BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090011478 


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 defers his request to counsel.

2.  The applicant makes no statement.  

3.  The applicant provides no additional documents in support of his application.
	
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records to show that the applicant was retired in the rank of colonel, pay grade O-6.  Counsel further requests that the applicant be paid back pay and allowances based on such retirement.

2.  Counsel states the applicant was issued an erroneous DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), that changed his retired rank from colonel, pay grade O-6 to lieutenant colonel, pay grade O-5.  He contends that there was no statutory or regulatory authority to issue this DD Form 215.  Counsel further contends that the applicant was retired due to physical disability and was entitled to retire in his promotable rank and pay grade. 

3.  Counsel provides, in support of the applicant's application, the following:
	
   a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 25 April  2008;
	
	b. DD Form 215 issued on 19 June 2008;
	
	c.  Information Paper, subject: Overview of the Army Physical Disability Evaluation System, dated 11 April 2007;
	
	d.  Orders, A-12-412913, U. S. Army Human Resources Command, Alexandria, Virginia, dated 13 December 2004;
	
	e.  General Officer Memorandum of Reprimand (GOMOR), U. S. European Command, dated 4 September 2007, with applicant's rebuttal;
	
	f.  Fiscal Year 2007 Colonel, Reserve Components Selection Board Results;
	
	g.  Memorandum, U.S. European Command, subject: Recommendation for Removal from a Promotion List, dated 27 February 2008;
	
	h.  DA Forms 67-9 (Officer Evaluation Report's) for the periods from 
30 August 2005 to 26 July 2006; and from 26 July 2006 to 25 July 2007;
	
	i.  Memorandum, U.S. Army Human Resources Command, St. Louis, Missouri, subject: Notification of Suspension of Favorable Personnel Actions, dated 6 March 2008;
	
	j. Letter, Defense Finance and Accounting Service, dated 8 July 2008;
	
	k.  Letter from the applicant to the President, Army Reserve Promotion Review Board, dated 26 May 2008;
	
	l.  Memorandum, U.S. Army Human Resources Command, St. Louis, Missouri, subject: Notification of Department of the Army (DA) Promotion Review Board Results, dated 10 June 2008; and 
	
	m.  a copy of Title 10, U.S. Code, section 1372, Grade on retirement for physical disability for members of the armed forces.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a retired lieutenant colonel, pay grade O-5.


2.  Orders A-12-412913, U.S. Army Human Resources Command, Alexandria, Virginia, dated 13 December 2004, ordered the applicant to active duty in the rank of lieutenant colonel, pay grade O-5, for a period of 2 years from 16 April 2005 to 15 April 2007.

3.  On 4 September 2007, the applicant received a GOMOR for failing to accurately disclose that his family had lived with him in the Federal Republic of Germany.  This resulted in his improperly receiving family separation allowance and housing allowances to which he was not entitled.  The applicant acknowledged receipt of the GOMOR and submitted a rebuttal.  Subsequently, the imposing general directed that the GOMOR be redacted and filed in the applicant's military personnel records jacket (MPRJ) for a period of 1 year.  The general further directed filing of the unredacted portion of the GOMOR in the applicant's official military personnel file (OMPF). 

4.  On 16 November 2007, the Colonel Reserve Components Promotion Selection Board recommended the applicant for promotion to colonel, pay grade O-6. The subsequent promotion list was dated 21 February 2008.

5.  In a memorandum, dated 27 February 2008, the Headquarters Commandant, U. S. European Command, recommended removal of the applicant's name from the colonel promotion list.  The memorandum stated that the applicant had become disqualified for promotion on 4 September 2007, when he had received a GOMOR.  

6.  In a memorandum, dated 6 March 2008, the Chief, DA Promotions, notified the applicant that in accordance with DA policy and Army Regulation 135-155 (Promotion of Commissioned Officers), promotion lists are continuously screened to ascertain if an officer thereon may have become unqualified prior to promotion to the next higher grade.  The memorandum indicated that he was provided a copy of the report suspending his favorable personnel actions (FLAG) and the recommendation that was submitted by his commander.  As a result, the applicant's records were to be considered by the DA Promotion Review Board for reconsideration of his promotion eligibility.  Until a final determination was made, the applicant was not in a promotable status.

7.  On 25 April 2008, the applicant was retired due to physical disability.  His DD Form 214, as originally issued showed his rank as colonel, pay grade O-6, with a date of rank of 25 April 2008.

8.  On 19 June 2008, a DD Form 215 corrected the applicant's DD Form 214 to show his rank as lieutenant colonel, pay grade O-5, with a date of rank of 
26 January 2004.
9.  Title 10, U.S. Code, section 1372, provides, in pertinent part, that unless entitled to a higher grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this Title, is entitled to the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers) provides, in pertinent part, that an officer's promotion is automatically delayed when the officer is under, or should be under, suspension of favorable personnel actions.  This regulation also provides that an officer must be serving in an active status to be promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends that he was entitled to retire in the rank of colonel, pay grade O-6.

2.  The available evidence clearly shows that the applicant was selected for promotion to colonel, pay grade O-6 subsequent to his receiving a GOMOR.  However, prior to being promoted, the applicant's commander requested his removal from the promotion list based on the GOMOR.

3.  The evidence shows that a FLAG was in place and the DA Promotion Review Board was going to reconsider his promotion eligibility.   Until a decision by the DA Promotion Review Board, the applicant was in a non-promotable status.  However, before his promotion recommendation could be reconsidered, he was retired due to physical disability and removed from an active status.

4.  The removal from an active status put the applicant in a non-promotable status. Therefore, he could not be promoted to colonel, pay grade O-6 subsequent to his retirement.  Hence, there was no need for the DA Promotion Review Board to make a determination.

5.  In view of the above, there is no error or injustice.  Therefore, the applicant's request should be denied.  







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)                                         AR20090011478





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ABCMR Record of Proceedings (cont)                                         AR20090011478



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