unit during its recent deployment to Bosnia.

         2. You are hereby reprimanded for this misconduct. You have betrayed the trust and confidence reposed in you. As an officer, you are expected to be a role model and adhere to the highest standards of professional behavior. Your failure to meet so basic an obligation makes it doubtful that you can ever be an effective Army leader.

         3. This is an administrative action and not punishment under the provisions of Article 15, UCMJ. I am considering filing this reprimand in your Official Military Personnel File. However, I will consider any matter you wish to submit in rebuttal before I take action.

         4. You have seven days from the receipt of this reprimand to respond by endorsement, as prescribed by Army Regulation 600-37, paragraph 3-6. You may enclose any rebuttal at that time.”

Records show the applicant, read, understood and acknowledged receipt of the GOMOR on 19 October 1999. He also elected to submit a statement in his own behalf.

In a memorandum, dated 10 November 1999, the applicant submitted his statement and documents in response to the GOMOR. As summarized, the applicant denied any illegal, inappropriate or other than professional behavior. He contended that he was “unfairly accused by innuendo.” In this memorandum, the applicant states that his noncommissioned officer in charge (NCOIC) alleged an inappropriate relationship between the applicant and PFC TG in order to avoid nonjudicial punishment.

The applicant also argued in his rebuttal that his battalion commander “made decisions and conducted himself in a manner that was not quite appropriate.” He stated that he filed an Inspector General complaint against the battalion commander due to the “bias way in which he dealt with soldiers.”

The applicant further contended that the commander’s inquiry into the allegations of misconduct between him and PFC TG were “as a whole poorly conducted and biased from the onset.” He contended that the investigation could not be properly conducted in the 48 hours allotted or the six days that it actually took to complete the inquiry. The applicant also argued that there were numerous errors and discrepancies within the investigating officer’s findings. Specifically, the applicant contends that the IO should have asked certain questions if he was trying to be fair and impartial; that the IO was “very unprofessional, improper and blatantly biased” in the collection of information from two soldiers; that the IO did not ask more members of the battalion if they knew of the applicant’s relationship; that the IO improperly inferred the applicant and PFC TG had a date the night prior to the deployment to Bosnia; and that the IO failed to ask the questions and present the facts regarding the enlisted women’s quarters and statements by two female enlisted soldiers (roommates of PFC TG) regarding discussion of the applicant’s sexual exploits while two other roommates of PFC TG knew nothing about such conversations.

The applicant also asserted that he never told a sergeant that he was having a relationship with PFC TG as claimed by the sergeant. He further contends that this sergeant was harassing PFC TG and this sergeant made this statement to discredit PFC TG in case she filed charges against the sergeant.

The applicant then denied the fact that he was attempting to punish his NCOIC for actions against PFC TG and that he replaced an officer on the “R and R” [Rest and Relaxation] manifest so PFC TG could go on R and R with him [the applicant]. He asserted that he performed his duties as the battalion adjutant “admirably” and that he made the “right decisions for the right reasons when it came to [name of the applicant’s NCOIC omitted].” The applicant further contended that the investigation into his IG complaints in Bosnia would “substantiate” his position, but it could not be presented because a request for the IG report was denied.

The applicant concluded his rebuttal by again asserting that “at no time was there any illegal, inappropriate or other than professional behavior between PFC TG and myself.” He then stated the facts of the matter:

         “(1) [His NCOIC’s name omitted] was about to be punished for his actions, (2) he gathered statements from his friends to avoid punitive actions; (3) he discredited me before I could write his less than favorable NCOER [Noncommissioned Officer Evaluation Report], (4) and he retaliated against PFC TG for EO [equal opportunity] and IG complaints against [the names of the NCOIC and another NCO omitted].”
The applicant further contended that the battalion commander waited until the unit’s return to the United States from Bosnia to convene a commander’s inquiry, instead of doing it in Bosnia in the 10 days remaining before redeployment. He states that he could have presented a stronger case if he could have spoken with several soldiers he knew in Bosnia. The applicant also states his belief that the battalion commander let his NCOIC “off the hook” and then used the allegations involving the applicant as retribution for the IG complaints filed against the battalion commander in Bosnia by the applicant. The applicant also contends that the battalion commander passed “damning comments” about him to the 18th Aviation Brigade Commander and to the Deputy Commanding General of the XVIII Airborne Corps at the welcome home ceremony thereby presenting a negative image of the applicant and biasing them from the beginning. The applicant also contended that the battalion commander passed the inquiry off to the commanding officer of the 18th Aviation Brigade so that it would not appear to be a form of retribution on his part.

Again the applicant asserted that the IO did not have enough time to conduct a complete inquiry and that he was “guided with regards to the focus of his investigation.” The applicant also stated that the IO indicated that he was told whom to interview and then the applicant asserts that “someone was clearly guiding him [the IO] on a witch hunt” which, as a result, explains the “one-sided incompleteness of his findings.” The applicant contends that the scope of the IO’s questions and the lack of impartiality shows bias and a rush to judgment; that his findings were not only biased but were wrong, and that the IO failed to search for the truth. The applicant concludes that, in the end, he was damned by innuendo and left maligned to the chain of command.

The applicant concluded his rebuttal by requesting that the GOMOR be removed from his record. He also requested that his supervisor complete a change of rater officer evaluation report (OER) because he was concerned that the senior rater portion of his OER will not properly reflect his performance as the adjutant or his potential as an officer.

On 29 November 1999, the applicant’s battalion commander reviewed the GOMOR, supporting documents and the applicant’s rebuttal to the GOMOR. The battalion commander recommended that the GOMOR be filed in the applicant’s OMPF.

On 29 November 1999, the commander of the 18th Aviation Brigade reviewed the GOMOR, supporting documents and the applicant’s rebuttal to the GOMOR. The commander of the 18th Aviation Brigade recommended that the GOMOR be filed in the applicant’s OMPF.

On 17 December 2000, PERSCOM published Orders Number 351-041 which announced promotion of the applicant to captain effective 1 February 2000.
In a 4 January 2000 memorandum, the Deputy Commanding General of XVIII Airborne Corps notified the applicant of his intent to consider certain statements in making a decision on the filing of the GOMOR and referred these statements to the applicant in accordance with paragraph 3-6 of Army Regulation 600-37 (Unfavorable Information). The memorandum provided the applicant five days from receipt of the memorandum to respond by indorsement. On 4 January 2000, the applicant indicated by his signature that he read, understood, and acknowledged the referred information.

By a memorandum, dated 7 January 2000, the applicant responded to the 4 January 2000 memorandum from the Deputy Commanding General of the XVIII Airborne Corps.

In his response, the applicant requested consideration of “points of interest.” Specifically, he recounts that a captain in the unit indicated in his statement to the IO that this matter was primarily speculation and he did not see any negative impact on the good order and discipline of the unit. The applicant also asserts that no one else in the chain of command saw an adverse impact on the good order and discipline of the unit and that he would expect to have heard about it from the chain of command, not from his poor performing NCOIC who was about to receive an Article 15 and a very poor NCOER.

The applicant also set forth his contention that a female specialist found PFC TG’s bragging about the existence of a sexual relationship and the location of the sexual encounters difficult to believe. He also points out that in his initial rebuttal there are sworn statements from two privates which contradict PFC TG’s claim of a sexual relationship.

The applicant then describes a situation which he contends shows “this is a bias against me.” He states that in December 1999, a female officer had just been married to her boy friend of two years. During this time, the applicant contends that the boy friend was a member of her platoon while she was the platoon leader. After the female officer informed the unit commander of her marriage, the applicant contends that the unit commander told her that “she did the right thing under the new policy and sent her on her way.” The applicant concluded that this action is a “personal attack against him” and his “career is being destroyed on pure speculation and rumor” while the female officer is “patted on the back for getting married” and is sent on her way.

The applicant concluded his statement by stating that speculation and rumor did not impact on good order and discipline within the unit. The applicant further asserts that he is being persecuted on assumptions while a female officer marries one of her enlisted soldiers and is sent on her way with her commander’s blessing. Finally, he stated: "This is not a matter of equality or fact but a personal attack against me with the intent of destroying my career initiated by [the name and rank of his NCOIC omitted] and exploited by [the name of his battalion commander at the time in question omitted].”

After considering the circumstance surrounding the incident involving the applicant, considering alternative non-punitive measures, and considering matters submitted in rebuttal, the Deputy Commanding General of XVIII Airborne Corps determined that the GOMOR should be filed permanently in the applicant’s OMPF. By memorandum dated 21 January 2000, the Deputy Commanding General of XVIII Airborne Corps notified the PERSCOM of his decision to permanently file the reprimand in the applicant’s OMPF.

PERSCOM Orders Number 045-51, dated 14 February 2000, revoked that portion of PERSCOM Orders Number 351-041 pertaining to promotion of the applicant. The authority for the revocation of the promotion orders was paragraph 1-22 of Army Regulation 600-8-29 (Officer Promotions).

The applicant was notified of referral of his case to a Promotion Review Board (PRB) by PERSCOM memorandum dated 16 February 2000. This notification advised the applicant that Headquarters, Department of the Army (HQDA) regularly screens promotion lists to determine if anyone on the promotion list may have become physically, mentally, morally or professionally unqualified for promotion after being selected for promotion. The memorandum noted that review of the applicant’s records revealed he had received a GOMOR which was not seen by the promotion board which selected him for advancement to captain and that, as a result, the applicant’s records would be forwarded to a PRB and he would be in a non-promotable status until a final decision is rendered by the Secretary of the Army.

The notification memorandum also advised the applicant that he would be allotted 30 days from receipt of this notification to submit information on his behalf stating why he should be retained on the captain promotion list. The applicant was further advised of the processing times and that he would be notified of the Secretary of the Army’s decision approximately 120 days after the PRB considered his records.

In a 22 March 2000 memorandum addressed to the President of the PRB, the applicant essentially stated that he is not giving up and that perceptions led to his current situation. He stated that he “never meant to give the perception [he] was acting in an inappropriate manner.” He also stated that he believed that he was a “good officer” and “very capable of performing duties that require even greater responsibility.” The applicant stated that he possessed the “skills and maturity commensurate with the rank of Captain” and that he provided additional letters from company commanders, the battalion executive officer, and other soldiers attesting to his abilities and the positive qualities he possesses. He concluded his memorandum to the President of the PRB by stating that “(I)n view of these qualities I am asking that my name remain on the promotion list."

By memorandum, dated 18 April 2000, the Deputy Chief of the Promotions Branch at PERSCOM referred the GOMOR, the applicant’s OMPF, his Officer Record Brief (ORB) and his memorandum to the President of the PRB for consideration by a PRB.

Evidence of record shows that, on 27 April 2000, a PRB considered whether or not the applicant’s name should be removed from the FY 1999 Captain Promotion List. A majority of the members of the PRB voted to retain the applicant’s name on the promotion list because records presented to the PRB “failed to adequately substantiate criminal intent or wrong doing.”

On 17 November 2000, the Office of the Judge Advocate General of the Army and the Office of the Army General Counsel reviewed the PRB report and found no legal objection with the report.

On 12 December 2000, the Deputy Chief of Staff for Personnel (DCSPER) nonconcurred with the recommendation of the PRB and recommended removal of the applicant’s name from the FY 1999 Captain Promotion List. The DCSPER wrote the reason for his disagreement with the recommendation of the PRB:

         “I disagree with the Board [the PRB]. This officer should not be promoted to Captain. Not only did he get the reprimand to be filed in the Official File, a strong message from the Deputy Corps Commander, but [the applicant’s rank and name omitted] has expressed no remorse for the incident. The bottom-line of this lengthy response prepared by [the applicant’s rank and name omitted] is that he blames others, attempts to divert attention by introducing unrelated incidents involving others and he fails in any manner to show me that he has the character to serve as an officer. I recommend that he be removed from the promotion list to captain.”

On 16 December 2000, the Assistant Secretary of the Army (Manpower and Reserve Affairs) wrote in own hand that he concurred with the assessment of the DCSPER. The Assistant Secretary of the Army (Manpower and Reserve Affairs) then indicated that he recommended removal of the applicant’s name from the promotion list to captain.

On 21 December 2000, the Vice Chief of Staff of the Army, acting for the Chief of Staff of the Army, reviewed the recommendation of the PRB. The Vice Chief of Staff of the Army recommended removal of the applicant’s name from the captain promotion list and forwarded the action to the Secretary of the Army for decision.

On 2 January 2001, the Secretary of the Army, acting on behalf of the President of the United States, determined that the applicant’s name should be removed from the promotion list to captain.

The Chief of the Promotions Branch at PERSCOM notified the applicant by memorandum, dated 9 January 2001, that the Secretary of the Army, acting on behalf of the President of the United States, had removed his name from the FY 1999 Captain Promotion List and that, as a result, he would not be promoted. A copy of the DA Form 268 lifting the flag imposed by HQDA was also provided to the applicant with this memorandum.

In the preparation of this case, an advisory opinion, dated 14 January 2002, was provided by the Chief of the Promotions Branch of PERSCOM. The PERSCOM advisory opinion initially restated the essential facts of the case, specifically that the applicant was selected for promotion to captain by the FY 1999 Captain Promotion Selection Board, that he was subsequently promoted on 1 February 2000, and that the promotion to captain was revoked effective 14 February 2000. The Chief of the Promotions Branch asserted in the advisory opinion that the applicant received a GOMOR which placed the applicant “in a non-promotable status; therefore, he should never have been promoted.”

The advisory opinion then essentially described the reason for the GOMOR and the determination by the Deputy Corps Commander of XVIII Airborne Corps on 21 January 2000 that the GOMOR would be permanently filed in the applicant’s OMPF. The advisory opinion then states that the Promotions Branch at PERSCOM received the filing determination on 14 February 2000 and issued a flag (a DA Form 268) which resulted in a PRB in accordance with paragraph
1-19a (9) of Army Regulation 600-8-29. The advisory opinion asserts that the applicant’s contention an erroneous flag initiated on 19 January 2000 placed him in a non-promotable status is not correct. The advisory opinion points out that the GOMOR from the Deputy Commanding General of XVIII Airborne Corps delayed the applicant’s promotion as supported by paragraph 1-19a (9) of Army Regulation 600-8-29.

The advisory opinion then described the processing of the PRB report which has already been described in this Memorandum of Consideration. The Chief of the Promotions Branch noted that the Executive Officer to the Chief of Army Legislative Liaison had responded to a Member of Congress regarding the applicant’s case and that the applicant has not provided any additional information as a basis to overturn the decision of the Secretary of the Army. Therefore, the Chief of the Promotions Branch recommended that the applicant’s request to the ABCMR be denied.

The PERSCOM advisory opinion was furnished to the applicant for review and comment by letter dated 15 November 2001. The applicant requested an extension of the 27 December 2001 suspense for comments which was granted. The applicant eventually responded to the advisory opinion by memorandum, dated 6 March 2002.

In paragraph 2 of his comments, the applicant purports to present a quotation from the 12 February 2001 letter from the Executive Officer to the Chief of Army Legislative Liaison to the Member of Congress:

         “If you look at LTC [the name of the Executive Officer to the Chief of Army Legislative Liaison omitted] memorandum he states, ‘Lieutenant [name of the applicant omitted]…states the proper reason why his February 1, 2001, promotion was delayed. Lieutenant [name of the applicant omitted] was flagged on January 19, 2000, and therefore, he should never have been promoted on February 1, 2000.’”

The applicant then states that after the Member of Congress notified him of the reason for the delay of his promotion, he inquired into the 19 January 2000 flagging action and the commander of the 18th Aviation Brigade investigated the validity of the flagging action. The applicant summarized the findings of this investigation in his rebuttal to the PERSCOM advisory opinion and provided a supporting memorandum from the commander of the 18th Aviation Brigade, dated 27 April 2001. The applicant stated:

         “First, 18th Aviation Brigade promoted me on February 1, 2000, because ‘To the best of their knowledge, there was nothing preventing [the applicant’s rank and name omitted] from being promoted…’”

         “Second, my promotion was delayed because, ‘[the applicant’s rank and name omitted] was in a non-promotable status on 1 February 2000 because he was flagged by this [18th Aviation Brigade] command on 19 January 2000.’”

“Lastly, ‘…it was determined that the flagging action on [the applicant’s rank and name omitted]…dated 19 February 2000 was undirected and erroneous.’ The flag has been removed.”

In conclusion, the applicant argues that he “was never flagged nor should [he] have been flagged on 14 October 1999 as LTC [name of the Chief of Promotions Branch, PERSCOM, omitted] eludes.” The applicant continues that “[o]nce the investigation is complete and action has been taken any and all flags are removed.” He then cites the commander of the 18th Aviation Brigade to the effect that 18th Aviation Brigade did not flag the applicant.

The applicant then restates his request to the ABCMR that he be reinstated on his original promotion list, that he receive retroactive promotion with an effective date of rank to 1 February 2000, that he receive all back pay and allowances and that all “paperwork” initiated by the 19 January 2000 flag be removed.

Attached to his application and attached to his comments in rebuttal to the PERSCOM advisory opinion, the applicant provided a copy of a 12 February 2001 letter from the Office of Army Legislative Liaison to a Member of Congress. This letter responded to an inquiry by the Member of Congress into the applicant’s acts of misconduct and promotion issues. This letter initially describes the applicant’s inappropriate relationship and the means by which such violations of regulation and the UCMJ may be handled including procedures for issuing a letter of reprimand. The letter clearly points out that the applicant engaged in an inappropriate relationship, he “lied about the nature of the relationship” and that such conduct “displays an inability to lead and questionable integrity.”

The 12 February 2001 letter to the Member of Congress also addressed the promotion issues apparently raised by the applicant to the Member of Congress. The letter from the applicant to the Member of Congress is not in the records available to the ABCMR. The second paragraph on page 2 of the letter from Army Legislative Liaison to the Member of Congress stated:

         “[The applicant’s rank and name omitted] mentioned that AR 600-8-29 states the proper reason why his February 1, 2001 [sic 2000], promotion was delayed. [The applicant’s rank and name omitted] was flagged on January 19, 2000, and therefore, he should never have been promoted on February 1, 2000. However, promotion orders had been initiated because of the time it takes for the unit to process a flagging action and notify PERSCOM. On February 1, 2000, [the applicant’s rank and name omitted] was in a non-promotable status. Headquarters, Department of the Army did not take him off the list. They simply delayed [the applicant’s rank and name omitted] promotion until a PRB decided to either retain or remove him from the list.”

The applicant also provided a 27 April 2001 memorandum (SUBJECT: Erroneous Flagging Action—[the applicant’s rank, name and social security account number omitted]) signed by the commander of the 18th Aviation Brigade and addressed to the Commanding General of PERSCOM. In summary, this memorandum stated that the Promotions Branch of PERSCOM asserted that the applicant was in a non-promotable status on 1 February 2000 because he was flagged by the 18th Aviation Brigade on 19 January 2000. Further, the commander of the 18th Aviation Brigade acknowledged that an investigation had been completed on the applicant months earlier, but at no time did the 18th Aviation Brigade flag him. However, in the paragraph numbered “3” of this memorandum, the commander of the 18th Aviation Brigade wrote:

         “3. Recommendation. After reviewing the findings of the inquiry, it is determined that the flagging action on [the applicant’s rank, name and social security account number omitted] dated 19 January 2000 was undirected and erroneous. We have removed the 18th Aviation Brigade flag from the SIDPERS [Standard Installation/Division Personnel System] system effective immediately. Please ensure his records are corrected and contact my Deputy Brigade Commander, when complete.”

Attached to the 27 April 2001 memorandum by the commander of the 18th Aviation Brigade and the applicant’s application to the ABCMR was a copy of a SIDPERS computer printout showing the applicant’s name and social security account number and dated “00/02/15” [15 February 2000] and the heading “ADVERSE ACTION SUSPENSION” and the following two entries:

         “SFPARS F ELIM/RMVL PR LIST HQDA DTSFPA 20000214 TSFPAR A INITIAL REPORT” [Essentially this entry shows that Headquarters Department of the Army suspended favorable personnel actions on the applicant effective 14 February 2000 based on data code F (Elimination or removal from selection list-HQDA initiated)].

         SFPARS A ADVERSE ACTION (AA) DTSFPA 20000119 TSFPAR A INITIAL REPORT” [Essentially this entry shows that the applicant’s unit suspended favorable personnel actions on the applicant effective 19 January 2000 based on data code A (Adverse action --charges, restraint, or investigation; courts-martial; nonjudicial punishment; AWOL; administrative reduction; and letter of reprimand when not administered as nonjudicial punishment)].

Also attached to the 27 April 2000 memorandum by the commander of the 18th Aviation Brigade is a copy of DA Form 268, dated 11 May 2001. This document removed the flag which had been previously initiated on the applicant.

Also attached to the applicant’s comments in rebuttal to the PERSCOM advisory opinion was an 8 March 2002 memorandum addressed to the President of the PRB from the applicant’s battalion commander during the time the applicant was promoted to captain and when the promotion was revoked. This Army lieutenant colonel described the events that led to the GOMOR, asserted that the flagging action imposed on the applicant was erroneous and argued that, as a result, the applicant should never have been “prevented from his promotion” and that he should be “promoted retroactively based on the erroneous flag action.” The applicant’s former battalion commander concludes with laudatory comments about the applicant’s performance, conduct and potential and a statement of strong support for the applicant in correcting this error.

Rule 303 of the Rules for Courts-Martial (RCM) provides for a preliminary inquiry into reported offenses. Specifically, Rule 303 of the RCM states that upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into charges or suspected offenses. The discussion of Rule 303 states that the preliminary inquiry is usually informal; it may be an examination of the charges, an investigative report, or other summary of expected evidence; and it should gather all reasonably available evidence bearing on guilt or innocence and any evidence relating to aggravation, extenuation, or mitigation.

Article 92 of the Uniform Code of Military Justice (UCMJ) governs failure to obey order or regulation. Specifically, Article 92, in effect, states that any person subject to the UCMJ shall be punished as a court-martial may direct if that person violates or fails to obey any lawful general order or regulation, if that person has knowledge of any other lawful order issued by a member of the armed forces which it is his or duty to obey, and fails to obey the order; or that person is derelict in the performance of his or her duties.

Article 134 of the UCMJ is the general article. Specifically, Article 134 of the UCMJ states, in effect, that all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital of which persons subject to the UCMJ may be guilty shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Paragraph 1-19 of Army Regulation 600-8-29 (Officer Promotions) describes non-promotable status. Subparagraph 1-19a states: “An officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of orders) when the officer is—“

         [Subparagraphs 1 through 8 and 9 through 12 omitted]

         “(9) The recipient of a referred Academic Evaluation Report (AER), a referred Officer Evaluation Report (OER), or a Memorandum of Reprimand (directed for filing in the official military personnel file before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion.”

Paragraph 1-20 of Army Regulation 600-8-29 governs delay of officer promotions. This provision states that the promotion of any officer who is in a non-promotable status is automatically delayed and that a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the period of the delay. The office preparing the DA Form 268 must give the officer written notice of the reason for delay of promotion before its imposition or as soon after as possible.
Subparagraph 1-20c of Army Regulation states: “If within 6 months after the effective date of promotion, new information results in a determination by HQDA that an officer was, on the effective date of the promotion, in a non-promotable status, that promotion will be deemed to have been automatically delayed. In such a case, the officer’s promotion is void and the order announcing the promotion will be revoked. The officer must be immediately notified of this fact. Also immediate steps will be taken to resolve the case or seek further delay. However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of promotion and treated as though the delay had not been imposed.

Paragraph 1-22 of Army Regulation 600-8-29 governs revocation of officer promotion orders. In pertinent part, this provision states that a promotion order will be revoked when the commander who executed the promotion or higher commander determines that the promotion is void because any one of the following: (1) the promotion was not authorized by competent authority; (2) the officer was erroneously selected and considered for promotion; or (3) the officer was in a non-promotable status on the effective date of promotion.

Chapter 8 of Army Regulation 600-8-29 (Officer Promotions) governs Promotion Review Boards (PRB). The regulation states that the President or his designee may remove the name of an officer in a grade above second lieutenant from a list of officers recommended by a selection board (10 USC 629(a)) and that this authority has been delegated to the Secretary of the Army. The regulation further states that PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned officer on a promotion list is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion.

Chapter 8 of Army Regulation 600-8-29 states in pertinent part that Headquarters Department of the Army (HQDA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for many reasons which include, but is not limited to, a referred officer evaluation report, punishment under Article 15 of the Uniform Code of Military Justice, any court-martial conviction, a memorandum of reprimand placed in the Official Military Personnel File (OMPF), adverse documentation filed in the OMPF, initiation of elimination proceedings, failure to make satisfactory progress in a weight control program, or other derogatory information received by HQDA but not filed in the OMPF at the time of consideration by the promotion board.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board reviewed the documents submitted by the applicant with his application and all documents submitted in rebuttal to the GOMOR, the documents related to the filing decision by the Deputy Commanding General of XVIII Airborne Corps and the applicant’s rebuttal, the applicant’s memorandum to the President of the PRB and documents related to consideration of his case by the PRB, and the PERSCOM advisory opinion and comments in rebuttal.

2. The Board considered the applicant’s contentions that he was promotable on 1 February 2000 and that he was erroneously flagged as evidenced by a “Congressional” investigation and by the 27 April 2001 memorandum from the commander of the 18^th Aviation Brigade.

3. The Board noted that the applicant was considered and selected for promotion to captain by the FY 1999, Captain, Army Competitive Category, Promotion Selection Board which recessed on 23 June 1999 and that, on 17 December 1999, orders promoting the applicant to captain effective 1 February 2000 were published by PERSCOM.

4. The Board further noted that, in the interim period between publication of promotion orders on 17 December 1999 but before the applicant’s promotion on 1 February 2000, the Deputy Commanding General of XVIII Airborne Corps determined on 19 January 2000 that a GOMOR he was imposing on the applicant was to be permanently filed in his OMPF. It was also noted this filing decision was not received at PERSCOM until 14 February 2000.

5. The Board also reviewed the regulations and law governing officer promotions, the bases for revocation of promotions and the procedures for removing an officer’s name from a promotion list. Review of Army Regulation 600-8-29 governing officer promotions at the time in question revealed:

         a. An officer’s promotion is automatically delayed, even if promotion orders have been published, when a memorandum of reprimand is directed for filing in the OMPF before the date an officer would otherwise have been promoted and when this memorandum of reprimand was not considered by the board that selected the officer for promotion.

         b. Promotion of any officer who is in a non-promotable status is automatically delayed and that a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the period of the delay.

         c. If new information received by HQDA results in the determination an officer was in a non-promotable status on the effective date of promotion, then such promotion will be deemed to have been automatically delayed. In this case, the officer’s promotion is void and the order announcing the promotion will be revoked provided that this action is taken within 6 months of the effective date of promotion.

         d. The President or his designee may remove the name of an officer in a grade above second lieutenant from a list of officers recommended by a selection board (10 USC 629(a)) and that this authority has been delegated to the Secretary of the Army.

         e. PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned officer on a promotion list is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion.

6. Based on the foregoing, the Board determined that the applicant’s argument that he was in a promotable status on 1 February 2000 and therefore should be restored to the FY 1999 Captain Promotion List is without merit for the following reasons.

         a. Based on Army Regulation 600-8-29, it is clear that the filing decision by the Deputy Commanding General of XVIII Airborne Corps on 19 January 2000 immediately and automatically delayed the applicant’s promotion, thereby placing him in a non-promotable status effective on the date of that decision which was almost two weeks prior to the effective date of his promotion to captain.

         b. PERSCOM immediately upon receipt of the filing directive from the Deputy Commanding General of XVIII Airborne Corps properly determined the applicant’s promotion was void, revoked the promotion order effective 14 February 2000, flagged the applicant and notified the applicant and his chain of command of the basis for the revocation of the promotion orders. All of these actions were also taken in accordance with Army Regulation 600-8-29.

         c. PERSCOM also promptly notified the applicant of referral of his case to a PRB and provided him an opportunity to communicate with the President of the PRB prior to consideration of his case.

         d. The applicant’s case was properly considered by a PRB which made a recommendation that underwent legal review and was properly reviewed by the DCSPER, the Assistant Secretary of the Army for Manpower and Reserve Affairs, and the Vice Chief of Staff of the Army. After considering the recommendations of the PRB and senior Army officials, the Secretary of the Army, acting for the President of the United States, removed the applicant’s name from the FY 1999 Captain Promotion List as provided for by law and regulation.

7. Notwithstanding the dispute regarding the flagging action by the 18th Aviation Brigade, evidence of record shows that such a flag existed in SIDPERS effective 19 January 2000. However, this matter is not a basis for this Board to grant the relief requested because the filing determination by the Deputy Commanding General of XVIII Airborne Corps, not the disputed flagging action, was the basis for the applicant’s non-promotable status.

8. In the absence of evidence that the applicant was improperly declared non-promotable or that the decisions to revoke the applicant’s promotion orders and to remove his name from the FY 1999 Captain Promotion List were procedurally flawed, contrary to law and/or regulation or otherwise unjust or inequitable, there is no basis to restore the applicant’s name to the FY 1999 Captain Promotion List or to promote him to captain. As a result, there is also no basis to consider those portions of his request for back pay and allowances as a captain or amendment of his date of rank or effective date of promotion.

9. 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 either requirement.

10. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JTM__ ___SK___ __TEO___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064804
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020606
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	310.0000.0000
2.
3.
4.
5.
6.