RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050017969


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 that his name be added to the March 2005 major
promotion list and he receive a retroactive date of rank and back pay
equivalent to the release date of the March 2005 board's results.

2.  The applicant states that from January to May 2004, he was investigated
for the inappropriate filing of travel vouchers from May to September 2003.
 In sworn statements to the Investigating Officer (IO), he truthfully
admitted that items marked as inappropriate were oversights or filing
mistakes.  The IO labeled these mistakes as examples of poor judgment.  The
conclusion of the investigation did not recommend a General Officer Letter
of Reprimand (GOLOR) as an adverse action.  The IO recommended that he
reimburse the government for every item deemed inappropriate.  Although
prepared to do so, he was never allowed to submit a reimbursement.

3.  The applicant also states that in May 2004, the 416th Engineer Command
directed his permanent change of station orders to an 04 (major) assignment
in Alexandria, Virginia, be revoked, and emplaced a Report to Suspend
Favorable Personnel Actions (FLAG) until results of the investigation were
reviewed and submitted.  His orders were revoked two weeks before his
report date.  He was approved for promotion to major on 1 July 2004 by the
March 2004 Reserve Components Selection Board (RCSB).  On 12 September
2004, he received a GOLOR for inappropriate filing of travel vouchers.  On
the advice of his first line supervisor, he accepted this reprimand without
rebutting the charges.  With this in mind, he requested that the document
be only filed in the restricted section of his official military personnel
file (OMPF).  This request was denied.  The commander of the 416th Engineer
Command directed the GOLOR be placed in the performance section of his
OMPF.

4.  The applicant further states that on 4 December 2004, his promotable
status was flagged until a board researched possible action to remove his
name from the March 2004 promotion list.  During this time, his name was
not included for consideration for promotion to major by the March 2005
RCSB.  On 23 March 2005, in accordance with Army Regulation 135-155 and
Department of the Army (DA) policy, Headquarters DA, directed that his name
be removed from the 2004 promotion list.  However, Human Resources Command
(HRC), St. Louis, stated that, "removal of his name from the recommended
list did not preclude future promotion consideration for major providing he
remained in an active status."  Due to the extensive duration of the
promotion review, he reiterates that his name was not even reviewed for
consideration by the March 2005 RCSB.  Upon assignment to his current
stations, he had met all educational responsibilities required of a junior
major in the United States Army.

5.  The applicant provides no additional documentation in support of his
requests

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United
States Army Reserve (USAR), as a second lieutenant, effective 12 May 1990,
with prior enlisted service.  He was appointed in the Tennessee Army
National Guard (TNARNG), as a second lieutenant, effective 15 May 1990.  He
was promoted to first lieutenant effective 20 May 1993.

2.  He was separated from the TNARNG effective 2 October 1993 and
transferred to the USAR Control Group (Reinforcement).  He was reassigned
to a troop program unit effective 31 January 1994.

3.  He was promoted to captain effective 25 June 1998.

4.  He was considered and selected for promotion to major by the 2004 RCSB
that convened on 2 March and recessed on 19 March 2004.  The President
approved the board results on 2 June 2004.

5.  He was issued a GOLOR, dated 12 September 2004, which stated that an AR
15-6 investigation had documented that he had submitted several travel
vouchers seeking reimbursement for numerous improper items, and in at least
one instance, misrepresented the nature of an expense so that it would
qualify for reimbursement.  The GOLOR also stated that this incident was
serious enough to warrant filing of the GOLOR in the performance fiche of
his OMPF.  However, he had the right to submit matters on his behalf within
7 days for consideration before an actual decision was made.

6.  On 16 September 2004, the applicant acknowledged receipt of the GOLOR
and that he understood the unfavorable information presented against him.
He elected to submit a statement in his own behalf.  In his reply, the
applicant stated that he agreed that he exercised poor judgment in seeking
reimbursement of certain expense and did not challenge the proposed GOLOR.
He requested the GOLOR be filed locally or in the restricted area of his
OMPF.

7.  On 3 October 2004, the Commander, Headquarters, 416th Engineer Command,
Darien, Illinois, directed that the GOLOR be filed in the applicant's OMPF.
 The commander stated that while the officer in question admitted to poor
judgment, he was particularly troubled by the officer's repeated incidents
of misconduct.  Taken as a whole, they were well beyond the bounds of what
he would expect of a senior captain eligible for promotion.

8.  The 2005 Major RCSB convened on 8 March and recessed on 25 March 2005.
The President approved the board results on 8 June 2005.

9.  In October 2005, based on a review by the 2005 DA Reserve Components
Removal Board, the applicant's name was removed from the 2004 major
promotion selection list.

10.  In an advisory opinion, dated 27 April 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, HRC, St. Louis,
stated that the applicant was not eligible for promotion consideration to
major by the 2005 RCSB which convened on 8 March 2005.  He was selected for
promotion by the 2004 board.  Due to receiving a FLAG prior to promotion,
his file was submitted to the April 2005 DA Reserve Components Removal
Board.  The results of the board were approved in October 2005, and the
applicant's name was removed from the board's selection list.  In
accordance with Army Regulation 135-155, paragraph 2-5, while an officer's
name is on a promotion list resulting from a prior selection, the officer
may not be considered for promotion by a subsequent board.  Owing to the
fact the applicant's name was on the 2004 promotion list until October
2005, he was not eligible for promotion consideration by the 2005 selection
board.  In view of the facts, it was recommended the applicant's request be
denied.

11.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 30 May 2006.  He did not respond.

12.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that when an
officer is on a promotion list resulting from prior mandatory or position
vacancy promotion board or approved for Federal recognition in the higher
grade, that officer may not be considered for promotion by a subsequent
mandatory or position vacancy board.  The regulation also specifies that
commanders and the Commander, HRC, Office of Promotions, may recommend the
officer for removal from promotions lists when a memorandum of reprimand is
placed in the OMPF.  The Office of Promotions will notify each officer of
the final decision and will remove or retain an officer's name on the
recommended list based on the final decision.

13.  Army Regulation 135-155, chapter 4-11, further specifies that an
officer's promotion is automatically delayed when the officer is under
investigation that may result in disciplinary action of any kind being
taken against them.

14.  Army Regulation 600-37, in pertinent part, provides the policy for
authorized placement of unfavorable information in individual official
personnel files.  It provides that unfavorable information will not be
filed in an official personnel file unless the individual has been given
the chance to review the documentation that serves as the basis for the
proposed filing and make a written statement, if desired, that rebuts the
unfavorable information.  The referral to the recipient will include
reference to the intended filing of the letter and include documents that
serve as the basis for the letter.

15.  Army Regulation 600-37 also provides that a GOLOR or GO Memorandum of
Reprimand, regardless of issuing authority, may be filed in the OMPF only
upon the order of a general officer.  Statements and other evidence will be
reviewed and considered by the officer authorized to direct filing.  Once
an official document has been properly filed on the OMPF, it is presumed to
be administratively correct and to have been filed pursuant to an objective
decision by competent authority.  Thereafter, the burden of proof rests
with the individual concerned to provide evidence of a clear and convincing
nature that the document is untrue or unjust, in whole or in part, thereby
warranting its alteration or removal from the OMPF.  Only letters of
reprimand, admonition, or censure may be the subject of an appeal for
transfer to the restricted fiche.  Such documents may be appealed on the
basis of proof that their intended purpose has been served and that their
transfer would be in the best interest of the Army. The Department of the
Army Suitability Evaluation Board (DASEB) has been established as the
appeal and petition authority for unfavorable information entered in the
OMPF under this regulation.  Appeals submitted by United States Army
Reserve officers not on active duty are normally processed through the
Commander, Army Reserve Personnel Center (ARPERCEN).  The Commander,
ARPERCEN will refer the appeal through the Office of the Chief, Army
Reserve, to the Deputy Chief of Staff for Personnel with a recommendation.
The DASEB will then review and evaluate the appeal.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to correction of his records by adding his name to the March 2005
major promotion list, with a retroactive date of rank, and back pay
equivalent to the release date of the March 2005 board's results.

2.  The applicant's contentions have been noted; however, he is not
eligible for promotion consideration to major by the 2005 RCSB.  He was
selected for promotion to major by the 2004 RCSB.  Prior to finalization of
this selection, he was issued a GOLOR on 12 September 2004.  On 3 October
2004, the Commander, Headquarters, 416th Engineer Command, directed the
GOLOR be filed in the performance fiche of the applicant's OMPF.  In
October 2005, based on the results of a DA Reserve Components Removal
Board, the applicant's name was removed from the 2004 RCSB promotion
selection list.

3.  Based on the forgoing facts, the Board concludes that as the
applicant's name had not been removed from the 2004 RCSB promotion
selection list prior to the convening date of the 2005 Major RCSB (8 March
2005), he was not eligible for consideration by that board.

4.  In view of the foregoing, there is no basis for granting the
applicant’s requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SLP ___  __RML___  __JGH__  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.




                                  _____Shirley L. Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017969                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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