MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 July 2003
         DOCKET NUMBER: AR2003085155

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas E. O’Shaughnessy		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: That his promotion to the rank of lieutenant colonel (LTC) be reinstated effective either 1 January or 1 February 2000.

APPLICANT STATES: In effect, through counsel, that he was previously selected for promotion to the rank of LTC and was placed under a suspension of favorable personnel actions (flagged) on 18 October 1999, which was lifted on 3 December 1999. He further states that he contacted officials at the Total Army Personnel Command (PERSCOM) Promotions Branch concerning his promotion and they confirmed that the flag had been lifted and published orders effecting his promotion on 1 February 2000; however, it should have been effective 1 January 2000. He goes on to state that he was promoted on 1 February 2000 and on 11 February 2000, a flag was initiated by officials at the PERSCOM and on 14 February 2000, his promotion orders were revoked. On 16 February 2000, a memorandum was initiated by the PERSCOM Promotions Branch, directing that a Promotion Review Board be convened. He contends that he was eligible for promotion when he accepted it and that he should have been promoted on 1 January 2000.

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

He was commissioned as a United States Army Reserve second lieutenant on 14 May 1983, with a concurrent call to active duty. He entered active duty on 4 July 1983 and was detailed as a field artillery officer. He was promoted to the rank of major on 1 March 1995.

The applicant was selected for promotion to the rank of LTC by the Fiscal Year 1999 LTC Army Promotion Selection Board that recessed on 30 March 1999. The applicant was stationed in Germany at the time.

On 18 October 1999, a suspension of favorable personnel actions was initiated against the applicant.

On 28 October 1999, he received an annual officer evaluation report (OER) covering the period from 28 June 1998 through 27 June 1999, evaluating him as chief, administrative branch, of a multinational Army Group Headquarters. He received maximum ratings from both his rater and intermediate raters (both colonels) and in part VIIa, under promotion potential to the next higher grade, the senior rater (SR), who was also a colonel and the commander, gave him a rating of "Do Not Promote".

In part VIIb, under potential, the SR placed him below center of mass on his SR profile and in Part VIIc, under comments on potential and performance, the SR indicated that while the applicant's performance was superb, he demonstrated character and moral flaws through his personal conduct, in that while being married, he cohabitated with a woman who was not his wife for an extended period of time and was unbecoming of an officer. The SR recommended that he not be promoted or retained as an officer.

The report was considered adverse and was referred to the applicant as such. The applicant declined to submit comments in his own behalf and there is no evidence in the available records to show that he ever appealed the OER to the Officer Special Review Board (OSRB).

On 24 November 1999, the applicant received a general officer memorandum of reprimand (GOMOR) for misconduct. The reprimand admonished the applicant for wrongfully cohabitating and engaging in an adulterous affair with a woman not his wife since July 1998, while still legally married, for failure to provide adequate support to his wife during the period of March 1999 through September 1999, and for becoming embroiled in an allegation of parental kidnapping by aiding the woman he was living with to remove her oldest son from his father's house in Louisiana, transporting the child to Virginia, and by aiding her to avoid a search by the father, attorneys and police authorities who were trying to locate the child. The reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice (UCMJ). The imposing officer informed the applicant that he would not make a final determination on filing the GOMOR until after he received and considered any response he wanted to make. There is no evidence in the available records to indicate that the applicant submitted matters in his own behalf. The imposing officer directed that the GOMOR be filed in the applicant's Official Military Personnel File (OMPF) on 7 January 2000.

Meanwhile, on 14 December 2000, the flagging action on the applicant was lifted; however, it did not indicate the date the GOMOR was directed for filing in the OMPF. On 21 January 2000, the PERSCOM published orders promoting the applicant to the rank of LTC, effective 1 February 2000. The orders specified that the promotion was not valid and would be revoked if the officer concerned was not in a promotable status on the effective date of promotion. However, on 14 February 2000, the promotion orders were revoked and on 16 February 2000, the PERSCOM dispatched a memorandum to the applicant's command requesting that they effect notification to the applicant informing him that action had been initiated to determine if he should be removed from the promotion list.

On 17 March 2000, the applicant submitted a statement in his own behalf to be considered by the Promotion Review Board in which he expressed regret for the embarrassment he had caused and asked to be forgiven for his misconduct. He also provided an explanation of the allegations regarding failure to provide adequate support for his spouse.

On 19 June 2000, a Department of the Army Promotion Review Board (PRB) convened to determine if the applicant should be removed from the promotion list. The PRB recommended that he be removed from the promotion list and the appropriate authority (Secretary of the Army) approved his removal on 27 November 2000.

Meanwhile, on 23 June 2000, the applicant received a change of rater OER ending on 14 January 2000. Again, his rater gave him maximum ratings and his SR again gave him a "Do not Promote" rating and placed him below center of mass on his SR profile. The supporting comments again indicate that the applicant's performance was superb; however, his personal conduct was reprehensible as he continued to wrongfully cohabitate with a woman not his wife while still married. He did not support the applicant's promotion or retention. The report was considered adverse and as such was referred to the applicant for comment. The applicant did not respond and the report was sent to the PERSCOM for processing. The applicant had transferred to a new assignment in Greece during this period.

On 13 March 2001, the PERSCOM notified the applicant through his command, that the applicant was required to show cause for retention on active duty because of misconduct, moral or professional dereliction. The applicant requested that a board of inquiry (BOI) be conducted and on 25 September 2001, the BOI found that the allegations of adultery, failure to provide adequate support, wrongful cohabitation, and disobeying a lawful order were supported by a preponderance of the evidence. The board recommended that the applicant be discharged from the Army because of misconduct and that he be issued a General Discharge Certificate.

After considering the recommendations of the BOI and the applicant's counsel's rebuttal and additional information, the commanding general recommended approval of the findings and recommendations of the BOI.

On 14 January 2002, the Army Board for Review for Eliminations (Show Cause Board) was convened to review the actions of the BOI that recommended that the applicant be eliminated from the service due to misconduct, moral or professional dereliction. After reviewing the evidence of record in the case, in closed session and by secret written ballot, that board found that the Government had established by a preponderance of evidence that the applicant should be eliminated from the Army for misconduct, moral or professional dereliction. However, that board recommended that he be furnished an Honorable Discharge Certificate.

Inasmuch as the applicant had over 18 years of service, the results of the show cause board convened on 14 January 2002 were forwarded to the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA M&RA) for final approval. On 8 March 2002, the ASA M&RA directed that the applicant be retained on active duty without reassignment.
Unless the applicant is selected for promotion, his mandatory retirement date will be 30 July 2003.

In the processing of this application an advisory opinion was obtained from the PERSCOM Promotions Branch, which opined, in effect, that at the time promotions orders were published, PERSCOM was unaware that the applicant had received a GOMOR that was directed to be filed in his OMPF, because it was not transmitted to the PERSCOM in a timely manner and that by operation of regulation, the promotion orders were not valid and were revoked. Officials at the PERSCOM went on to explain that Army Regulation 600-8-29 authorizes the PERSCOM to revoke promotion orders and provides guidance on what conditions constitute an individual being in a non-promotable status. Three of the conditions that were relevant to the applicant were that he was under investigation, he was under a suspension of favorable personnel actions (or should have been) and that he was the recipient of a referred OER or Memorandum of Reprimand (MOR) with directed filing in the OMPF prior to the effective date of promotion. Additionally, the regulation requires that a PRB will occur if an officer receives a MOR that is filed in the OMPF. The applicant was removed from the promotion list by the appropriate authority and the PERSCOM opined that his request should be denied.

The advisory opinion was furnished to the applicant and his counsel responded to the effect that the applicant should have been promoted on 1 December 1999; however, because he was flagged and the flag was not lifted until 3 December 1999, coupled with the fact that unit administrative personnel failed to notify PERSCOM officials that the flag had been lifted, he was not promoted until 1 February 2000. His counsel also states that had the error not occurred, he would have been promoted on 1 January 2000, before the GOMOR was directed for filing in the OMPF. She also contends that he appeared before a show-cause board and many of the allegations were found to be unsubstantiated and he was allowed to remain on active duty.

Army Regulation 600-8-29 provides the policies and procedures for promotion of commissioned officers on the active duty list. Paragraph 1-19 provides, in pertinent part, that an officer's promotion is automatically delayed (this is, the officer is not promoted in spite of the publication of promotion orders) when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her, is under, or should be under, suspension of favorable personnel actions, or is the recipient of a referred OER or MOR (directed for filing in the OMPF 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. Any or all of these conditions place an officer in a non-promotable status and constitutes an automatic delay of promotions.

Paragraph 8-2 of that regulation also provides, 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 a referred OER, a MOR directed for filing in the OMPF, adverse information in the OMPF, or other derogatory information received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.

Army Regulation 600-8-2 prescribes policies, operating tasks, and steps governing the suspension of favorable actions as a function. It provides, in pertinent part, that if a soldier is on a HQDA selection list, include on the removal flag (DA Form 268) all periods of suspension and the date the MOR was directed for file in the officer's OMPF. A copy of the removal flag will be forwarded to the PERSCOM, Officers Promotion Branch. The regulation also provides that a non-transferable flag will be initiated against individuals who receive letters of admonition, censure or reprimand not administered as nonjudicial punishment. The flag will be removed the day the letter is signed by the commander. A flag will also be imposed when an officer who is on a promotion list receives a referred OER. The flag will be removed when the OER is accepted and received by HQDA.

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. 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 this requirement.

2. The Board has noted the applicant's contention that he should have been promoted on 1 January 2000, after the flag was lifted and before the imposing officer directed that the GOMOR be filed in his OMPF and finds it to be without merit. While the administrative process of processing the flagging actions appears to have been flawed, he nevertheless remained in a non-promotable status by virtue of the referred OER ending in June 1999.

3. Accordingly, after all of the administrative oversights were corrected, the correct actions to direct a PRB and show cause board were directed.

4. The applicant submitted matters in his own behalf to the PRB and failed to convince that board that the allegations against him were unfounded and that he should remain on the promotion list. Accordingly, he was properly removed from the promotion list in accordance with the applicable regulations with no indication of any violations of his rights.

5. The applicant also presented matters in his own behalf before an BOI and again failed to convince that board that the allegations against him were unfounded. Likewise, the show cause board also found that he should be discharged for his misconduct. However, the approval authority elected to allow the applicant to reach retirement eligibility and authorized his retention on active duty.

6. The Board has noted the applicant's contention that the show-cause board found that many of the allegations were unsubstantiated and finds it to be without merit. There is no evidence in the available records to suggest that such was the case or that he was retained on active duty for such reasons.

7. Therefore, the Board finds that he was properly removed from the promotion list and that he was afforded due process in accordance with the applicable regulations.

8. 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

__mkp __ ___wtm__ __teo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085155
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/07/29
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 312	131.0200/REM FROM PROM LIST
2. 319	131.0900/ADV IN GRD
3.
4.
5.
6.