RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060000061


      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, in effect, correction to his date of rank for
captain to 29 May 1999.

2.  The applicant states, in effect, that his date of rank should be based
on his selection date.  He also states that while preparing to deploy to
the Middle East for Operation Iraqi Freedom, he inquired to the Human
Resources Command (HRC), St. Louis, Missouri, as to why he was never
promoted to captain.  He was advised that he was selected on 4 May 1999,
but was pending a DA Form 268 (Report to Suspend Favorable Personnel
Actions (FLAG)).  He was provided a copy of the selection notice by
electronic mail (email) in September 2005 that he had never received
before.  Upon further investigation, he received an email from HRC, St.
Louis, that stated there was no record of any FLAG.

3.  The applicant provides copies of his Notification of Promotion Status
memorandum, his promotion orders, and email correspondence between HRC and
himself, in support of his request.

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 27 May 1990,
with prior enlisted service.

2.  He was reassigned to a troop program unit effective 17 September 1991
and promoted to first lieutenant effective 31 May 1993.

3.  He was reassigned to the USAR Control Group (Reinforcement) effective
10 January 1997.

4.  He was considered and selected for promotion to captain by the 1998
Reserve Components Selection Board (RCSB) that convened on 8 November and
recessed on 11 December 1998.  The President approved the board results on
1 April 1999.

5.  He was issued a Notification of Promotion Status memorandum, dated 4
May 1999, indicating his selection for promotion to captain with a
promotion eligibility date (PED) of 29 May 1998.  The memorandum also
advised, to be promoted, he
must remain in an active status and meet the promotion eligibility criteria
set forth in Army Regulation 135-155.  Failure to comply with these
instructions may result in his removal from the selection list.
6.  He was ordered to active duty in support of Operation Iraqi Freedom
effective 22 May 2005, for 545 days.

7.  He was issued promotion Orders Number B-05-502683, dated 27 May 2005,
showing his promotion to captain with a promotion effective date and date
of rank of 25 May 2005.

8.  Email correspondence between HRC and the applicant shows that on
21 September 2005, the applicant inquired about his promotion to captain
and flagging action.  He was advised that based on HRC findings, he was
promoted on the earliest date possible after his documents were updated in
the system.

9.  The Soldier Management System (SMS), HRC, St. Louis, shows that the
applicant's security clearance had been administratively downgraded
reference security update message 00-03, dated 29 September 2000.  The SMS
did not contain a copy of the message.  The SMS system did not address
whether or not the applicant possessed a current physical examination or
any other reasons that may have prevented his promotion upon selection by a
RCSB.

10.  In an advisory opinion, dated 28 February 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, HRC, St. Louis,
stated that the applicant was considered and non-selected for promotion to
captain by the 1997 RCSB.  He was subsequently selected for promotion by
the 1998 RCSB and notification of his selection was mailed on 4 May 1999.
The Personnel Action Pending Code in the system for the applicant at the
time of his consideration by the boards showed that there was a flagging
action pending against him.  Due to the fact the documentation for the
action is no longer available the reason for the action is unknown.  The
applicant was mobilized on 22 May 2005, and at that time it was discovered
the flagging action code was still in the system.  Since there was no
documentation available to back-up the action, the flag was removed and the
applicant was promoted with a date of rank of 22 May 2005[sic], the flag
removal date.  Based on the removal date of the flag, 22 May 2005[sic] is
the earliest date of rank the applicant is eligible for.  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 rebuttal on 9 June 2006.  In his rebuttal, dated 22
June 2006, the applicant stated that he was notified of his non-selection
status after that board convened.  He immediately contacted his branch
manager, as he had not been advised he was being considered.  He was
advised the only reason he was non-selected by that board was that there
was not a copy of his college diploma in his file, which he faxed
immediately.  He was apparently selected by the 1998 board which brings us
to the issue in question, his date of rank.  He never received the
notification letter or, as previously, he would have responded immediately.
 Having now been provided the letter in September 2005, he saw no mention
of any flagging action or instruction to contact them.  He finds this
surprising as since the reason for the flag is not known, it could be just
as likely that the flag was a mistake itself and should not have been
there.

12.  In his rebuttal, the applicant further stated that when he first
inquired as to the reason for his non-promotion, he was advised it was for
an expired physical.  This is an example of why he thinks it was in error
and should be corrected.  He had kept his physicals current until last year
when it expired less than a month before he was to report to active duty
and he decided to have it done there.  He is presently in talks with a unit
at Fort Lewis, Washington, about joining.  He simply asks the Board to
provide him an opportunity to continue his career with the military in a
competitive manner with his peer group, which he is already behind now.  He
also stated, in effect, that he should not be hindered by a negative action
that can neither be defined nor explained by those who say it was correct
but have no evidence or even documentation to back it up.

13.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that completion
of 5 years time is grade is required before promotion to captain.
Individual Ready Reserve and Individual Mobilization Augmentee officers
selected by a mandatory promotion board must have completed the maximum
time in grade.  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.

14.  Army Regulation 135-155, paragraph 4-11a (3-5), specifies that the
officer must be medically qualified, have undergone a favorable security
screening, and must meet standards of the Army Body Composition Program.
Paragraph 4-13 specifies that promotion authorities will ensure that a
favorable security screening is completed before announcing a promotion.
The military personnel records jacket will be screened to ensure that
derogatory or unfavorable suitability information is not contained therein
for promotion purposes.  If the results of this screening are favorable,
final promotion action may proceed.  If the screening reveals derogatory or
unsuitable information, the promotion authority will cause a National
Agency Check (NAC) to be conducted.  Final action on the promotion will be
withheld until the results of the NAC are received.
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 captain to 29 May 1999.  He
has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions have been noted; however, based on a review
of the promotion database system, pending the outcome of his flagging
action, he was not qualified for promotion to captain on the approval date
of the 1998 RCSB or his PED.  His FLAG action was discovered when the
applicant was scheduled to be mobilized on 22 May 2005.  At that time since
there was no documentation to back up the flagging action, it was removed
and the applicant was promoted to captain effective 25 May 2005.

3.  Without evidence showing the specific reason for his flagging action,
the Board cannot conclude that the applicant met all qualifications for
promotion on his PED.  In accordance with pertinent regulations, an officer
selected for promotion must be medically qualified, have undergone a
favorable security screening, and must have met standards of the Army Body
Composition Program, and not be under suspension of favorable personnel
actions.  The SMS only says that his security clearance was downgraded in
2002.  The applicant has not submitted sufficient evidence to support that
he was qualified for promotion to captain prior to 25 May 2005.

4.  The applicant's contention that he had not been advised that he had
been considered for promotion and selected has also been noted.  However,
implicit in the Army's promotion system is the universally accepted and
frequently discussed principle that officers have a responsibility for
their own careers.  The general requirements and workings of the system are
widely known and specific details such as RCSB dates and promotion zones
are widely published in official, quasi-official and unofficial
publications, and in official communications.  The applicant knew, or
should have known, that he would be considered for promotion to captain by
an RCSB, and that he needed to insure, well in advance, that his record
would present his career and qualifications to that board in the best
possible light.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.





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                 |AR20060000061                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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