IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20090019064 


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 promotion to colonel (COL) and placement on the Retired List in that rank.

2.  The applicant states he was selected and promoted to COL in the U.S. Army Reserve (USAR) with an effective date of 2 June 2005.  He adds that neither at the time of his promotion order nor at any time thereafter was he under a flag.  However, in late 2006 he received an order revoking his promotion to COL.  The applicant states that in March 2007 he made an inquiry to the Secretary of the Army (SA) concerning his nomination and was informed that his nomination did not go forward based on a Judge Advocate General (JAG) Standards of Conduct Office (SOCO) investigation in which he was the subject.  He maintains that in May 2005 he was informed he was completely cleared by the investigation and his nomination would go forward.  However, in March 2007 he was informed the Senate had not acted on his nomination during the 109th Congress and the SA had chosen not to submit the nomination to the Senate in the 110th Congress.

3.  The applicant provides a copy of his letter to the SA with the SA's representative's response, Army Reserve Personnel Command 
Form 249-E (Chronological Statement of Retirement Points), Notification of Eligibility for Retired Pay at Age 60 (20-year letter), promotion orders, revocation of promotion orders, and reassignment orders.


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 military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 17 May 1981.  He was promoted to lieutenant colonel in the JAG Corps effective 3 June 2000.

3.  On 18 June 2003, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter).

4.  Orders B-08-505313, dated 20 August 2005, show the applicant was promoted to COL in the USAR effective 2 June 2005.  The order stated the promotion was not valid and would be revoked if the applicant was not in a promotable status on the effective date of promotion.  These orders were later revoked by Orders B-08505313R, dated 31 October 2006.

5.  A letter from the Chief, Officer Division, Military Personnel Management Directorate, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 16 March 2007, informed the applicant that his nomination was returned to the SA by the 109th Congress when the Congress adjourned in December 2006. 
The Officer Division Chief stated the Senate Armed Services Committee was fully apprised of the applicant's situation and chose not to forward his name to the full Senate for confirmation.  He further stated that in order for the applicant's selection for promotion to be confirmed, the SA would need to submit his nomination through the Secretary of Defense and the President to the 110th Congress.  He concluded that after researching his case on behalf of the SA, he determined his name would not be submitted.

6.  Orders C-07-813169, dated 11 July 2008, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 10 July 2008.

7.  In an advisory opinion, the Chief, Special Actions Branch, DA Promotions, U.S. Human Resources Command (HRC), St. Louis, dated 28 May 2010, stated the applicant was considered and selected by the 2004 COL, Army Promotion List, Department of the Army Reserve Components Selection Board, that convened on 13 July 2004.  The official said the applicant was issued promotion orders to COL, later revoked due to his record being suspended for a favorable action.  On 11 May 2005, the applicant was cleared of any wrongdoing and the flagging action was resolved.  The applicant was provided a copy of the final DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)).  The official reiterated the information contained in the letter from the Chief, Officer Division, Military Personnel Management Directorate, Office of the Deputy Chief of Staff, G-1.  The official concluded that to date, the applicant has not been Senate-confirmed and, therefore, that office cannot issue a promotion order to the grade of COL.

8.  On 7 June 2010, the applicant responded to the advisory opinion.  He states the advisory opinion concerning the assertion that his promotion to COL was revoked due to his record being suspended for favorable action was incorrect.  He insists there was no such suspension at the time of the promotion order to COL or any time since.  The applicant states the HRC-St. Louis opinion in no way addresses the arbitrary decision of the SA not to submit his name to the 110th Congress.

9.  The applicant offers that he was subjected to disparate treatment.  He and another JAG officer were subjects of a SOCO investigation concerning events at Abu Ghraib and both of them were cleared by the SOCO investigation.  The applicant states there was no difference in their positions except for the fact that the other officer was Active Component whereas he was a Reservist.  He maintains the failure to submit his name to the Senate, while doing so for the other officer in an identical situation at the same time, is obviously a disparity in treatment.  (A review of the other officer's record discloses he was a COL in the zone for promotion to brigadier general (BG), but was retired in 2007 as a COL.  This means that even if his selection to BG was submitted a second time to the Senate, it was returned to the Army without confirmation.)

10.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states that suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities.

11.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies for the promotion of USAR and Army National Guard officers.  Paragraph 4-10 states officers selected for promotion to the grade of COL require Senate confirmation.

12.  The same regulation states that an officer's promotion is automatically delayed when the officer is under investigation, under or should be under suspension of favorable personnel actions, or the subject of a criminal investigation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received orders to be promoted to COL on 2 June 2005 and his promotion was later revoked due to his record being flagged (per advisory opinion rendered by HRC-St. Louis).  However, the applicant argues he was not under a flag at the time of his promotion order or at any time thereafter.

2.  The applicant also argues he was subjected to disparate treatment as justification to approve his request for promotion and/or placement on the Retired List in the rank of COL.  However, he provides no evidence to substantiate his claim that an active duty officer's, also under a SOCO investigation, nomination was forwarded to Congress after been cleared of any wrongdoing.  Even if this had been the case, this claim ignores the fact that the Senate never confirmed this officer's promotion.

3.  The ABCMR may only recommend submission of a name to the Senate for confirmation; it may not promote an officer to the grade of COL without Senate confirmation.  The Senate already refused to confirm the applicant, apparently after he was cleared in the SOCO investigation.  Therefore, it is unlikely a new submission would yield a different result.

4.  The Army cannot make the Senate or the Senate Armed Services Committee take a favorable action on an officer's promotion to COL.  The Senate returned the applicant's promotion without action.  There is nothing in the applicant's records to suggest this action was improper or unauthorized.

5.  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 that 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)                                         AR20090019064



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ABCMR Record of Proceedings (cont)                                         AR20090019064



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