IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20100010693 


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 sergeant (SGT)/E-5 retroactive to November 2006 and payment of active duty pay in the rank/grade of SGT/E-5 from November 2006 to 13 December 2007.

2.  The applicant states she was eligible for promotion in November 2006 but was verbally flagged (suspension of favorable personnel actions) in December 2006 by the 160th Military Police Battalion without proper documentation.  The lack of documentation was noted by the 81st Regional Support Command (now known as Regional Readiness Command, or RRC).  However, when pressed for documentation, the 160th Military Police Battalion chain of command removed this flag on 8 August 2007.  Then, when the 160th Military Police Battalion failed to promote her and lacked the proper documentation that she was flagged, an email was sent out on 27 April 2007 to the 81st RRC stating that she was deliberately kept from promotion by the 160th Military Police Battalion for the duration of her combat tour in Afghanistan.

3.  The applicant provides a copy of her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 February 1990; a copy of a memorandum, dated 15 February 2008, listing her name on the 81st RRC Permanent Promotion Recommended List (PPRL); a copy of a DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 8 August 2007; and copies of email exchange, dated July and August 2007 and April 2008.



CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Air Force and the Army National Guard, the applicant's records show she enlisted in the U.S. Army Reserve (USAR) in the rank/grade of private first class/E-3 on 30 November 2004.  She was advanced to specialist (SPC)/E-4 on 12 February 2005.

2.  On 4 November 2005, she entered active duty for training (ADT), completed advanced individual training, and was awarded military occupational specialty (MOS) 91W (renamed 68W) (Health Care Specialist).  She was released from ADT on 20 March 2006 to the control of her USAR unit.

3.  On 21 August 2006, she was reassigned to the 160th Military Police Battalion, Tallahassee, FL.

4.  On 8 October 2006, she was ordered to active duty in support of Operation Enduring Freedom.

5.  On 23 December 2006, a flag was initiated against her for adverse action.  A copy of the DA Form 268 is not available for review with this case.

6.  On 8 January 2007, she arrived in Afghanistan with her unit, the 160th Military Police Battalion.

7.  On 13 January 2007, she received an administrative letter of reprimand for conducting herself in a manner to the prejudice of the armed forces by making threatening comments to Transportation Security Agency (TSA) agents at El Paso International Airport, TX.

8.  On 8 August 2007, her immediate commander at the 160th Military Police Battalion finalized a DA Form 268, effective 8 August 2007 that removed the initial flag placed in her records.

9.  Her records contain an extensive history of counseling by various members of her chain of command for several infractions including disrespectful language and deportment; failing to maintain proper military bearing; failing to obey orders, involvement in verbal confrontations with others; moving from her assigned living quarters in a combat zone without authorization or notification; refusing to work; failing to go at the time prescribed to her appointed place of duty; refusing to undergo a mental evaluation ordered by her battalion commander; refusing to give the battalion surgeon a package addressed to him; failing to report for the Army Physical Fitness Test; and multiple other instances of disrespect, insubordination, hostile tone and demeanor, lack of bearing, and unprofessionalism.

10.  On 2 October 2007, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14-12b, for misconduct.

11.  On 15 November 2007, an administrative separation board convened at Bagram Airfield, Afghanistan, to determine if she should be retained in the Army. The board found the applicant committed misconduct consisting of discreditable conduct and conduct prejudicial to the good order and discipline.   She was found undesirable for further retention and her rehabilitation was not deemed possible, and the board recommended her discharge with an under other than honorable conditions discharge.

12.  On 19 November 2007, the convening/separation authority reviewed the findings and recommendations of the administrative separation board proceedings and approved them.  He ordered the applicant discharged with an under other than honorable conditions discharge and to be reduced to the lowest enlisted grade [private (PV1)/E-1].

13.  She was discharged on 13 December 2007.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, with an under other than honorable conditions discharge.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the entries PV1 and E-1.  Additionally, this form shows she was not transferred back to the USAR.

14.  On 15 February 2008, the 81st RRC published its January 2008 PPRL.  The applicant's name was listed as eligible for promotion to SGT.  The PPRL point of contact directed subordinate commands to make corrections and adjustments and forward supporting documents to the 81st RRC.

15.  On 16 April 2008, by email from the 3220th Garrison Support Unit command sergeant major (CSM) to the 81st RRC, the CSM stated that the applicant was still showing on the promotion list and that she should not be promoted.  He elaborated that she was previously boarded and recommended for promotion to SGT in November 2006 but was flagged in December 2006 and remained flagged until a separation board discharged her in December 2007.  Her name should be removed from any PPRL.

16.  The applicant subsequently submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of her discharge.  On 17 December 2008, the ADRB granted her relief in the form of an upgrade of her discharge to a general, under honorable conditions discharge.  The ADRB also directed correction of her separation authority, separation code, reentry eligibility code, and narrative reason for her separation.  Accordingly, her DD Form 214 was voided and she was issued a new form to reflect the changes.

17.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states that a flag will be initiated immediately when a Soldier’s status changes from favorable to unfavorable.  Several specific actions and investigations require a non-transferable flag.  In cases of adverse action, a flag is initiated if a member is pending elimination from the Army.  The flag is removed when the Soldier is reassigned to the transition center for separation.  A flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states that Soldiers (SPC through master sergeant (MSG)) are non-promotable to a higher grade when a Soldier is in proceedings that may result in an administrative elimination.  The failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag under the provisions of Army Regulation 600-8-2.  A promotion is not valid and the promotion order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.  The unit commander must notify the promotion authority when a Soldier is in a non-promotable status.

19.  Paragraph 5-2 of Army Regulation 600-8-19 states the commander of the RRC is the regional promotion list manager for all USAR units, elements, and Soldiers located within his/her regional area of responsibility and operations.  The regional promotion list manager will review promotion selection board results and operations for administrative/procedural accuracy and compliance with established policy; incorporate Soldiers recommended by promotion boards onto the regional PPRL for all Soldiers residing within his/her regional area of responsibility; and add, update, and remove promotion list entries as necessary. Position vacancies are not required for promotion selection board consideration and placement on the PPRL. However, promotion off the PPRL requires the existence of a position vacancy (non-waivable).

20.  Paragraph 5-18 of Army Regulation 600-8-19 states that a consolidated PPRL will be established, published, and maintained by the regional promotion list manager.  The regional promotion list manager will announce the suspense dates for receiving a copy of the report of board proceedings from the promotion authorities.  The reports will be consolidated into one permanent recommended promotion list.  The names of recommended Soldiers will be extracted from the reports and placed on the list according to a certain format described.  The list will be revised every 3 months (or as often as needed) to provide for integration on the list of new names resulting from the transfer into the command of personnel with list standing in a Army Reserve losing command and report of board proceedings received from subsequent promotion recommendation boards; adjustments to list standings based on reevaluations, re-computations, removals due to promotions off the list, losses from the command, flags, or failures to maintain minimum number of promotion points, or administrative corrections.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be promoted to SGT/E-5 retroactive to November 2006 through 13 December 2007 and be paid accordingly.

2.  Despite the lack of her promotion packet, the evidence of record shows she was boarded and recommended for promotion to SGT/E-5 in November 2006.  For unknown reasons, she was flagged in December 2006 (a copy of the DA Form 268 is not available for review with this case).  She remained flagged until her commander removed the flag in August 2007.

3.  The evidence of record also shows that she displayed a pattern of misconduct throughout her tenure with the 160th Military Police Battalion in Afghanistan from January 2007 through December 2007, starting with a letter of reprimand (which would have required the initiation of a flag) and culminating with the initiation of separation action against her (which would also have required the initiation of a flag).  Those flags would have placed her in a non-promotable status.

4.  It is unclear if her chain of command initiated appropriate flags to suspend any favorable personnel action.  However, given the tactical environment, it is likely the paperwork may have been misplaced.  Nevertheless, the failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.  In her case, a flag was required.

5.  She was ultimately ordered discharged from all components of the Army on 13 December 2007 and reduced to the lowest enlisted grade.  Since she had no further military status subsequent to her discharge, her name appears to have been erroneously incorporated into the January 2008 PPRL.

6.  There is no evidence she was eligible for or was promoted to SGT/E-5.  Even if she had been, given her non-promotable status, her orders would have been revoked.  Therefore, in view of the circumstances of this case, she is not entitled to any relief.

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)                                         AR20100010693



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ABCMR Record of Proceedings (cont)                                         AR20100010693



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