IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008684 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his promotion to the rank and pay grade of staff sergeant (SSG) E-6 be reinstated and that all paperwork related to the removal from the promotion list be removed from his records.

2.  The applicant states, in effect, that his promotion orders had already been published and signed in February 2006; however, his unit erroneously submitted a flagging action after the effective date and subsequently had his name removed from the promotion list.  He goes on to state that the action was illegal and should be nullified. 

3.  The applicant provides a copy of his promotion order, a copy of a memorandum of reprimand, a copy of his Enlisted Record Brief, a memorandum instructing the Personnel Service Battalion to correct his promotion back to the rank of sergeant (SGT), a copy of an email from the applicant’s command sergeant major, a memorandum from the commanding general (CG) directing the filing of the memorandum of reprimand in the performance portion of his Official Military Personnel File (OMPF), and a copy of the applicant’s statement of       non-concurrence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, though somewhat incomplete, show that he served on active duty from 8 July 1983 to 7 July 1987.  He served in the New Mexico Army National Guard from 6 August 1997 to 10 September 1998 and in the 
United States Army Reserve (USAR) from 11 September 1998 until he again enlisted in the Regular Army on 1 October 2002 for a period of 3 years and assignment to Fort Carson, Colorado.    

2.  He was assigned to Fort Carson for duty as an intelligence analyst and subsequently became a Criminal Investigation Division (CID) special agent while serving in the pay grade of E-5.  He was transferred to Korea on 4 October 2005.  
3.  On 22 February 2006, orders were published promoting the applicant to the pay grade of E-6 effective 1 March 2006.  The orders specified that the promotion is not valid and will be revoked if he is not in a promotable status on the effective date of promotion.

4.  On 24 February 2006, a suspension of favorable personnel actions (FLAG) was imposed against the applicant.  

5.  On 10 April 2006, the applicant received a Memorandum of Reprimand (MOR) from his battalion commander dated 7 April 2006.

6.  On 2 May 2006, the battalion commander dispatched a memorandum to the Personnel Services Battalion (PSB) informing the PSB, in effect, that the applicant was flagged effective 24 February 2006; however, he was promoted to the pay grade of E-6 erroneously and the information needed to be corrected by restoring him to his previous pay grade of E-5.

7.  On 25 May 2006, the commanding general directed that the MOR be filed in the performance section of his OMPF.

8.  On 22 January 2007, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14-12b, due to patterns of misconduct.  He cited as the basis for his recommendation that the applicant had knowingly made a false statement when applying to become a CID agent, that he had an improper relationship with a female junior enlisted Soldier, that he wrongfully used a government-owned vehicle for personal purposes, that he failed to properly respond to a reported sexual assault, and he failed to obtain a pass for his absence from duty.

9.  On 29 January 2007, after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration of his case by an administrative separation board contingent on his receiving no less than a general discharge.

10.  The appropriate authority (a lieutenant general) accepted his conditional waiver and approved the request for discharge and directed that the applicant be furnished a General Discharge Certificate.

11.  Accordingly, the applicant was discharged under honorable conditions on 28 February 2007, under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  He was discharged in the pay grade of E-5.  Notably absent from his official records is his last DD Form 214.

12.  Army Regulation (AR) 600-8-19, Enlisted Promotions and Reductions, provides that suspension of favorable personnel actions (FLAG) will be initiated on Soldiers who are not in good standing as prescribed in AR 600-8-2.  Field commander are responsible for initiating FLAGs.  Failure to initiate a suspension of favorable personnel actions, however, does not invalidate referral of the action or subsequent actions relating to a recommendation of removal.  In other words, a person will not be promoted if they were flagged or should have been flagged on the effective date of promotion.  It further provides, that when a delay of promotion has occurred because of a FLAG and the final report is closed “Disciplinary Action Taken,” and the Soldier would have been promoted while under suspension of favorable personnel actions, provided otherwise eligible, he or she will be promoted with a date of rank and effective date on the date following the date the FLAG was removed unless action is taken to remove the Soldier from the recommended list.  Soldiers will be immediately removed from the promotion standing list if undergoing proceedings that may result in discharge (other than medical discharge).      
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unjustly denied his promotion to the pay grade of E-6 has been noted and appears to lack merit.  The evidence of record and the evidence submitted by the applicant fail to show the actual flagging actions submitted by the commander.  The evidence does establish that he was flagged on 24 February 2006.  

2.  The applicant has also failed to show through the evidence of record and the evidence submitted with his application that he was in fact removed from the promotion list prior to his being discharged and that he was fully qualified to be promoted in accordance with the applicable regulations.  However, removal action was automatic at the time of his discharge and required no formal paperwork to do so.
  

3.  Therefore, in the absence of evidence to show that his FLAG was lifted and that he was fully qualified to be promoted to the pay grade of E-6 prior to discharge proceedings being initiated, it must be presumed that what the Army did at the time was accomplished in accordance with applicable regulations with no violations of any of the applicant’s rights.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008684



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ABCMR Record of Proceedings (cont)                                         AR20080008684



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