IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100020178 


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 first lieutenant (1LT)/pay grade O-2 with an effective date of 17 November 2008 with all back pay and allowances due as a result of the promotion, and consideration for promotion to captain (CPT)/pay grade O-3 by a Special Selection Board (SSB) under the Year Group (YG) 2007 promotion criteria.

2.  The applicant states that if the provisions of Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) had been followed the flag against him would have been lifted after the imposition of nonjudicial punishment (NJP).  However, it was not lifted and it prevented him from being promoted.  He also states:

   a.  His Promotion Eligibility Date (PED) for 1LT was 17 November 2008.

   b.  A flag was initiated against him prior to any official AR 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers).  He first learned of the flag in November 2008 and legal assistance attorneys told him the flag was kept in place because each action would have initiated a new flag anyway and it merely constitutes a "harmless error."  He asserts this is procedurally improper and not within the intent or spirit of the AR.

   c.  An AR 15-6 investigation was completed on 8 October 2008 which led to an Article 15 and a letter of reprimand (LOR) being filed in his Official Military Personnel File (OMPF).  

   d.  Since his PED for 1LT was 17 November 2008 he was eligible for promotion to 1LT on 10 December 2008, as he should have been unflagged once the NJP was imposed.

   e.  Official documentation initiating elimination action against him occurred in January 2010.
   
   f.  Had the flag been lifted on time to allow him to be promoted in December 2009, he would have been eligible for consideration by the YG 2007 CPT Promotion Board that was held in December 2009.

   g.  A DA Form 78-R (Recommendation for Promotion to 1LT/CW2) was not completed by his command to obtain a determination to place him in a non-promotable status.  Instead, it appears the command waited for the results and recommendation of a Flying Evaluation Board (FEB).  He adds the governing AR shows that an FEB is an administrative board whose purpose is to make recommendations to the command.  Therefore, for this reason, the flag should not have remained in place.  In addition, by leaving the flag in place it appears the command was anticipating "adverse" results from the FEB which indicates a clear prejudice towards the outcome of the FEB.

   h.  The final administrative action taken was a Relief for Cause (RFC) Officer Evaluation Report (OER), on 2 June 2009, which was back-dated to 10 April 2009.  He states there was no further administrative action taken until an elimination action was initiated by the Commander, 2nd Infantry Division, on
15 January 2010.  He adds it is reasonable to assume that the command would have promoted him to 1LT had the flag been properly removed during the aforementioned 7-month period.  He asserts that legal counsel advised him that a new flag should have been put in place at the time the elimination action was initiated, as stated in the commander's memorandum.

   i.  He was never notified of his non-promotable status and there is no evidence that exists or can be produced showing the proper forms were submitted through command channels to Headquarters, Department of the Army (HQDA) or the Secretary of the Army (SA).

   j.  AR 600-8-29 (Officer Promotions) provides that upon initiation of a flag, the officer must be given written notice of the reasons for the delay of promotion and that delay must be resolved within 6 months of the date the officer would have been promoted, unless the SA or his designee grants a further delay.  He states he was not given any written reason for the delay of his promotion to 1LT and the DA Form 78-R should have been filled out by his chain of command documenting his non-promotion status.
   k.  Title 10, U.S. Code, section 14311, provides the legal aspects of an involuntary delay of promotion.  There is no documentation that shows the SA granted any delay in his promotion and his rights were violated.

   l.  Had Army officials followed regulatory guidelines and adhered to the correct procedures he would have been eligible for promotion to 1LT shortly after his PED of 17 November 2008 and he would also have been eligible for consideration for promotion by the YG 2007 CPT Promotion Board.

3.  The applicant provides a timeline of events, his elimination memorandum, three flagging documents, and a DA Form 67-9 (Officer Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted Regular Army (RA) service from 
22 September 1994 through 11 July 2001.  The highest rank he attained was sergeant (SGT)/pay grade E-5.

2.  The applicant had prior honorable RA service in a warrant officer status from 12 July 2001 through 16 May 2007.  He was awarded military occupational specialty (MOS) 153D (UH-60 Pilot).  He was promoted to the rank of chief warrant officer two (CW2)/pay grade W-2 on 12 July 2003.

3.  The applicant attended Officer Candidate School.  He was appointed and ordered to active duty as an RA commissioned officer in the rank of second lieutenant (2LT)/pay grade O-1 on 17 May 2007 in Basic Branch/area of concentration (AOC) 15A (Aviation).  He was assigned overseas to Korea on    29 July 2007.

4.  Headquarters, 2nd Battalion (Assault), 2nd Aviation Regiment, 2nd Combat Aviation Brigade, 2nd Infantry Division [Korea], memorandum, dated 8 October 2008, Subject:  AR 15-6 Investigation Findings and Recommendations show the facts and circumstances surrounding an aviation accident involving a precautionary/hard landing and subsequent damage to a UH-60 air frame piloted by the applicant and a warrant officer (WO).  It shows:

   a.  on the morning of 10 August 2008, the applicant was the pilot in command.  The IO recommended that the applicant undergo an FEB for violating Army regulatory guidance, training guidance, and the Brigade Standing Operating Procedures (SOP).

   b.  The IO also found the applicant lied to a senior officer, violating Article 107 of the Uniform Code of Military Justice (UCMJ) by making a false official statement and that he must be held accountable for his actions.
   
   c.  This AR 15-6 investigation with enclosures is filed in the restricted portion of the applicant's OMPF as an allied document related to a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).

5.  A DA Form 2627, dated 4 December 2008, shows that NJP was imposed against the applicant for being derelict in the performance of duties as the pilot in command of a UH-60 aircraft on 10 August 2008 by endangering the safety of his crew by conducting a self-recovery of a damaged aircraft without proper approval; willfully failing to disclose pre-planned mission parameters (pinnacle/ dust landings) and making such landings in violation of AR's and the SOP; and officially making false statements to a superior commissioned officer and a senior WO with intent to deceive.

   a.  His punishment was an oral and written reprimand.

   b.  The applicant did not appeal the punishment.

   c.  The commander directed the DA Form 2627 be filed in the performance portion of the applicant's OMPF.

   d.  The AR 15-6 investigation and the applicant's Officer Record Brief (ORB) are listed as allied documents.

6.  Headquarters, 2nd Combat Aviation Brigade, 2nd Infantry Division, memorandum, Subject:  Reprimand, issued by Colonel Joseph A. B_____, officially reprimanded the applicant for recklessly endangering the lives of other Soldiers by willfully choosing to violate flying regulations and SOPs while pilot in command of a UH-60 aircraft on 10 August 2008.

   a.  The applicant acknowledged receipt of the memorandum on 10 December 2008.

   b.  The two documents are filed in the performance portion of the applicant's OMPF.

7.  Army Special Review Boards, Arlington, VA, memorandum, dated
25 February 2010, shows the Department of the Army Suitability Evaluation Board deliberated on the applicant's petition to transfer an Article 15, dated
4 December 2008, from the performance to the restricted portion of the OMPF and voted to deny the transfer of the Article 15.

8.  Commander, U.S. Army Human Resources Command (USA HRC), Alexandria, VA, message to the Commander, 2nd Infantry Division, dated
31 August 2010, Subject:  Elimination, shows: 

   a.  on 20 May 2010, a board of inquiry recommended that the applicant be eliminated from the U.S. Army with an honorable discharge based on misconduct, moral or professional dereliction, and derogatory information;

   b.  on 25 August 2010, the Department of the Army Board of Review for Eliminations affirmed the recommendation of the applicant's elimination from the Army; and

   c.  the Assistant SA (Manpower and Reserve Affairs) approved the elimination of the applicant from the Army with an honorable discharge based on misconduct, moral or professional dereliction, and derogatory information.

9.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 October 2010, shows the applicant was honorably discharged under the provisions of AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b and 4-24a(1), based on unacceptable conduct.  He had completed 3 years, 
4 months, and 27 days of net active service this period.

10.  In support of his application, the applicant provides a timeline of events that provides dates and a list of events beginning with the aviation incident on          10 August 2008, followed by two AR 15-6 investigations and two FEBs, his NJP, LOR, RFC OER, seven involuntary foreign service tour extensions, a Board of Inquiry, and the approved recommendation for involuntary separation forwarded to HQDA on 30 June 2010.

11.  The applicant also provides a Headquarters, 2nd Infantry Division [Korea], memorandum, Subject:  Initiation of Elimination, issued by Major General Michael S. T_____, that notified the applicant he was required to show cause for retention on active duty under the provisions of AR 600-8-24.  This action was due to the applicant's misconduct, moral and professional dereliction, intentional omission and misstatement of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, intentional neglect of and failure to perform duties, conduct unbecoming an officer, conduct and actions that resulted in the loss of professional flying status, conduct that resulted 


in loss of special qualifications as a pilot, and punishment under the UCMJ, Article 15:

	a.  The memorandum shows the applicant was advised of his rights and of the separation procedures involved.

   b.  The memorandum shows the separation authority noted the applicant was permanently disqualified from aviation service and had lost his professional status as a pilot based on the findings and recommendations of an FEB on       10 April 2009.  It also shows the applicant's conduct and actions resulted in a loss of special qualifications which were necessary for the performance of duties in his AOC.  The commander noted that a flag was initiated under the provisions of AR 600-8-2.
   
   c.  The memorandum also shows the applicant was provided 6 enclosures identified as an AR 15-6 Investigation and Report, dated 8 October 2008; FEB Results and Report, Field Grade Article 15 and LOR; Aviation Service Disqualification memorandum; Flag/ORB; and an Acknowledgement memorandum.
   
   d.  Two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)) and an email that show:

       (1)  on 21 August 2008, a flag was initiated on the applicant's records based on adverse action;

       (2)  on 7 July 2009, a flag was initiated on the applicant's records based on a field-initiated elimination action; and

       (3)  on 19 January 2010, the captain serving as trial counsel requested an administrative separation flag based upon the commanding general's signature on the elimination memorandum.

   e.  A DA Form 67-9, annual OER for the period 11 April 2009 through 10 April 2010, that shows the applicant performed the principal duty of Battalion Assistant Operations Officer, Headquarters and Headquarters Company, 3rd Battalion,
2nd Aviation Regiment, General Support Aviation Battalion [Korea].  The rater evaluated his performance and potential as "Outstanding Performance, Must Promote" and the senior rater evaluated his promotion potential as "Best Qualified."


12.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Special Actions, USA HRC:

	a.  The advisory official recommends denial of the applicant's request for promotion to 1LT and consideration by an SSB for promotion to CPT.

   b.  The advisory opinion states that AR 600-8-22, paragraph 1-11, indicates that the suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated.  It is not deemed as punishment, it is a mandated requirement that must occur.  Therefore, the applicant was not eligible for promotion to 1LT.

13.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to comment.  On 27 April 2011, the applicant provided his response:

   a.  He states the advisory opinion simplifies the issue and does not address the fact that a flag was improperly allowed to remain in place for over 2 years, which effectively served as punishment in his case.

   b.  There should not have been a flag in place from December 2008
(i.e., following the filing of the LOR in his OMPF) through January 2010 (i.e., until elimination proceedings were initiated by the commanding general).  He adds there were no actions that would have qualified or necessitated a flag and his OERs support his promotion potential during this period.

   c.  He adds that he was not given any documentation regarding his ineligibility for promotion nor did the SA or his designee grant a delay in his promotion beyond either the 6-month or 18-month marks.

   d.  The applicant implores the Board take into account all facets of his claim and the events surrounding his case, as well as his distinguished military career.

14.  AR 600-8-2 prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.

   a.  Chapter 1 (Introduction), paragraph 1-8 (the principle of support), states HQDA will operate a system to guard against the accidental execution of specified favorable personnel actions for Soldiers not in good standing. 

   b.  Chapter 2 (Operating Tasks), paragraph 2-1 (Rules for initiating the flag), shows that:

* a separate flag will be initiated for each investigation, incident, or action
* the commander (or general officer staff head) directs the flagging action
* the effective date of a flag is the date of the incident or the date the commander (or general officer staff head) initiates the action, whichever is earlier

15.  AR 600-100 (Aviation Service of Rated Army Officers), Chapter 6 (FEB), paragraph 6-1f, provides that FEB functions and duties are administrative.  The FEB does not make recommendations on disciplinary actions.  The conduct of the FEB will be guided by AR 15-6 and this regulation.

16.  AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It also precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

	a.  Chapter 1 (Introduction), section III (Policy), shows in:

		(1)  paragraph 1-10 (Promotion eligibility), in pertinent part, the law establishes no minimum time in grade (TIG) requirements for consideration for promotion; however, an officer must have at least 18 months TIG to be promoted to 1LT.

		(2)  paragraph 1-19 (Nonpromotable status) that an officer's promotion is automatically delayed (i.e., the officer is not promoted in spite of the publication of promotion orders) when the officer is:

			(a)  under investigation that may result in disciplinary action of any kind being taken against him or her;

			(b)  under proceedings that may result in administrative elimination or discharge under other than honorable conditions; and

			(c)  under, or should be under, suspension of favorable personnel actions.

		(3)  paragraph 1-20 (Delay of promotion) that the promotion of any officer who is in a nonpromotable status is automatically delayed.  DA Form 268 will be imposed during the delay.  The office preparing the DA Form 268 must give the officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible.
	b.  Chapter 3 (Managing Promotions to 1LT and CW2) shows in:

		(1)  paragraph 3-1 (Rules for computing promotion eligibility date to 1LT), in pertinent part, the PED will be computed based on 18 months of active duty service as a 2LT on the Active Duty List.

		(2)  paragraph 3-5 (Rules for processing DA Form 78) that the preparation of the DA Form 78 is no longer required for officers who are promoted by the automated system.  Automated promotions to 1LT/CW2 will be done in accordance with instructions issued by HQDA.

			(a)  When a promotion approval authority (lieutenant colonel (LTC) or higher commander, including commanders frocked to LTC) disapproves promotion to 1LT/CW2, process a DA Form 78 not later than the PED.

			(b)  The recommending authority, usually the eligible officer's rater in accordance with AR 623-105 (Officer Evaluation Reporting System), and the promotion approval authority will fully explain the reason for the recommendation on the DA Form 78.

			(c)  The officer under consideration will be provided a copy of the 
DA Form 78 recommending non-promotion.  The officer will be afforded the opportunity to provide a statement to the promotion approval authority.

			(d)  The promotion review authority (PRA) (normally the first commander in the chain of command having general court-martial jurisdiction) will take final action on cases on which the promotion approval authority has recommended against promotion.

			(e)  Denials for promotion to 1LT will be held in abeyance for 6 months. If at the end of 6 months promotion is still denied, the PRA must make a determination whether or not to promote.  If the approval authority decides to promote the officer during the abeyance period, the DOR and effective date will be the date the decision is made to promote the officer.

			(f)  The decision of the PRA is final.

		(3)  The Glossary (Terms) defines PED as a date used to establish the due course promotion date.

17.  Title 10, U.S. Code, section 14311 (Delay of promotion:  involuntary), provides, in pertinent part, when sworn charges against the officer have been 


received by an officer exercising general court-martial jurisdiction over the officer and the charges have not been disposed of, or an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer, the appointment of an officer to a higher grade may not be delayed unless the officer is given written notice of the grounds for the delay.  The preceding sentence does not apply if it is impracticable to give the officer written notice before the date on which the appointment to the higher grade would otherwise take effect, but in such a case the written notice shall be given as soon as practicable.  (An officer whose promotion is delayed under this provision shall be given an opportunity to make a written statement to the Secretary of the military department concerned in response to the action taken. The Secretary shall give consideration to any such statement.)

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the SA, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to 1LT (O-1) with an effective date of 17 November 2008 with all back pay and allowances due as a result of promotion and consideration for promotion to CPT (O-3) by an SSB under the YG 2007 promotion criteria.  He contends that his PED was 17 November 2008 and he was eligible for promotion during the period from 10 December 2008 until 15 January 2010; however, a flag was improperly left in place that precluded him from being promoted and he was not officially notified of the delay.

2.  The evidence of record shows on:

* 10 August 2008, an aviation incident occurred in which the applicant was involved and an accident investigation was initiated
* 21 August 2008, a flag was initiated based on adverse action
* 8 October 2008, the IO completed the AR 15-6 investigation and recommended an FEB
* 17 November 2008, the applicant reached his PED
* 4 December 2008, NJP was imposed against the applicant
* 10 December 2008, an LOR was issued to the applicant
* 10 April 2009, the applicant was permanently disqualified from aviation service and lost his professional status as a pilot based on the findings and recommendations of an FEB
* 2 June 2009, an RFC OER was issued with a "Thru Date" of 10 April 2009 
* 7 July 2009, a flag was initiated based on a field-initiated elimination action
* 15 January 2010, the Commanding General, 2nd Infantry Division, initiated the applicant's elimination action

3.  The available evidence shows the incident the applicant was involved in on 
10 August 2008 was under investigation and a suspension of favorable personnel actions (flag) was imposed on 21 August 2008.  Thus, the applicant was in a non-promotable status as of 21 August 2008.

4.  On 8 October 2008, the IO recommended an FEB.

5.  On 10 April 2009, based on the findings of an FEB, the applicant was permanently disqualified from aviation service and lost his professional status as a pilot.  Thus, the applicant was not qualified for promotion in his aviation specialty effective 10 April 2009.

6.  A suspension of favorable personnel actions was imposed on 7 July 2009 based on a field-initiated elimination action.

7.  On 15 January 2010, the applicant was notified by the Commanding General, 2nd Infantry Division, to "show cause" for his retention on active duty.

8.  An officer remains in a non-promotable status and a promotion is automatically delayed when the officer is under investigation that may result in disciplinary action of any kind being taken against him [emphasis added]; under proceedings that may result in administrative elimination or discharge under other than honorable conditions; and under, or should be under [emphasis added], suspension of favorable personnel actions.

9.  Thus, the evidence of record shows the applicant was in a non-promotable status beginning 21 August 2008 and while he was under investigation by two AR 15-6 investigations and two FEBs until he was found ineligible for promotion effective 10 April 2009 based on the loss of his professional status and being permanently disqualified from aviation service.  Accordingly, he remained in an ineligible and non-promotable status through the date of his discharge on
13 October 2010.  Therefore, the applicant was not eligible for promotion to 1LT 


at any time from his PED through the date of his discharge.  Thus, there was no requirement to deny the applicant's promotion by completing a DA Form 78-R because his promotion was actually delayed during this period based on his ineligible/non-promotable status.

10.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the presumption is that the administration of the AR 15-6 investigations, FEBs, suspension of favorable personnel actions, notifications and delays of promotion to 1LT, and elimination action were in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout these processes.

11.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100020178



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ABCMR Record of Proceedings (cont)                                         AR20100020178



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