IN THE CASE OF:	

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20080018177 


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 date of rank (DOR) for colonel (O-6) be adjusted to 15 July 2007 in accordance with Army Regulation 600-8-29 (Officer Promotions), paragraphs 1-21 and 8-10.

2.  The applicant states that on 11 January 2007, he was selected by the Fiscal Year (FY) 2006 Colonel, Dental Corps Selection Board for promotion to colonel with a sequence number of 28.  He states that following the post board screen process, he was referred to a promotion review board and the recommendation was to remove his name from the promotion list.  The recommendation was approved by the Secretary of the Army.  He states that on 10 January 2008, he was selected by the FY 2007 Colonel, Dental Corps Selection Board for promotion to colonel.  Following the post board screening process, he was referred to a promotion review board and the recommendation by the Secretary of the Army was for his name to be retained on the promotion list.  

3.  The applicant provides in support of his application, a copies of the United States Army Human Resources Command (AHRC) FY06 and FY07 Colonel, Dental Corps Selection Board Results; one page of his promotion orders (undated); a copy of a self authored memorandum, dated 16 September 2008, addressed to the Secretary of the Army requesting an adjustment of his date of rank; a copy of a memorandum that the AHRC Deputy Chief, Promotions Branch, provided the applicant, dated 15 May 2007; a copy of a memorandum from the AHRC Chief, Promotions, addressed to the applicant, dated 15 September 2008; and electronic mail between the applicant and officials at AHRC.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted an appointment in the Reserve Officer Training Corp on 16 May 1986, in the rank of second lieutenant.  He was promoted to the rank of first lieutenant on 15 May 1989.  On 18 June 1990, he accepted an appointment as a Reserve commissioned officer in the rank of first lieutenant.  

2.  On 19 June 1990, the applicant was ordered to active duty effective 29 August 1990, in the rank of first lieutenant.  He was promoted to the rank of captain on 15 July 1990; he was promoted to the rank of major effective 15 July 1996; and he was promoted to the rank of lieutenant colonel on 15 July 2002.

3.  On 15 May 2007, the applicant was notified by the AHRC Deputy Chief, Promotions Branch that, as he was already aware, a Department of the Army (DA) Colonel, Army Promotion Selection Board, which recessed on 4 August 2006 recommended him for promotion.  He was informed that his case file along with his official photograph and his Officer Record Brief were referred to a Promotion Review Board for reconsideration of his promotion selection due to the post board screening process.  He was told that his case was forwarded to the Secretary of the Army for a decision and that the decision was to remove him from the promotion selection list.  The basis for the decision was a Commander's Report of Disciplinary or Administrative Action, dated 23 January 1994, for driving while impaired and causing a traffic accident; and a Commander's Report of Disciplinary or Administrative Action, dated 1 May 1996, for domestic violence. 

4.  On 8 July 2008, the applicant's case was referred to the Promotion Review Board during the FY07 Colonel Dental Corps Selection Board post board screening process.  On 15 September 2008, he was notified that under the provision of Army Regulation 600-8-29, paragraph 8-2, his records were referred to a DA Promotion Review Board for reconsideration of his promotion status.  He was told that the Secretary of the Army had decided to retain him on the promotion list.  The list was approved on 12 September 2008.

5.  Accordingly, the applicant was promoted to the rank of colonel with a DOR of 1 October 2008.

6.  The applicant submits in support of his application a self authored memorandum addressed to the Secretary of the Army, dated 16 September 2008, in which he requests that he be granted the same DOR and position on the active duty list from the FY07 Colonel, Dental Corps Selection Results with a sequence number of 28.  In his memorandum he states that his proposed DOR would be 15 July 2007.

7.  The applicant also submits a copy of FY07 Colonel, Dental Corps, Selection Board Results from the AHRC website that shows his name and sequence number as 11; and a copy of FY06 Colonel, Dental Corps, Selection Board Results from the AHRC website that shows his name and sequence number as 28.

8.  During the processing of this case, an advisory opinion, dated 10 February 2009, was obtained from the AHRC, Chief, Promotions who stated that in accordance with Title 10, U.S. Code section 29(c) (1) if the applicant is recommended for promotion by the next selection board convened for his grade and competitive category and he was promoted, the Secretary of the Military Department concerned may, upon such promotion, grant him the same DOR, the same effective date for pay and allowances of the grade to which promoted and the same position on the active duty list as he would have had if his name not been removed.  The AHRC, Chief, Promotions states that while the Secretary may grant a retroactive DOR, it is not automatic and must be treated on a case-by-case basis.  The AHRC, Chief, Promotions recommends denial of the applicant's request based on the cause for his removal. 

9.  On 20 February 2009, the applicant submitted a rebuttal to the advisory opinion stating that he understands that having a retroactive DOR to FY06 is not automatic and therefore, he elected to submit an appeal to the Army Review Boards Agency.  He states that he disagrees with the recommendation from the promotion branch and he goes on to explain the events that occurred over the past years while he was being considered for promotion to colonel.  He states that he is grateful to the Army for recognizing his service by keeping him on the promotion list and that the derogatory events reflected on his record occurred 
14-15 years ago when he was having problems with both his stepson and his wife.  He states that he is still married to the same person; and that his stepson has recently completed an 8-year enlistment with the United States Navy and is now in the Naval Reserve.  

10.  Additionally, the applicant states that he cannot take back the past and that he has received punishment, training and counseling for those events.  He states that he has not demonstrated an established pattern of behavior since that time. The person he is today is not a reflection of what he did in the past.  He concludes by stating that he believes he is well qualified and has sufficient potential to serve the Army in the rank of colonel and he requests that consideration be given to allow him to have the same DOR and sequence number as he had when he was selected by the FY06 Colonel, Dental Corps Selection Board. 


11.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-29 provides, in pertinent part, that when a delay in promotion is ended, the promotion approval authority will determine if the officer was in fact unqualified (as opposed to ineligible, as described in paragraph 1-10) for promotion during all or part of the delay and will adjust the DOR and effective date of promotion accordingly.  For officers on Headquarters Department of the Army centralized promotion lists, the promotion approval authority is the Commanding General, Army Human Resources Command or their designee.

12.  Army Regulation 600-8-29, (Officer Promotions) paragraph 8-10 provides that an officer whose name is removed from a promotion list continues to be eligible for consideration for promotion under 10 USC 629(c) and 579(c).  The next regular selection board convened to consider officers for promotion to that grade and competitive category will consider the officer (if otherwise eligible), provided this removal action does not constitute the officer's second nonselection for separation purposes.  If the next board does not recommend promotion, this will constitute the officer's second nonselection.  If the next board recommends promotion, the officer may petition the Secretary of the Army to be granted the same DOR and position on the Active Duty List the officer would have had if the officer's name had not been removed from the promotion list. 

13.  Paragraph 2-9 of Army Regulation 15-185 (Army Board for Correction of Military Records) states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to colonel should be adjusted to 15 July 2007, in accordance with Army Regulation 600-8-29, paragraphs 1-21 and 8-10.

2.  The applicant's contentions have been considered.  However, he has not proven an error or injustice exists by a preponderance of evidence in accordance with the applicable regulation.  In fact, he acknowledges his past behavior and he states that he received punishment, training and counseling as a result of his behavior.  He acknowledges that the events that led to the removal of his name from the promotion did in fact occur.

3.  The applicant's name was removed from the promotion list in 2007 and he was selected for promotion to colonel in 2008.  His prior actions resulted in a 
1-year delay in his promotion to the rank of colonel and based on all of the evidence presented, it appears that what the Army did in his case was correct and there is no basis for adjusting his DOR.  
4.  In order to justify correction of a military record the applicant must show 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.

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.




      _______ _ 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)                                         AR20080018177



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ABCMR Record of Proceedings (cont)                                         AR20080018177



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