RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         5 April 2007
      DOCKET NUMBER:  AR20060014955


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Scott Faught                  |     |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 correction of his records to show that he was
promoted to the rank and pay grade of master sergeant (E-8) with an
effective date of July 2005.

2.  The applicant states that he was discriminated against and charged
twice for the same crime.

3.  The applicant provides in support of his application, an undated
statement explaining the events that he believes occurred regarding his
promotion; a copy of a memorandum recommending that he be retained in the
military occupational specialty, a copy of a memorandum suspending his
driving privileges; United States District Court Violation Notices; a copy
of his court charges and a notice regarding his court appearance; copies of
facsimile transmittal sheets notifying specific individuals of his need for
a court continuance; a copy of his General Officer Memorandum of Reprimand
(GOMOR); a memorandum from the Command Judge Advocate to the applicant's
commander regarding filing recommendations; his acknowledgement of the
GOMOR; a copy of the Record of Proceedings Under Article 15, Uniform Code
of Military Justice (UCMJ) dated 1 February 2005; memorandum completed by
members in his chain of command regarding the filing of the GOMOR; a copy
of a United States Postal Service Certified Mail Receipt; a copy of a
Developmental Counseling Form; a copy of a Suspension of Favorable Action
(flag) dated 27 June 2005; copies of memorandum addressed to him regarding
his removal from the promotion selection list; a letter from him to the
Standby Advisory Board; numerous electronic mail; a memorandum dated 11
September 2005, recognizing him as an outstanding Soldier; a copy of a
Noncommissioned Officer Evaluation Report; a copy of his court dismissal
order; a copy of a Personnel Action requesting the return of his promotion
packet; a copy of the promotion selection list; and a letter from the
United States Army Reserve Command addressed to his Representative in
Congress explaining the removal of his name from the promotion selection
list.

CONSIDERATION OF EVIDENCE:

1.  After completing 3 years, 11 months and 29 days of total active service
in the United States Navy, the applicant enlisted in the United States Army
Reserve (USAR) on 28 July 1989, for 1 year in the pay grade of E-4.  He
remains a member of the USAR through continuous reenlistment.


2.  The applicant was at Fort Bragg, North Carolina, on 9 November 2004 and
as a result of failing to maintain his lane, a traffic stop was initiated
and a field sobriety test was conducted which warranted further action.
The applicant was apprehended and transported to the provost marshal's
office where he was administered an intoxilyzer 5000 test which was
determined to be .17 grams per 210 liters of breath.  The applicant was
cited; advised of his mandatory court appearance; issued a suspension of
post driving privileges letter; and released to his unit.

3.  In December 2004, a GOMOR was prepared for the applicant for driving a
motor vehicle while he had a high blood-alcohol level.  He was informed
that as a Soldier in the Army, he was expected to set and observe high
standards of personal conduct and that by drinking and driving, he violated
the standards.  He was further informed that the GOMOR was an
administrative action and not punishment under the UCMJ.  The commanding
general indicated that he was considering filing the reprimand in the
applicant's Official Military Personnel File (OMPF) and that he had 5 days
from receipt of the reprimand to respond by separate memorandum.  The
applicant acknowledged receipt of the GOMOR on 1 February 2005 and he
elected not to submit a statement in his own behalf.

4.  On 1 February 2005, nonjudicial punishment (NJP) was imposed against
the applicant for failure to obey a lawful general order, to wit:
Mobilization Station Policy Letter, Consumption of Alcohol, dated 1 October
2004, by wrongfully consuming alcoholic beverages.  His punishment
consisted of restriction for 30 days and extra duty for 30 days.  The
applicant's commanding officer directed that the record of NJP be filed in
the restricted portion of his OMPF.  The applicant opted not to demand
trial by court-martial and not to submit an appeal.

5.  On 13 June 2005, the applicant was counseled regarding an ongoing
investigation into the circumstances surrounding the submission of a
promotion packet in his name to the 99th Senior Promotion Board after his
battalion commander and command sergeant major denied his recommendation
for promotion.  He was informed that his home leave may be delayed or
canceled until the issue was resolved.  The applicant signed the
Developmental Counseling Form and he indicated that his promotion packet
had been forwarded before any discussion took place regarding his promotion
packet.

6.  The applicant's records were flagged on 27 June 2005, with a
recommendation that his name be removed from the promotion selection list.



7.  In a memorandum dated 7 July 2005, the applicant was counseled
regarding his name being removed from the Senior Enlisted Selection List.
He was informed that his records had been flagged for the drinking and
driving incident in November 2004 and that he records would remain flagged
until his pending civil court appearance, which did not make him eligible
for promotion.  The applicant's commanding officer stated that the
applicant submitted his promotion packet with unauthorized signatures and
without a command sergeant major signature.  His commanding officer also
stated that he mailed his packet directly to the 99th Regional Readiness
Command (RRC) even though the bottom of the Promotion Packet Checklist
specifically states packets sent directly to the 99th RRC will not be
boarded and will be returned to the major subordinate command.  The
applicant was informed that his promotion packet was erroneously processed
without approved signatures; that he was recommended for promotion; and
that after further investigation into his situation, the 99th RRC G-1
directed that he be provided with a "Request Removal for the Promotion
Selection List" memorandum.

8.  On 7 July 2005, he was notified by his commanding officer that the
command had requested that his name be removed from the Senior Enlisted
Selection List and that the submission of another promotion packet be
withheld until the resolution of his mandated civilian court appearance.
In the notification, the applicant was informed of the flag that was
initiated on 27 June 2005 and that he had 15 days from the date of the
notification to respond to the proposed action taken.

9.  On 12 July 2005, the applicant forwarded a memorandum to the Commander,
38th Ordinance Group, Charleston, West Virginia, in response to the
proposed action to remove his name from the Senior Enlisted Promotion List.
 In the memorandum, he requested that the flag be removed from his records
and that his promotion to the pay grade of E-8 be reinstated.  He expressed
his views regarding his situation and his version of events.  He requested
a careful review of the facts that he submitted.  A review of the available
records fails to show the response to his request.

10.  On 3 November 2005, the applicant submitted a personal action
requesting the return of his 1 July 2005 promotion board packet.





11.  On 23 January 2006, in response to an inquiry from the applicant's
Representative in Congress, the Army Reserve Command G-1 clarified the
Army's position regarding his promotion.  The congressman was informed that
the applicant’s promotion packet was considered in May 2005; that he was
selected for promotion to master sergeant; and that promotion orders were
not published because his records were flagged due to his pending civil
court appearance for driving while intoxicated.  The congressman was
further informed that the applicant was appropriately punished and that he
was notified by his commanding officer of the recommendation to remove his
name from the promotion selection list.  He was told that on 17 November
2005, the 99th RRC Senior Enlisted Standby Advisory Board review the
recommendation to remove the applicant's name from the promotion selection
list and the board majority approved the request.  The congressman was
informed that Army regulatory guidance requires that the promotion
authority maintain promotion packets for a minimum of 2 years for all
Soldiers selected for promotion and that until the applicant's civil court
case was completed, the flag would remain in effect.

12.  Army Regulation 140-158, prescribes the policies and procedures
pertaining to the classification, promotion, reduction, and grade
restoration of enlisted soldiers in the Army Reserve.  Chapter 4-18(d) of
this regulation specifies that the Commander, Army Human Resources Command
(AHRC) will determine if material error existed in a soldier’s records when
the selection board reviewed the file.  It must be presumed that a material
error in the file may have contributed to non-selection.  An error is
material when, in the judgment of a mature individual familiar with
selection board proceedings, a reasonable chance exists that had the error
not existed, the Soldier may have been selected.   Paragraph 4-19 provides
for the removal from a recommended promotion list.  It states, in pertinent
part, that the AHRC will administratively delete from the recommended
promotion list the name of any Soldier erroneously considered and selected
for promotion.  If this occurs, the Solider concerned and the Soldier's
commander will be immediately notified.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army's enlisted promotions and reductions policy.  Paragraph
1-10 outlines when Soldiers are in a non-promotable status.  It states, in
pertinent part, that because AHRC-Alexandria, AHRC-St. Louis, and RRCs
administer promotions to grades sergeant first class through sergeant
major, commanders are responsible for notifying the appropriate command
when Soldiers in those grades whose names appear on a recommended list are
non-promotable.  When a Soldier has


been flagged under the provisions of AR 600-8-2, commanders must forward
documentation, to include the initial flag, explaining the reason for the
flagging action.  Soldiers are in a non-promotable status if a written
recommendation has been sent to the promotion authority to reclassify a
Soldier for inefficiency or disciplinary reasons.  If the recommendation is
approved, the Soldier will be removed from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The question in his case is whether or not the applicant was
discriminated against and/or erroneously removed from the promotion
selection list.  This Board can find no evidence that supports his
contentions.

2.  The applicant was in a non-promotable status at the time that he was
selected for promotion to the pay grade of E-8 as his records had been
flagged pending the outcome of his civil court case.

3.  The applicant's contentions have been noted.  However, the fact that he
was furnished a GOMOR and he had NJP imposed against him is not proof that
he was discriminated against or treated unfairly.  His commanding officer
had every right to impose NJP against him and the commanding general had
every right to furnish him a GOMOR as a result of his act of indiscipline.
In accordance with the applicable regulation, his name was properly removed
from the promotion selection list and he was immediately notified of the
action.

4.  In order to justify correction of a military record the applicant must
show 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.

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

__LS____  ___JR  __  ___SF __  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.




                                  _____ Linda Simmons_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014955                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000/PROMOTION                      |
|2.  320                 |131.1000/PASSOVER OR FAIL OF SEL REM    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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