RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         27 October 2005
      DOCKET NUMBER:  AR20050011703


      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. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 he be reinstated to the
sergeant first class (SFC) promotion list, and that he be promoted to that
rank.

2.  The applicant states, in effect, the incident that resulted in his
removal from the promotion list was an isolated incident, and is not
indicative of his level of professionalism.  He states that he accepts
responsibility for his action and requests reinstatement on the promotion
list, and promotion in order to continue the tradition of excellence and
effective leadership as a noncommissioned officer (NCO).

3.  The applicant provides the following documents in support of his
application:  U.S. Army Human Resource Command Memorandum, dated 12 July
2005; United States Army Recruiting Battalion Memorandum, dated 5 May 2005;

3 Third-Party Support Statements; Sworn Statement (DA Form 2823); Defense
Counsel Memorandum, dated 7 March 2005; Defense Finance and Accounting
Service Memorandum, dated 28 January 2005; and Record of Proceedings Under
Article 15, UCMJ, dated 25 February 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that as of the date of his application to
the Board, he was serving on active duty, in the rank of staff sergeant,
and was assigned to the United States Army Recruiting Battalion,
Jacksonville, Florida.

2.  The applicant was selected for promotion to SFC by the 2005 Department
of the Army Promotion Selection Board, and assigned a sequence number of
1 in the requirement military occupational specialty (MOS) 42A.

3.  On 17 December 2004, the applicant’s promotion to SFC was authorized in
United States Army Human Resources Command (HRC) Orders Number
352-35, with a promotion effective date and date of rank of 1 January 2005.


4.  On 28 January 2005, the Defense Finance and Accounting Service (DFAS)
sent a letter to the applicant's commander stating that the applicant had
incurred a debt for overpayment of basic housing allowance (BAH) in the
amount of $2,555.00 in August 2004.  They further stated the debt had been
collected in full over the period of October to December 2004.


5.  On 14 February 2005, the HRC Orders Number 45-1 revoked the applicant’s
SFC promotion orders.

6.  On 25 February 2005, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for violation of Article 121 of the UCMJ by stealing United
States Government funds from on or about 22 April 1999 through on or about
31 May 2004 and for violating Article 107 of the UCMJ by making a false
official statement with the intent to deceive on or about 21 June 2004.
The resultant punishment included reduction in rank to grade of Sergeant, E-
5, and forfeiture of $1,225.00 for two months.

7.  On 7 March 2005, the applicant's defense counsel submitted a memorandum
to the applicant's commander requested clarification of whether or not the
applicant had been under a suspension of favorable personnel actions (FLAG)
at the time of the incident (May 2004).  He further questioned if the
applicant may have received unauthorized punishment if in fact the
applicant's FLAG had been lifted at the time he was promoted to SFC on 1
January 2005.

8.  On 5 May 2005, the applicant requested reconsideration to retain his
rank of SFC.  He apologized for his bad judgment and stated that this
isolated incident was not indicative of his level of professionalism and
devotion to his duties as a Noncommissioned Officer.

9.  On 14 June 2005, a Department of the Army (DA) Standby Advisory Board
(STAB) after considering the applicant’s case, recommended he be removed
from the SFC promotion list.  On 27 June 2005, the Director of Military
Personnel Policy, Army G1 approved this recommendation of the STAB.

10.  The applicant provides three third party letters of support from a
Command Sergeant Major from 82nd Airborne Division, a Master Sergeant from
the
Army Recruiting Company, Valdosta, Georgia, and a First Sergeant from the
Army Recruiting Company, Jacksonville, Florida.  These individuals all
indicate that they believe the applicant should not be removed from the
promotion list.  They state the applicant is one of the best
Noncommissioned Officers in the Army and even though he made this mistake,
they would still want to have him working for them.  They also comment that
the Army needed as many high speed Soldiers as it can get.
11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes in pertinent the process of removing Soldier's from a
recommended list.  It states, in pertinent part, that any commander in the
Soldier's chain of command may recommend that a Soldier's name be removed
from a HQDA recommended list at any time, and that approval for removal
rests with HRC.  The regulation further stipulates that Soldier's must be
informed of removal action in writing.  Soldiers will be immediately
removed from the recommended list for having received punishment imposed
under the provisions of Article 15, Uniform Code of Military Justice (not
including summarized Article 15) while on the recommended list.

12.  Paragraph 4-19 of the enlisted promotions regulation states in
pertinent part, that Soldiers may appeal a removal action when the
underlying basis of the removal is subsequently determined to be erroneous.
 The subsequent determination must be based on facts that were not
available or reasonably discoverable at the time of the original action or
at the time the Soldier was notified of the removal action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that this was an isolated incident that
occurred and that he accepts full responsibility for his lack of judgment
for making false statements and stealing government funds and the
supporting statements he provided were carefully considered.  However,
these factors are not sufficiently mitigating to warrant granting the
requested relief.

2.  Notwithstanding the technical issue raised by the applicant’s defense
counsel regarding a FLAG action, the evidence of records shows the
applicant's removal from the SFC promotion list was accomplished in
accordance with the applicable regulation, and was the result of his own
admitted misconduct.  It further shows his appeal was properly considered
by a properly constituted DA STAB and that his removal from the promotion
list and the revocation of his promotion was upheld through this appellate
process.  Therefore, there is no material error or injustice related to the
removal action.

3.  The third-party supporting statements provided by the applicant were
also considered.  However, the governing regulation states, in pertinent
part, that Soldiers removed from a promotion list for cause must compete
for promotion under the criteria of the next regularly scheduled board.  As
a result, the applicant will have the opportunity to compete for promotion
to SFC, if otherwise eligible, during the next regularly scheduled DA SFC
promotion board.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  __ALR__  __LDS __  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.





                                  _____Melvin H. Meyer____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011703                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/10/27                              |
|TYPE OF DISCHARGE       |Active Duty                             |
|DATE OF DISCHARGE       |Active Duty                             |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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