IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080018886 


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 the Secretary of the Army grant him an effective date of rank (DOR) of 1 June 2004, under the provisions of Army Regulation    600-8-29, paragraph 8-10b.

2.  The applicant states that he was administratively removed from the CW3 promotion selection list on 8 September 2004.  He goes on to state that he appealed the administrative action and it was favorably closed on 22 September 2005 and was removed from his Official Military Personnel File (OMPF) on 30 January 2006.  He further states that he was promoted to the rank of CW3 at the next regularly scheduled selection board convened to consider officer for promotion to the rank of Chief Warrant Officer Three (CW3) and was awarded a new DOR of 1 June 2006.  He continues by stating that his original selection and promotion to the rank of CW3 by the Fiscal Year 2004 selection board granted him an original DOR of 1 June 2004.  He also states that due to operational tempo he has not requested the action sooner and is aware that had he done so, and the Secretary of the Army approved his request, he would have been eligible for consideration for promotion to the rank of chief warrant officer four (CW4) by the Fiscal Year (FY) 2008 selection board.

3.  The applicant provides a memorandum addressed to The Secretary of the Army with six enclosures that are listed on his application. 




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in the pay grade of E-4 on 12 April 1996 for a period of 3 years under the warrant officer flight training (WOFT) program.  He completed his training and was appointed as a warrant officer one (WO1) on 6 June 1996.  He was promoted to the rank of chief warrant officer two on 6 June 1998.

2.  On 5 January 2004, while stationed in Hawaii, the applicant received a general officer memorandum of reprimand (GOMOR) for past incident of inappropriate sexual conduct with his daughter.

3.  On 27 January 2004, the applicant submitted a response to the GOMOR in which he accepted responsibility for his actions and provided an explanation surrounding the events with his daughter.  He requested that the commanding general direct that the GOMOR be filed locally.  The battalion and brigade commanders recommended that the GOMOR be filed in the applicant's OMPF.

4.  Meanwhile, orders were published by the Human Resources Command in Alexandria, Virginia (HRC-ALEX) that promoted the applicant to the rank of chief warrant officer three (CW3) effective 1 June 2004.  Those orders were subsequently revoked on 8 September 2004.

5.  On 21 August 2004, the commanding general, who was now deployed to Afghanistan, directed that the GOMOR be filed in the applicant's OMPF. 

6.  On 16 May 2005, a board of officers convened at the Department of the Army, Secretariat for Selection Boards, in Alexandria, Virginia to consider the case of the applicant who had been referred for consideration as to whether he should be removed from the promotion list.  A majority of the members recommended that he be removed from the promotion list and the Secretary of the Army approved his removal on 17 November 2005.

7.  Meanwhile, the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) on 22 September 2005, petitioning that board to transfer the GOMOR from the performance portion of his OMPF to the restricted portion of his OMPF.  On 30 January 2006, the DASEB voted to approve his request based on intent served.  Accordingly, the GOMOR was transferred to the restricted portion of his OMPF.

8.  On 17 May 2006, orders were published by the HRC-Alex that announced the applicant's promotion to the rank of CW3 effective 1 June 2006.  The applicant is currently serving in the rank of a Regular Army CW3.
9.  Army Regulation 600-8-29 prescribes the policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list (ADL).  It provides, in pertinent part, in paragraph 8-10, that an officer whose name is removed from a promotion list continues to be eligible for consideration for promotion.  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 board recommends promotion, the officer may petition the Secretary of the Army to be granted the same DOR and position on the ADL the officer would have had if the officer's name had not been removed from the promotion list. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR should be restored to 1 June 2004 because he appealed the administrative action that served as the basis to remove him from the 2004 promotion selection list and his case was favorably closed on 22 September 2005 and was removed from his OMPF on 30 January 2006, has been noted and found to lack merit. 

2.  The DASEB granted his petition to transfer the GOMOR to the restricted portion of his OMPF based on intent served and there is no evidence in the available records to show otherwise.

3.  Notwithstanding the DASEB's decision to transfer the GOMOR to the restricted portion of the applicant's OMPF after such a short period of time had elapsed, the fact remains that the applicant admitted to the misconduct for which the GOMOR was issued and he was properly removed from the promotion selection list in accordance with laws and regulations in effect at the time.

4.  It is also noted that the GOMOR still remains a matter of record, although not necessarily for review by promotion selection boards, and the applicant has failed to show through the evidence of record and the evidence submitted with his application, sufficient evidence, reason or argument to justify restoring his DOR to 1 June 2004.

5.  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)                                         AR20080018886





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ABCMR Record of Proceedings (cont)                                         AR20080018886



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