IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20090009690 


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 honorable discharge be declared improper and inequitable; that he be restored to active duty in the rank of major (MAJ); that he be selected to attend the Army Command and General Staff Officer Course (CGSOC); and that he be considered for promotion to lieutenant colonel (LTC).

2.  The applicant states, in effect, he was non-selected for promotion to LTC twice.  At the time, he had a flagging action against him for misconduct and he was being processed for elimination.  He requested a hearing before a board of officers which cleared him of all charges and recommended that he be retained. However, it took 2 years to lift the flag and he was unable to enroll in the Army CGSOC in time to complete 50 percent of the course required for promotion to LTC.  He was essentially denied promotion because he failed to complete his military education requirement and he was ultimately separated as a two-time non-select for promotion.

3.  The applicant provides a voluminous copy of various military personnel documents, including his Officer Evaluation Reports; orders; memoranda, letters, record of proceedings, sworn statements, email exchanges, certificates of training and/or achievement, training schedules, policy letters, and various other documents, dated on various dates throughout his military career. 


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 records show he was appointed as a Reserve commissioned officer in the Military Police (MP) Corps in the rank of second lieutenant (2LT).  He executed an oath of office on 31 July 1981.  He was released from the USAR Control Group (Annual Training) and was subsequently appointed in the Puerto Rico Army National Guard and executed an oath of office on 1 February 1982.  

3.  The applicant’s records also show he performed a period of active duty for training and was promoted to first lieutenant (1LT) on 30 July 1984.  However, on 1 February 1985, his Federal Recognition was withdrawn and he was transferred to the USAR Control Group.  He completed an MP branch qualification course and was promoted to captain (CPT) on 29 July 1988.

4.  On 29 March 1990, the applicant received a General Officer letter of reprimand for conduct unbecoming of an officer by engaging in an intimate relationship and an adulterous affair with a civilian employee and by deceiving his superiors when he was questioned about the nature of his relationship.  

5.  On 2 June 1995 and 10 June 1996, the U.S. Army Human Resources Command (HRC) notified the applicant that he was considered for promotion to MAJ by the 1995 and 1996 Reserve Components Selection Boards (RCSB), but he was not selected.  However, he was considered by an Army Standby Advisory Board and was selected for promotion to MAJ on 28 July 1996. 

6.  On 28 February 1996, the applicant completed Phase I of the Combined Arms and Services Staff School (CAS3) and on 9 August 2000, he satisfactorily completed the Reserve Component Staff Process Course (SPC) of CAS3.  The SPC was Phase II of the Captain’s Career Course.

7.  On 8 September 2001, the applicant was reassigned to the Strategic Mobility Division, U.S. Army Fort Dix, Fort Dix, NJ and performed duties as an operations officer at the Emergency Operations Center. 

8.  On 6 February 2002, an investigating officer (IO) was appointed to look into allegations that while on duty at Fort Dix, the applicant engaged in a sexual relationship, fraternization with an enlisted member, viewing of pornographic websites on government computers, being absent without leave (AWOL), and for failing to attend an officer professional development (OPD) course when he left early on pass.   

9.  On 19 February 2002, the IO completed his investigation and determined that there was sufficient evidence against the applicant to warrant action in the form of a court-martial.  The IO found the applicant did not have a valid leave form for 18-19 December 2002 while being outside of Fort Dix.  He failed to attend the OPD course and he misused government computers by visiting inappropriate websites.  Furthermore, the IO found insufficient evidence with respect to the applicant’s failure to attend physical training.  He also recommended the junior enlisted Soldier with whom the applicant was alleged to have fraternized be given immunity from prosecution so as to determine the appropriateness or inappropriateness of the relationship with the junior Soldier and what actions, if any, should be taken.  After a legal review by the Fort Dix Staff Judge Advocate, the appointing authority approved the IO’s findings and recommendations on 19 February 2002.

10.  On 16 April 2002, by memorandum, HRC-St. Louis, MO, notified the applicant that he was being considered for involuntary separation under the provisions of paragraphs 2-12f (personal misconduct) and 2-12o (conduct unbecoming of an officer) of Army Regulation 135-175 (Separation of Officers).  He was also notified that he could request a resignation in lieu of elimination, request a hearing by a board of officers, or request a transfer to the Retired Reserve, if eligible.  He was also notified that a suspension of favorable personnel actions (flag) had been initiated against him, effective 26 March 2002.

11.  On 14 May 2002, the applicant requested a hearing before a board of officers.

12.  On 8 December 2002, a separation board convened at Fort Lawton, WA, and found the applicant did not knowingly commit fraternization and that with respect to the issue of AWOL, he was on an approved leave of absence (LOA) in accordance with practices in effect at Fort Dix at the time.  The separation board further recommended the applicant be retained in the service.  The Report of Board Proceedings was forwarded through the SJA and chain of command to HRC-St. Louis for review and approval/disapproval.

13.  On 4 February 2003, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered for promotion to LTC by the 2002 RCSB, but he was not selected.  The memorandum alerted the applicant of the mandatory education requirements for promotion as specified in Army Regulation 135-155 (Promotions of Commissioned Officers and Warrant Officers Other than General Officers).  

14.  On 19 February 2004, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered for promotion to LTC by the 2003 RCSB, but he was not selected.  The memorandum also notified the applicant that if he remained eligible, he would be considered for promotion by the next mandatory selection board for his grade and that selection boards do not record the reason for the selection or non-selection of individual officers. 

15.  On 6 April 2004, by letter, the applicant was notified that HRC-St. Louis, MO reviewed the Report of Board Proceedings and approved the findings and recommendations of the board.

16.  On 7 April 2004, the flag imposed against the applicant on 26 March 2002 was lifted and his case was closed favorably. 

17.  On 1 August 2004, the applicant was honorably discharged from the USAR in accordance with Army Regulation 135-175.

18.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the ARNG and USAR, except for officers serving on active duty or active duty training exceeding 90 days.  Paragraph 2-12 of the regulation states, in pertinent part, that while not all-inclusive, the existence of one of the following or similar conditions, unless successfully rebutted, authorizes 
involuntary separation of an officer due to moral or professional dereliction:  conduct unbecoming of an officer and acts of personal misconduct.   Paragraph 2-16 states, in pertinent part, that a recommendation for involuntary separation may be originated by a duly constituted selection board, operating under official letter of instruction, in which the board may recommend individuals who should be involuntarily separated.  When a board recommends retaining an officer in a military status, Headquarters, Department of the Army (HQDA) will approve the recommendation, close the case, notify the officer, and, if appropriate, the headquarters that recommended the involuntary separation.

19.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 1-35 contains guidance on selection board recommendations.  It states that promotion selection boards will base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the memorandum of instruction; and keep confidential their reasons for recommending or not recommending any officer considered.  Furthermore, this regulation specifies that promotion boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.  Promotion to LTC requires a minimum of 4 years and a maximum of 7 years as a MAJ.  It also requires completion of 50 percent of CGSOC or an equivalent course.

20.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Paragraph 7-4b (Nonselection for promotion after second consideration-removal rule 4) states, in pertinent part, that officers who are twice not selected for promotion to LTC will be removed from an active Reserve status.  As an exception, the regulation provides for officers having 18 or 19 years of qualifying Federal service for retired pay to be retained to complete 20 years of qualifying Federal service for retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his honorable discharge as an officer of the USAR was improper and inequitable; reinstatement of his commission as a MAJ; and to be allowed enrollment in the CGSOC in order to meet the educational requirements for promotion to LTC.

2.  The applicant’s argument appears to revolve around what he considers to have been the inordinate amount of time it took HRC-St. Louis to remove the flag following the recommendation of the board of officers.  The board of officers met in December 2002 and recommended the applicant be retained.  HRC-St. Louis completed its review of the recommendation and lifted the flag on 7 April 2004, some 13 months later.  

3.  The applicant was promoted to MAJ in July 1996; in February 2002, he was investigated for misconduct and on 26 March 2002 a flagging action was initiated against him.  Six years passed between the time he was promoted to MAJ and the imposition of the flag.  This was more than sufficient time to complete 50 

percent of CGSOC, yet the applicant chooses to focus on the 13 months that HRC-St. Louis took to review and accept the board of officers’ recommendation and lift the flag as the sole reason for his inability to complete half of CGSOC.

4.  The applicant was first considered for promotion to LTC by the Fiscal Year (FY) 2002 LTC RCSB which convened in September 2002.  Clearly, the flag imposed against him on 26 March 2002 had no effect on his inability to complete his military educational requirement for the FY 2002 promotion board.  And while it is true the flag prevented him from enrolling in and completing 50 percent of CGSOC between September 2002 and the convening of the FY 2003 LTC RCSB, the fact still remains he did nothing to meet this known requirement for the 6 years between his promotion to MAJ and the start of his misconduct investigation.

5.  When HRC-St Louis notified the applicant of his non-selection to LTC, there was a requirement to alert him to the need for completing the required military education.  However, the letter did not state that the military education was the reason for his non-selection.  The regulation specifies that promotion boards are not required to divulge the proceedings or the reason(s) for non-selection.  His non-selection could have been a result of several factors.  His non-selection did not mean he was not qualified for promotion, it simply means the promotion selection board found a number of better qualified officers it could promote in the zone of consideration.  This Board is not privy to the reason(s) for his non-selection.

6.  With respect to the applicant’s discharge, the evidence of record shows that he was not selected for promotion to LTC twice.  By law and regulation, officers who are not selected for promotion to LTC twice are either removed from an active Reserve status or transferred to the Retired Reserve if otherwise eligible.  The applicant’s discharge appears to be proper and equitable with no indication of a procedural error.

7.  Since it appears the applicant’s discharge was proper and equitable, there is no reason to restore him to active duty as a MAJ or any other rank and his request to be enrolled in CGSOC is moot.

8.  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 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)                                         AR20090009690



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ABCMR Record of Proceedings (cont)                                         AR20090009690



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