IN THE CASE OF:	  

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20080015973 


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, that his date of rank be changed from 1 May 2007 to 28 November 2006.  

2.  The applicant states, in effect, that he was under a suspension of favorable personnel actions (FLAG) that was closed favorably on 28 November 2006, which made him eligible for promotion at that time.   

3.  The applicant provides a DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)) and date or rank change memorandum in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he served in the Army National Guard, in an enlisted status, between 18 July 2003 and 12 May 2005.

2.  On 13 May 2005, he was appointed a second lieutenant in the United States Army Reserve (USAR) and was ordered to active duty in that status for 3 years on 17 May 2005. 

3.  On 12 August 2006, a FLAG was placed on the applicant based on his failure of the Army Physical Fitness Test (APFT).  

4.  On 28 November 2006, the FLAG was removed with an indication that the case was closed favorably.  
5.  On 24 May 2007, the applicant's battalion commander submitted a recommendation that the applicant be promoted to 1LT effective 1 May 2007.  In his recommendation, the commander indicated the applicant's original promotion eligibility date was 28 November 2006, but he was retained in status from 
9 August 2006 through 30 April 2007.   

6.  The applicant's record contains Department of the Army (DA), United States Army Human Resources Command (AHRC) Order Number 156-004, dated 
5 June 2007, which authorized and announced the applicant's promotion to first lieutenant (1LT), effective and with a date of rank of 1 May 2007.  

7.  On 17 September 2008, the applicant's battalion commander requested the applicant's date of rank be changed to 28 November 2006, the date his FLAG was removed favorably, which made him eligible for promotion. 

8.  The applicant's record also contains DA AHRC Order Number 050-080, dated 19 February 2009, which authorized and announced the applicant's promotion to captain, effective and with a date of rank of 30 January 2009.  

9.  In connection with the processing of this case, an advisory opinion was obtained from the AHRC Deputy Chief, Promotions.  This promotion official states that the applicant's original promotion eligibility date was 28 November 2006.  However, at the time he was under a FLAG and was not recommended for promotion.  She further states that based on regulatory policy, denials are held in abeyance for 6 months.  Based on the memorandum from the promotion authority, the applicant was retained and approved for promotion on 1 May 2007, and as a result, the applicant was promoted to 1LT on 1 May 2007.  She further indicates that a FLAG action for APFT failure is not closed favorably; therefore, the memorandum from the applicant's commander, dated 17 September 2008, is incorrect.  Based on the facts of the case, this official recommends the applicant's request be denied.  

10.  On 14 January 2009, the applicant was provided a copy of the AHRC advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.  

11.  Army Regulation 600-8-29 (Officer Promotions) provides the Army's officer promotion policy.  Chapter 3 contains guidance on managing 1LT and Chief Warrant Officer Two (CW2) promotions.  Paragraph 3-5(3) states, in pertinent part, that denials for promotion to 1LT will be held in abeyance for 6 months and at the end of the 6 months, the promotion review authority must make a determination whether or not to promote.  

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)) provides the Army's policy for initiating, transferring, and removing FLAG actions.  Paragraph 1-13c states, in pertinent part, that a Soldier under a FLAG for failure to pass the APFT will have the FLAG removed under Code E (Other Final Action) on the day he/she passes the APFT.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 1LT date of rank should be changed to 
28 November 2006, the date his FLAG was removed, was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record shows the applicant was under a FLAG for failure to pass the APFT on his original PED, which was 28 November 2006, and his promotion was held in abeyance for 6 months in accordance with the applicable regulation.  It further shows that on 24 May 2007, his commander recommended his promotion 1LT, effective and with a date of rank of 1 May 2007, and that he was promoted accordingly.  As a result, it appears there was no error or injustice related to the effective date and date of rank of his promotion to 1LT, which was accomplished in accordance with the governing regulation.  

3.  Further, by regulation, a FLAG removal for an APFT failure should be coded 
E (Other Final Action) on the date the member passes the APFT and not 
C (Case Closed Favorably) as was erroneously done in the applicant's case.  As a result, there is no basis to grant the request of the applicant's current commander that the applicant's 1LT date of rank be changed based on the FLAG action being closed favorably.  

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

___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)                                         AR20080015973



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ABCMR Record of Proceedings (cont)                                         AR20080015973



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