IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080010402 


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, in effect, promotion to lieutenant colonel.

2.  The applicant states, in effect, that he should have been promoted to lieutenant colonel in 1995.  He had not been promoted because in the Active Guard Reserve (AGR) he needed to be promoted into a lieutenant colonel position.  When he was released from active duty back to the Individual Ready Reserve (IRR), he should have been promoted the following day, but for some reason this did not happen.  He was recently advised of the situation upon receipt of his retirement orders in May 2008.

3.  In support of his application, the applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his retirement orders.

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 military records show he was appointed in the U.S. Army Reserve (USAR) as a first lieutenant effective 10 June 1977 with prior commissioned service in the Army National Guard.  He was promoted to captain effective 10 August 1980.

3.  The applicant entered active duty in an AGR status effective 2 December 1985.  He was promoted to major effective 9 August 1987.

4.  The applicant was considered and selected for promotion to lieutenant colonel by the 1993 Reserve Components Selection Board (RCSB) that convened on 28 September and recessed on 15 October 1993.

5.  On 29 November 1993, the Total Army Personnel Command (currently known as the Army Human Resources Command (AHRC)), St. Louis, Missouri, advised the applicant of his selection for promotion to the grade of lieutenant colonel with a promotion eligibility date (PED) of 7 August 1994.  The memorandum also advised him that to be promoted effective that date, he must be assigned to a duty position authorized a grade equal to or higher than that for which he had been selected.  If on his PED he was not assigned to a position as described, he would not be promoted; however, he would be promoted effective the date that he was reassigned to a position which met the requirements.

6.  On 10 July 1995, the applicant was notified that a Department of the Army (DA) Active Duty Board conducted a comprehensive and impartial review of his entire military record.  The board selected him for involuntary release from active duty (REFRAD) by reason of misconduct with an honorable characterization of service.  The board further recommended that he be referred to the Commander, U.S. Army Reserve Personnel Center (ARPERCEN), upon release from active duty to be considered for elimination from the USAR.

7.  The applicant was honorably REFRAD as a major effective 3 August 1995 and transferred to the USAR Control Group (Reinforcement).

8.  The applicant was discharged from the USAR effective 13 December 1996.  These orders were subsequently voided on 6 May 1997.  He was issued orders transferring him to the Retired Reserve effective 6 May 1997.  He was placed on the Retired List effective 25 July 2008.

9.  In an advisory opinion, dated 22 October 2008, the Chief, Special Actions Branch, DA Promotions, AHRC, St. Louis, stated that the applicant was selected for promotion to lieutenant colonel by the 1993 RCSB with a PED of 7 August 1994.  Prior to his PED he received a referred officer evaluation report (OER) and was placed under suspension of favorable personnel action (flag).  Due to the flag, the applicant was not retained on active duty and was involuntarily released from active duty and transferred to the IRR on 3 August 1995.  There was no evidence found in the file that the flag was removed.  On 9 August 1995, the DA Active Duty Board referred the applicant to the ARPERCEN, St. Louis, to be considered for elimination from the USAR.  Due to the elimination action, the applicant was flagged as "do not promote."  He was discharged from a Reserve status on 13 December 1996; however, on 6 May 1997, the discharge was voided and orders were issued transferring him to the Retired Reserve effective 6 May 1997.  Since the applicant remained under the flag until he retired, he was not eligible for the promotion.  His ineligibility is in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions), section III, paragraph 1-14d, which states an officer under a flag is prohibited from being promoted.  Based on the fact the flag was never removed, he is not eligible for promotion; therefore, it was recommended his request be denied.

10.  The advisory opinion was forwarded to the applicant for acknowledgement and rebuttal on 26 November 2008.  In his rebuttal, dated 16 December 2008, the applicant stated that the same regulation provides guidance for how the flag should have been removed.  In effect, Army Regulation 600-8-22, section III, paragraph 1-12a3, nonjudicial punishment, provides for removal of the flag upon completion of punishment, to include term of suspension.  The applicant questioned at what point was his punishment complete.  Or does the punishment go on forever?  Was the punishment the referred OER when on the promotion list, or being involuntarily released from active duty and the subsequent reassignment to ARPERCEN?  Perhaps his promotion is not to be, he nevertheless appreciates the consideration.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), in effect at the time, prescribed the policies and procedures for the promotion of Reserve officers.  This regulation specified that completion of 7 years time is grade is required before promotion to lieutenant colonel.  Paragraph 4-21d of the regulation specified that AGR officers selected by a mandatory board would be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who was selected for promotion by a mandatory promotion board, but who was not assigned/attached to a higher graded position would be promoted on the date of assignment/attachment to a higher graded position or the day after release from an AGR status.

12.  Army Regulation 135-155 also specified that when an officer had been recommended for promotion to the next higher grade, the officer’s promotion was automatically delayed when the officer was 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 would be the day after the date a filing of determination was made and/or removed.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to promotion to lieutenant colonel.  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 his records, a flag was placed against him and he was REFRAD from active duty by reason of misconduct in 1995.  Due to the elimination action, he was flagged as "do not promote."  It was also recommended that upon his REFRAD he be considered for elimination from the USAR.  He was discharged from a Reserve status on 13 December 1996 and later issued orders transferring him to the Retired Reserve effective 6 May 1997.  Pending the outcome of his flagging action, he was not qualified for promotion to lieutenant colonel on his PED or at the time of his transfer to the IRR.  There is no evidence the flag was removed and since he remained under the flag until he retired, he was not eligible for the promotion to lieutenant colonel.

3.  Without evidence showing his flagging action was removed, the Board cannot conclude that the applicant met all qualifications for the promotion.  In accordance with pertinent regulations, an officer selected for promotion must not be under suspension of favorable personnel actions and was prohibited from promotion.  The applicant has not submitted sufficient evidence to support that he was qualified for promotion to lieutenant colonel in 1995 or that he is qualified for this promotion at this time.

4.  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

___x____  ____x___  ____x___  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.



      ___________x______________
                 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)                                         AR20080010402



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ABCMR Record of Proceedings (cont)                                         AR20080010402



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