RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 September 2005
      DOCKET NUMBER:   AR20040011511


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the effective date of his
promotion to master sergeant/E-8 (MSG/E-8) and his MSG/E-8 date of rank
(DOR) be changed to 1 June 2001, and that he be provided all back pay and
allowances due as a result.

2.  The applicant states, in effect, he wants the effective date of his
promotion to MSG/E-8 and his DOR corrected to 1 June 2001, the date he
should have been promoted.  He also requests to receive all back pay and
allowances due as a result of this change.

3.  The applicant provides the sixteen enclosures identified in the list of
enclosures included with his application in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a member of the United States Army Reserve
(USAR) serving on active duty, in the rank of MSG/E-8, in an Active Guard
Reserve (AGR) status.

2.  On 9 February 2001, a Report to Suspend Favorable Personnel Actions
(FLAG) was completed on the applicant by the commander of the 300th
Military Police Command, a brigadier general (BG).  The FLAG (DA Form 268)
was initiated based on an adverse action.

3.  On 20 June 2002, the applicant received a General Officer Memorandum of
Reprimand (GOMOR) from the Deputy Commanding General, III Corps and
Fort Hood, a major general (MG), for having had an adulterous affair with a
superior commissioned officer in violation of Article 134 of the Uniform
Code of Military Justice (UCMJ) and Army Regulation 600-20.

4.  On 19 July 2002, the applicant’s defense counsel submitted a memorandum
for consideration regarding the proposed GOMOR presented to the applicant.
Counsel argued the facts in the applicant’s case that warranted review of
the GOMOR issuing authority before he went forward with the GOMOR, or
especially whether to direct its permanent filing in the applicant’s
Official Military Personnel File (OMPF).  He indicated that while the Army
had an interest in discouraging adultery, the primary emphasis should be
focused on discouraging and punishing adultery that has an obvious adverse
effect on good order and discipline and which brings public discredit upon
the Soldier and the Army.  However, the only real victim in this case would
be the applicant, his wife and two children.
5.  Counsel further argued that potentially destroying the applicant’s
career could not make it any easier on his family, or benefit them in
anyway.  Counsel claimed that addition to the embarrassment, stress and
emotional pain the situation imposed on the applicant and his family, there
was also a significant economic penalty because the applicant should have
been promoted to MSG/E-8 in April 2001, but because of the FLAG action, he
was not.  Counsel further stated that all the evidence suggested the affair
between the applicant and the officer in question was consensual, and would
never have become known if it were not for the false allegation of rape
made by the female officer involved.

6.  On 26 August 2002, after considering the circumstances surrounding the
reprimand and the recommendations of the applicant’s chain of command, the
Deputy Commanding General, III Corps and Fort Hood, directed the
applicant’s GOMOR be filed locally.

7.  On 27 August 2002, the FLAG action on the applicant was removed based
on disciplinary action having been taken.

8.  On 21 November 2003, Orders Number 325-03 were published by the United
States Army Human Resources Command (HRC)-St. Louis.  These orders
authorized the applicant’s promotion to MSG/E-8, effective and with a DOR
of
1 December 2003.  These orders were amended by Orders Number 081-01, dated
22 March 2005, which changed the applicant’s DOR from 1 December 2003 to 4
November 2003.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Director, Army Reserve Active Duty Management
Directorate, HRC-St. Louis.  This official recommended the applicant’s
request to change his MSG/E-8 DOR to 1 June 2001 be disapproved.  He
indicated the applicant’s FLAG was lifted 26 August 2002; however, his
security clearance was not granted until 4 November 2003.  He further
indicated the governing regulation required Soldiers to have a Secret
security clearance or higher in order to be promoted.

10.  On 17 May 2005, the applicant provided a rebuttal to the HRC-St. Louis
advisory opinion.  He indicated his original security clearance was
submitted in January 1999, and the investigation was completed on 27 May
2000.  At that time, the clearance action was sent to the Central Clearance
Facility (CCF) Adjudication section for issue.  He claims his security
clearance was held up as a result of a false charges made against him by a
female officer.  He states that because of these false charges, he security
clearance was held up and delayed his promotion by 29 months.
11.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion,
and Reduction) prescribes the policy and procedures governing the
classification, advancement, promotion, reduction, and grade restoration of
applicable USAR Soldiers.  Section III contains the policy for promotion to
staff sergeant (SSG)  through sergeant major (SGM).  Paragraph 4-10
contains promotion eligibility criteria and Paragraph 4-10b(7)b states, in
pertinent part, that Soldiers being promoted to MSG or SGM must have a
final SECRET security clearance or higher at the time of promotion.

12.  Army Regulation 600-8-2 contains the policy and procedures regarding
FLAG actions.  Paragraph 1-12a(6) states, in pertinent part, memorandums of
admonition, censure, or reprimand not administered as nonjudicial
punishment will result in removal of the FLAG upon completion of filing
instructions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his security clearance, and
consequently the effective date of his promotion to MSG/E-8, were unduly
delayed based on the false accusations of a female officer and the
supporting documents he submitted were carefully considered.  However,
there is insufficient evidence to support this claim.

2.  By regulation, Soldiers being promoted to SSG through SGM are required
to have a final Secret security clearance or higher at the time of their
promotion.  The evidence of record confirms the applicant’s Secret security
clearance was not finalized until 4 November 2003, as confirmed by the HRC-
St. Louis advisory opinion.  Therefore, his promotion date of 4 November
2003, as amended in HRC-St. Louis Orders Number Orders Number 081-01, dated
22 March 2005, is his correct MSG/E-8 promotion effective date and DOR.  As
a result, there is an insufficient evidentiary basis to support a further
change to his MSG/E-8 promotion date.

3.  The applicant’s claim that his FLAG removal should have indicated his
case was closed favorably was also carefully considered.  However, by
regulation, the issue of a GOMOR will result in removal of a FLAG upon
completion of filing instructions and while nonpunitive, a GOMOR is
considered a disciplinary action under the governing FLAG regulation.  The
GOMOR issuing authority directed the GOMOR be filed locally on 26 August
2002, and the FLAG was appropriately removed on 27 August 2002.
4.  The evidence of record further confirms that while the applicant may
have been falsely accused of rape, he clearly had an inappropriate and
adulterous affair with a superior commissioned officer.  This conduct
clearly warranted the GOMOR issued.  As a result, there is no error or
injustice related to the imposition, management and removal of the
applicant’s FLAG action.  Further, the DA Forms 268 related to his FLAG
action are no longer on file and have been destroyed.  As a result, even
had there been an error in the document, it is no longer possible to make a
correction to the document in question.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  ___ENA _  ___CAK _  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.




            ____John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011511                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/13D                             |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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