IN THE CASE OF:	

		BOARD DATE:	 13 May 2010 

		DOCKET NUMBER:  AR20090016738 


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 adjustment to his captain (CPT) date of rank (DOR) and any back pay and allowances due as a result.

2.  The applicant states his name removed from the CPT Fiscal Year 2006 (FY06) Promotion Selection List due to a pending investigation into an incident that occurred while he was a member of the United States Air Force (USAF) in 2003.  He indicates that the incident was resolved while he was in the USAF and he later received an honorable discharge (HD).  The applicant states that once he was accepted into the Army, he was then disciplined a second time for the same incident that happened 2 1/2 years earlier.  He further indicates the investigation has since been dismissed.

3.  The applicant provides Military Personnel Message (MILPER MSG) 06-028 (By Name Promotion List), dated 25 January 2006, and an Army Human Resources Command (HRC) letter, dated 10 April 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows after having prior enlisted and commissioned service in the USAF, he was appointed a Reserve commissioned officer in the United States Army Reserve (USAR), in the rank of 1LT, on 20 May 2005.  

2.  On 31 May 2005, the applicant entered active duty as an obligated volunteer officer to fulfill his 3 year active duty commitment. 

3.  MILPER MSG 06-28, dated 25 January 2006, announced the results of the FY06 CPT Army Competitive Category (ACC) Promotion Selection List (PSL).  The applicant was on the list with sequence number 28, and selected for immediate promotion to CPT, with an effective date and DOR of 1 January 2006.

4.  On 7 February 2006, the applicant’s commander requested referral of his CPT promotion selection to the Promotion Review Board (PRB).  The referral was based on significant negative information in the applicant's official records from the USAF that was not provided the promotion board.  He further cited the following specific reasons for the referral action: 

	a.  The applicant’s two prior non-selections for promotion to CPT, on 30 June 2004 and 31 March 2005, while serving in the USAF;

	b.  Adverse information in the applicant’s USAF official military file that could adversely effect his potential performance at the higher grade; 

	c.  The applicant’s receipt of a letter of admonishment (LOA) on 18 July 2002, for knowingly fraternizing with a female staff sergeant assigned to his unit; and 

	d.  The applicant's receipt of a letter of reprimand (LOR) on 5 May 2004, for adultery.

5.  On 6 April 2006, the Deputy Chief, Promotions Branch, HRC, informed the applicant and his command that based on the commander's recommendation for removal from the FY06 CPT ACC PSL, the applicant's records were being referred to a PRB.

6.  The 6 April 2006 HRC PRB notification to the applicant also indicated the PRB would review his case and recommend one of the following options to the Secretary of the Army:

	a.  That he be retained on the promotion list;

	b.  That his name be removed from the promotion list; or 

	c.  That he show cause for retention on active duty.

7.  On 20 October 2006, the PRB convened to consider the applicant's case.  It concluded the incident that resulted in the applicant's referral to the PRB, when taken in conjunction with his over-all performance as demonstrated in his file, warranted his removal from the FY06 CPT Army Standing Promotion List.  

8.  The PRB cited the applicant's receipt of an LOR for adultery on 5 May 2004 and a referred performance report for the period 6 November 2003 to 17 May 2004 based on his disobeying a lawful order and making a false statement and recommended the applicant be removed from the FY06 CPT Army Standing Promotion List.  

9.  On 16 January 2007, The Department of the Army (DA) Director of Personnel Management, Deputy Chief of Staff G-1, prepared an action memorandum through the Deputy Chief of Staff, G1; Assistant Secretary of the Army (Manpower and Reserve Affairs); Vice Chief of Staff, Army; and Chief of Staff, Army, to the Secretary of the Army to obtain the Secretary of the Army's approval of the PRB on the applicant.  He confirmed The Judge Advocate General and General Counsel had reviewed the PRB report and had no legal objection, and recommended that the Secretary of the Army approve the PRB recommendation. 

10.  On 7 February 2007, the Secretary of the Army approved the PRB recommendation to remove the applicant from the promotion list.  

11.  The applicant was promoted to CPT, effective date and with a DOR of 31 January 2008, and is currently serving as an Operations Officer for a Federal Police Transition Team in Iraq.

12.  The applicant provides HRC Memorandum, Subject:  Termination of Elimination, dated 10 April 2008.  It shows an elimination action taken against him on 3 October 2007, was terminated.  It also indicates the documents pertaining to his show cause for retention on active duty would remain in his OMPF and may only be removed through an appeal.  It finally indicates a DA Form 268 (Suspension of Favorable Personnel Actions) initiated at HRC was closed.  

13.  Army Regulation 600-8-29 (Officer Promotions) provides the Army’s officer promotion policy.  Chapter 8 contains guidance on Promotion Review Boards.  It states, in pertinent part, that the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board.  This authority has been delegated to the Secretary of the Army.  

14.  Paragraph 8-8 of the officer promotion regulation contains guidance on PRB recommendations.  It states that the PRB's recommendation is only advisory to The Secretary of the Army.  In cases involving promotion to the grade of colonel or below, the board's report will be forwarded to the Secretary of the Army, who on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the DCS, G-1, or direct other appropriate action.  

15.  The doctrine of administrative finality derives from numerous Federal court cases dealing with similar issues as this one.  It prevents cases and applications from being perpetually reopened and reexamined.  Once a final administrative authority reaches a decision approving or ordering an action, the case is closed.  The power of the official rendering the decision is exhausted concerning that case and the deciding official cannot reconsider the decision, unless an exception to the doctrine of administrative finality or other legal authority authorizes reopening the case.  

16.  Title 10 of the United States Code, section 629, provides the legal authority to remove the name of any officer from a list of officers recommended for promotion to the President.  Executive Order Number 12396, dated 9 December 1982, further delegated this authority to the Secretary of Defense, who by memorandum, dated 12 January 1983, further delegated this authority to the Service Secretaries.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his CPT DOR should be backdated in accordance with MILPER MSG 06-028 to1 January 2006, because the investigation that removed him from the promotion list was dismissed was carefully considered.  However, there is insufficient evidence to support his claims.  

2.  The evidence of record confirms that the Secretary of the Army approved the PRB’s recommendation to remove the applicant’s name from the FY06 ACC CPT PSL on 7 February 2007, based on derogatory information contained in his USAF official military file which was not made known at the time of the applicant’s transfer to the Army nor at the time his record was reviewed and considered for promotion to CPT.

3.  Subsequent to the Secretary of the Army’s action, the elimination action directing the applicant to show cause for his retention on active duty was terminated.  However, this action has no bearing on the PRB process or recommendation, or on the Secretary of the Army's final decision to remove him from the FY06 CPT Army Standing Promotion List.

4.  The evidence of record confirms the Secretary of the Army had before him all the relevant facts and circumstances of this case at the time he rendered his original decision to remove the applicant from the promotion list.  This removal decision was accomplished in accordance with applicable law and regulation and an exception to the doctrine of administrative finality is not warranted in this case. As a result, there is an insufficient evidentiary basis to support granting the requested relief. 

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)                                         AR20090016738



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ABCMR Record of Proceedings (cont)                                         AR20090016738



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