IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080017413


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  The applicant requests, in effect, that his June 2003 flagging action be rescinded and that an adjustment to his promotion effective date and date of rank for major be made.

2.  The applicant states, in effect, that he was denied promotion and pay in the rank and pay grade of Major/O-4 for approximately one year because of his unit's failure to remove a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)).

3.  The applicant adds that he was selected for promotion to major while he served in Iraq.  He states that two years earlier he had met the requirements for the removal the flagging action.

4.  In support of his application, the applicant provides a copy of DA Form 268, dated 12 June 2003; a copy of two DA Forms 5500-R (Body Fat Content Worksheet (Male)), dated 12 July 2003 and 2 October 2004; a DA Form 5500-R (Developmental Counseling Form), dated 3 October 2004; a copy of two DA Forms 67-9 (Officer Evaluation Report (OER)), dated 17 October 2004 and 17 October 2005 and a copy of Orders B-12-707942, US Army Human Resources Command, St. Louis, Missouri, dated 10 December 2007.

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 Georgia Army National Guard (ARNG) as a second lieutenant on 6 August 1988, with prior ARNG enlisted service.  He was promoted to captain effective 10 December 1997.

3.  The applicant submitted a copy of a DA Form 268, dated 12 June 2003, that shows a flagging action was initiated against him on 7 June 2003 when he was enrolled in the Army's Weight Control Program.

4.  The applicant also submitted a copy of a DA Form 5500-R, dated 12 July 2003, that shows he was not in compliance with Army height and weight standards.  The applicant was authorized a 26 percent body fat content and on this date he was found to have a 29.57 percent body fat content.

5.  The applicant's OER for the period 1 April 2004 through 17 October 2004 shows he was in compliance with the Army height and weight standards.  The applicant was 74 inches in height and weighed 271 pounds.

6.  The applicant's DA Form 5500-R, dated 2 October 2004, shows he was in compliance with Army height and weight standards.  On 3 October 2004, he was provided counseling and advised that he had successfully met the Army's height and weight standards of Army Regulation 600-9 (Army Weight Control Program). He was given a DA Form 4856 to document this counseling.

7.  On 23 October 2004, the applicant was ordered to active in support of Operation Iraqi Freedom and entered active duty as a member of the United States Army Reserve.

8.  The applicant was considered and not selected for promotion to major by the 2005 Reserve Components Selection Board (RCSB) that convened from 8 March and which adjourned on 25 March 2005.

9.  The applicant's OER for the period 18 October 2004 through 17 October 2005 shows he was in compliance with the Army height and weight standards.  The applicant was 75 inches in height and weighed 260 pounds.

10.  The applicant was considered and not selected for promotion to major by the 2006 RCSB that convened on 14 March 2006.  The board results were approved on 7 June and released on 29 June 2006.

11.  On 13 April 2006, the applicant was extended on active duty for the purpose of receiving or completing medical treatment.  He was honorably released from active duty on 10 May 2007 and was transferred to a Reserve unit.

12.  On 10 December 2007, the US Army Human Resources Command, St. Louis, prepared Orders Numbers B-12-707942, promoting the applicant to major with a promotion effective date and date of rank of 7 December 2007.

13.  The applicant's OER for the period 7 December 2007 through 31 May 2008 shows he was not in compliance with the Army's height and weight standards.  The applicant was 74 inches in height and weighed 283 pounds.

14.  In an advisory opinion, dated 23 March 2008, the Chief, Special Actions Branch, DA Promotions, Human Resources Command, St. Louis, Missouri, reiterated the applicant's request.  The Chief, Special Actions Branch, stated, in effect, that the applicant was considered and selected for promotion by the 2006 RCSB as a troop program unit officer.  The board convened on 14 March 2006, was approved on 7 June 2006, and was released on 26 June 2006.  The applicant's promotion was on hold due to a Skip Code 49 (overweight) on the database.  The applicant was on active duty from 19 October 2004 through 20 April 2006 and then was retained on active duty to voluntarily participate in the Reserve Components Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  The applicant states he underwent surgery and was under the care of a pain management specialist for injuries he sustained while he was deployed.  A DA Form 638 was initiated on 7 June 2003 for the applicant's enrollment in the Army's Weight Control Program by the 347th Regiment, Fort Gillem, Georgia.  A DA Form 5500, dated 12 July 2003, reflects that the applicant was not in compliance with the standards.  On 2 October 2004, the applicant was re-taped and determined to be in compliance with the standards.  The FLAG should have been closed favorably at that time based on the DA Form 5500.  If after 2 October 2004, the applicant was still flagged then either the flag should have been reinitiated and/or another DA Form 5500 should have been done.  The DA Form 5500, dated 4 November 2007, again shows the applicant was not in compliance with the standards for body fat.  The Chief, Special Actions Branch, neither made a recommendation for approval or disapproval of the applicant's request.

15.  The Chief, Special Actions Branch, in his advisory opinion stated that the applicant was subsequently promoted to major on 10 December 2007, with an effective date and date of rank of 7 December 2007.  That action was a result of Title 10, United States Code, Section 13411, stating that he could be promoted to the next higher grade effective 18 months from [after] the board's approval date (7June 2006).

16.  The advisory opinion was forwarded to the applicant for his acknowledgement and rebuttal on 1 April 2009.  In his rebuttal received on 17 March 2009, the applicant stated that the advisory opinion referenced that he was re-taped and determined to be in compliance with the standards in November 2004.  He was mobilized and deployed in theater operations in Iraq.  Approximately one year later he returned and underwent treatment for injuries sustained in the line of duty.  After being notified of why promotion orders had not been cut, he was informed about the DA Form 268 from 2003.  That notification occurred in June 2007 by the infantry branch manager at Human Resources Command, St. Louis.  From that point on, he made every effect to have the oversight corrected through his chain of command. He even gave them all the records to prove his case and they took no action.  His rater at the time, who wrote the final counseling as he came into compliance with the standards, was still listed as part of the unit and was never contacted as he had requested that rater be contacted.

17.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions), Section III, paragraph 1-14d, states that an officer under a flag is prohibited from being promoted.

18.  Army Regulation 135-155 (Reserve Promotions), prescribes the policies and procedures for promotion of Reserve officers.  The regulation specifies that when an officer has been recommended for promotion to the next higher grade, the officer’s promotion is automatically delayed when the officer is 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 non-compliance with the height and weight standards will be the day the officer complies with the standards.  The date of rank and effective date of promotion after any other adverse administrative action will be the day after the date a filing of determination is made.

19.  Paragraph 4-11a (3-5) of the regulation specifies that the officer must be medically qualified, have undergone a favorable security screening, and must meet standards of the Army Weight Control Program.  The military personnel records jacket will be screened to ensure that derogatory or unfavorable suitability information is not contained therein for promotion purposes.  If the results of this screening are favorable, final promotion action may proceed.  If the screening reveals derogatory or unsuitable information, the promotion authority will cause a National Agency Check (NAC) to be conducted.  Final action on the promotion will be withheld until the results of the NAC are received. 

20.  Army Regulation 600-9 (The Army Weight Control Program), in effect at the time, specified that personnel who exceed the screening table weight at Table 1 and the body fat standard for their current age group in paragraph 20c would not be allowed to reenlist or extend their reenlistment.  When the flag was imposed [12 July 2003], the applicant was 46 years of age, had a maximum allowable body weight of 208 pounds.  Paragraph 20c specified a maximum allowable body fat standard of 26 percent.  On 2 October 2004, the applicant was 48 years of age, had a maximum allowable body weight of 214 pounds and paragraph 20c specified a maximum allowable body fat standard of 26 percent.

21.  Title 10, United States Code, Section 14311(c), specifies that an officer shall be retained on a list of officers found qualified for promotion during a delay.  In effect, if the officer is determined unqualified for promotion for any part of the delay, the effective date for pay and allowances and date of rank may be appropriately adjusted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the 2003 flagging action should be rescinded has been noted.  However, the flag was initiated for his failure to meet the standards of the Army's Weight Control Program in June 2003.  He was found in compliance with the height and weight standards on 2 October 2004; however, the flag was not removed.  It appears a conscious decision was made not to remove the flag at the time and it remained in effect.  Based on the foregoing, the applicant has not provided clear and convincing evidence that the document was untrue or unjust, in whole, or in part, to support his request that it be rescinded.

2.  The applicant's contention that he should have been promoted to major earlier has also been noted.  On 2 October 2004, he was determined in compliance with the height and weight standards.  On 23 October 2004, he entered on active duty in support of Operation Iraqi Freedom.  He was selected for promotion to major by the 2006 Reserve Components Selection Board that was approved on 7 June 2006.  He was promoted to major effective 7 December 2007, after his release from active duty.

3.  There is no evidence his flagging action was favorably closed while he was mobilized.  The applicant has not submitted sufficient evidence to show that he was qualified for promotion on 7 June 2006 or prior to 7 December 2007.  The evidence also shows he was not in compliance with the height and weight standards in December 2007.  However, it appears the applicant was promoted to major in accordance with Title 10, United States Code, Section 14311, which provided for an officer's promotion 18 months after the approval date of the results of a Reserve Components Selection Board.

4.  Without evidence showing the flagging action was removed, it cannot be concluded that the applicant met all qualifications for the promotion earlier than 7 December 2007.  In accordance with pertinent regulations, an officer selected for promotion must meet all promotion requirements and not be under suspension of favorable personnel actions. 

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

____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)                                         AR20080019997



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