RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 February 2004
         DOCKET NUMBER: AR2002081343


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

Mr. Carl W. S. Chun		Director
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Curtis L. Greenway		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


1. The applicant requests correction to his date of rank for major from 10 September 2002 to a date in 2001.

2. The applicant states that he was recommended for promotion to major on 26 July 2001 and his paperwork was forwarded to his unit on 2 August 2001. On 9 October 2001, he completed transfer paperwork for the Individual Ready Reserve (IRR) for promotion to major.

3. The applicant provides copies of his promotion orders for captain and major, his transfer orders, a series of electronic mails with the Army Reserve Personnel Command (AR-PERSCOM) and his unit, and the cover page of the report of the Army Regulation 15-6 investigating officer.

CONSIDERATION OF EVIDENCE:

1. The applicant's military records show he was appointed in the Reserve, Military Police Branch, as a second lieutenant effective 23 May 1987. He was promoted to first lieutenant effective 25 May 1990 and to captain effective 25 May 1994. Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 24 May 2001.

2. The applicant was considered and selected for promotion to major by the 2001 Reserve Components Selection Board (RCSB), which convened on 6 March and recessed on 5 April 2001. The President approved the board results on 27 June 2001.

3. On 1 August 2001, the applicant was notified of his suspended promotion status based on not being assigned to a higher-grade position and not in possession of a current physical examination. He was afforded the opportunity to be transferred to the IRR to accept the promotion, request a delay of promotion, or decline the promotion.

4. On 9 September 2001, the applicant requested reassignment to the IRR for promotion to major based on the fact that there was no appropriate vacancy in his unit. The effective date of scheduled transfer was 15 October 2001.

5. On 21 September 2001, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated against the applicant. The 90th Reserve Support Command had directed an investigation under Army Regulation 15-6.



6. The cover page of the report of the Army Regulation 15-6 investigating officer's report shows that the investigating officer completed his findings and recommendations on 19 December 2001. The copies of electronic mail messages provided by the applicant show that final action by the appointing officer had not been completed as late as 1 April 2002. Copies of the findings and recommendations and final action by the appointing authority were not made available to the Board.

7. On 1 August 2002, the applicant’s FLAG was removed and his paperwork directing his transfer to the IRR was forwarded for appropriate action. He was transferred from his troop program unit, assigned to the IRR effective 10 September 2002, and promoted to major effective the same date.

8. The Special Actions Branch, Office of Promotions, Reserve Components, Total Army Personnel Command, expressed the opinion that the applicant was considered and recommended for promotion to major by the 2001 RCSB. Since he was a member of a troop program unit, his selection memorandum was sent to the Commander, AR-PERSCOM for appropriate action. However, because the officer had been flagged for adverse action, and was under an Army Regulation 15-6 investigation, no action was taken on his request for transfer to the IRR for promotion. The charges were later determined to be unfounded and the FLAG was lifted. He was transferred to the IRR effective 10 September 2002 and promoted to major on 18 September 2002 with a date of rank of 10 September 2002. He was given the earliest date he could have based on his transfer. Based on this information, it was recommended his request be denied.

9. The opinion was forwarded to the applicant for acknowledgment/rebuttal on 20 February 2003. In his rebuttal, dated 10 March 2003, he states that he attempted to obtain his transfer and promotion well before the flagging action, but his unit and its leadership failed to submit any paperwork in the proper time frame. The Army Regulation 15-6 investigation and flagging action had an effective date of 22 October 2001. The investigation was closed on 19 December 2001, but the flag remained in place. The Army Regulation 15-6 investigation regulation states that it is not supposed to have adverse action against a soldier, especially if the soldier is cleared.

10. Army Regulation 15-6 prescribes the policies and procedures for investigations and boards of officers not specifically authorized by any other directive. The regulation specifies that the primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority. It is the duty of the investigation to ascertain and consider the evidence on all sides of each issue and make findings and recommendations that comply with the instructions of the appointing authority.

11. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation specifies that when an officer has been recommended for promotion to the next higher grade, the officer’s promotion is automatically delayed when the officer is under suspension of favorable personnel actions. The regulation also specifies that the date of rank and effective date of promotion after an involuntary delay due to any adverse administrative action will be the day after the date a filing of determination is made.

12. The regulation also specifies that the maximum time in grade (MTIG) for a captain is 7 years, and that an officer selected for promotion to major the first time he/she is considered will be promoted on or before the date that he/she completes the MTIG. The officer must be serving in a position requiring the higher grade or assigned to the IRR or Individual Mobilization Augmentee (IMA). In addition, IRR and IMA officers selected by a mandatory promotion board must have completed the maximum years of service.

DISCUSSION AND CONCLUSIONS :

1. In view of the circumstances in this case, the applicant is not entitled to correction to his date of rank for major.

2. The applicant requested a transfer to the IRR on 9 September 2001 to accept promotion to major. However, the effective date for this transfer was 15 October 2001 and prior to any action being taken, a flagging action was initiated against the applicant suspending any promotion or transfer action. The FLAG was removed on 1 August 2002 and his request for a transfer to the IRR was processed. He was appropriately promoted to major with a date of rank of 10 September 2002, the date of his transfer to the IRR.

3. The applicant was not in a major’s positions on or before the date the President approved the 2001 promotion board and, pending the outcome of an investigation and recommendation, he was not qualified for promotion to major earlier. He was given the earliest date he could have based on his transfer to the IRR.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___sc___ ___rs___ ___cg_____ DENY APPLICATION


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.




                  ___Samuel A. Crumpler__
                  CHAIRPERSON

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INDEX

CASE ID	AR20020801343
SUFFIX
RECON
DATE BOARDED	20040203
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.05
3.
4.
5.
6.