RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070010297 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 effective date of promotion to 1st lieutenant (1LT)/O-2 from 1 February 2005 to 16 March 2004.

2.  The applicant states that an erroneous suspension of favorable actions (FLAG) was placed in his records, which was later removed due to no disciplinary action taken. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  U.S. Army Human Resources Command, St. Louis, Missouri, Memorandum, dated 10 February 2005, Promotion as a Reserve Commissioned Officer.

	b.  DA Form 268 [Report to Suspend Favorable Personnel Actions (FLAG)], dated 25 March 2004.

	c.  DA Form 78-R (Recommendation for Promotion to 1LT/CW2), dated 4 August 2004.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he initially enlisted in the Pennsylvania Army National Guard (PAARNG) on 13 March 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank he attained during his enlisted military service was specialist (SPC)/E-4  

3.  On 16 January 2001, he entered into an Army Senior Reserve Officer's Training Corps (ROTC) Non-scholarship Cadet Contract and attended the University of Pittsburgh, Pittsburgh, Pennsylvania.

4.  On 15 April 2002, he was discharged from the U.S. Army Reserve (USAR) as an ROTC Cadet for the purpose of accepting a commission in the U.S. Army, effective 9 May 2002, for a period of 3 years.

5.  On 10 May 2002, the applicant was appointed as a Reserve commissioned officer, in the grade of 2nd lieutenant (2LT/O-1) in the Field Artillery Corps.  He executed an Oath of Office on 10 May 2002.  He was subsequently assigned to 1st Battalion, 10th Field Artillery, 3rd Infantry Division, Fort Benning, Georgia, on 31 March 2002.  Additionally, he served in Iraq during the period 7 January 2003 through 16 July 2003.

6.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 January 2004 for on or about 1 May 2003, disobeying a lawful order and wrongfully soliciting a subordinate to violate a standing order; for on or about 2 May 2003, wrongfully making a false statement; and for on or about 4 May 2003, wrongfully making a false statement.  His punishment consisted of a forfeiture of $1,132.00 pay for two months and 60 days of restriction.  

7.  The applicant's records show that a DA Form 268 (Report to Suspend Favorable Personnel Actions), also known as a FLAG, was removed effective 25 March 2004.  The date the FLAG was initiated and the reason are not known.

8.  On 3 August 2004, Headquarters, United States Infantry Center, Fort Benning, Georgia, published Orders 216-2229, reassigning the applicant to the U.S. Army Transition Center for separation, effective 13 August 2004.  The Orders stated that "All Reserve of the Army and Army of United States appointments were terminated."  He was also assigned to the 324th Signal Battalion, East Point, Georgia. 

9.  On 4 August 2004, the applicant was recommended by his immediate commander for promotion to the grade of 1LT/O-2.  The approving official approved the recommendation on 4 August 2004.  However, the DA Form 78-R does not show that this form was reviewed for accuracy and/or forwarded to the applicant's Personnel Service Battalion.  Additionally, this form does not show the action taken by the Promotion Review Authority, Promotion Order Data, or the Orders Approving Authority.
10.  On 13 August 2004, the applicant was discharged under honorable conditions in the grade of 2LT/O-1 for miscellaneous/general reasons.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged with an Under Honorable Conditions (General) Discharge in accordance with paragraph 3-5 of Army Regulation 600-8-24, for miscellaneous/general reasons (unqualified resignation).  This form listed his grade/rank as 2LT/O-1.

11.  Upon separation from the Regular Army, the applicant was appointed in the USAR and was assigned to a Troop Program Unit (TPU), the 324th Signal Battalion, East Point, Georgia, effective 13 August 2004.

12.  On 10 February 2005, by memorandum, Human Resources Command, St. Louis, Missouri, notified the applicant of his promotion to 1LT in the USAR, effective 10 February 2005.  

13.  In an advisory opinion, dated 26 September 2007, obtained in the processing of this case, the Chief, Special Actions Branch, Office of Promotions and Reserve Components stated that the applicant did not meet the time in grade requirement for promotion to 1LT on 16 March 2004, the date the Suspension of Favorable Personnel Action (FLAG) was removed.  The earliest date of rank (DOR) he would have been eligible for was 31 March 2004, based on the commissioned date for ROTC graduates for May and June 2002.  the Chief further stated that if the applicant provides a copy of his initial appointment letter, it is recommended that his DOR be changed to 31 May 2004.  If his DOR is changed to 31 May 2004, he would be eligible for Special Board consideration under the 2006 criteria.

14.  The applicant was provided a copy of this advisory opinion on 24 October 2007, but he did not respond.

15.  Army Regulation 600-8-24 (Officer Transfer and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel.  It states in pertinent part that any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.  Normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the service obligation.  An officer must serve in the Armed Forces until completion of statutory military service obligation (MSO).  An officer has an 8–year MSO.  Time spent as a cadet at the United States Military Academy or as an ROTC cadet does not count towards fulfilling the MSO.  An officer who requests resignation before completing the 8–year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation. The act of taking the Reserve officer’s oath by an Active Army officer is sufficient to simultaneously terminate the officer’s RA status by operation of law. An officer who submits an unqualified resignation accepted by HRC will receive an Honorable discharge or a General discharge under honorable conditions.

16.  Army Regulation 600-8-29 (Officer Promotions) governs promotion of officers on the active duty list (ADL) from 2LT to 1LT.  Chapter 2 of this regulation states, in pertinent part, that the 2LT date of rank of Reserve Officer Training Corps (ROTC) cadets appointed as Regular Army 2LTs under 10 USC 2106 or 2107 in May or June of any year is the same as the U. S. Military Academy (USMA) main graduation date for that year.  Eligibility for promotion on the ADL from 2LT to 1LT is based on promotion eligibility date (PED) rather than 2LT date of rank.  For Other Than Regular Army (OTRA) ROTC 2LT appointed under 10 USC 2106, 2107, or 2107a in May or June of any year, the date of rank will be the same as the USMA graduation date for that year, if all the officer’s service as a 2LT prior to placement on the ADL was in an active status. 

17.  Chapter 3 of Army Regulation 600-8-29 describes the rules for computing promotion eligibility date to 1LT.  It states, in pertinent part, that the PED will be computed according to the rules given in table 3–1of this regulation.  The PED is the earlier of (1) eighteen months of active duty service as a 2LT on the ADL.  If the officer’s source of commission is the Reserve Officers’ Training Corps (ROTC), active duty service commences on the year, month, and day the officer enters active duty based on the computation of travel per the Joint Federal Travel Regulation (JFTR).  An exception to this will be an ROTC graduate who is appointed and enters active duty in the month of May or June of the same year.  His or her PED will be eighteen month from of the United State Military Academy (USMA) graduation of the year the officer entered active duty; or (2) the day before the second anniversary of the 2LT date of rank.

18.  Paragraph 1-19 of Army Regulation 600-8-29 addresses officers in a nonpromotable status.  It states, in pertinent part, that an officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders) when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her; under proceedings that may result in administrative elimination or discharge under other than honorable conditions (this includes resignation for the good of the service); under, or should be under, suspension of favorable personnel actions; or when the officer is pending an Article 15 or court-martial prior to the promotion effective date, the officer will be flagged and the flag will be closed out only by Headquarters, Department of the Army (HQDA)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his effective date for promotion to 1LT/O-1 should be adjusted from 1 February 2005 to 16 March 2004. 

2.  The Army’s utilizes an electronic system that is programmed to automatically calculate a 2LT’s promotion eligibility date (PED).  Determining the PED is based on the officer’s source of commission, the original date of appointment, the date entered on active duty, and the graduation date of the U.S. Military Academy (USMA), West Point, New York, for the year the officer was commissioned.

3.  Evidence of record shows the applicant was appointed as a Reserve commissioned officer in the grade of 2LT/O-1 through ROTC on 10 May 2002. He completed the Field Artillery Officer Basic Course on 30 October 2002.  The main USMA graduation date for the year 2002 was on 1 June 2002.  Therefore, by rule 4, Table 3-2, Army Regulation 600-8-29, the applicant’s PED to 1LT/O-2 is determined by adding 2 years to the USMA graduation date, or 31 May 2004.  This was the earliest date the applicant was eligible for promotion to 1LT/O-2.

4.  The Article 15 administered on 8 January 2004 shows that the applicant's misconduct occurred during the period 1 May 2003 through 4 May 2003.  Although the applicant's records do not contain a DA Form 268 to initiate a FLAG against him, he was under investigation and should have been under suspension of favorable personnel actions (that ultimately resulted in disciplinary action taken against him).  Either of these two reasons placed him in a nonpromotable status during the period on or around 4 May 2003 through 16 March 2004.  Although the FLAG was removed on 16 March 2004, the applicant had not met the 2-year requirement and was therefore not eligible for promotion on that date.

5.  Evidence of record shows that the applicant's recommending official and approving official did not recommend him for promotion to 1LT/O-3 until 4 August 2004.   This date suggests that the applicant should have been promoted to 1LT/O-2 on that date.  However, although the facts and circumstances surrounding his unqualified resignation are not available for review with this case, the applicant's Senior Rater stated in Part VII(c) (Comments on Performance and Potential) of the applicant's DA Form 67-9 (Officer Evaluation Report), dated 5 May 2004, for the period 6 May 2003 through 5 May 2004, that the "[Applicant] had already submitted his resignation and will leave the Army soon." 
6.  This entry on the applicant's OER suggests that by virtue of his already submitted resignation, the applicant was not qualified for promotion.  His unqualified resignation placed him in a nonpromotable status.  That explains why the DA Form 78-R was not acted upon and why the servicing Personnel Service Battalion did not publish a promotion order.

7.  In view of the foregoing, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __tmr___  __jcr___  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.




							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.