IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110004083 


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 of her effective date and date of rank (DOR) as a captain (CPT) from 8 October 2010 to 1 June 2010 and restoration of back pay and allowances. 

2.  The applicant states she was selected for promotion to CPT in March 2010 and received laudatory letters from her battalion and brigade commanders.  She also received an Officer Evaluation Report (OER) through 1 May 2010.  She departed Iraq on leave on 16 May 2010 and returned on 11 June 2010.  Upon her return she found out that she was under investigation.  Her chain of command investigated her for a pattern of disrespect.  The investigation required a flag (suspension of favorable personnel action) and resulted in a local letter of reprimand.  The flag suspended her promotion status.  

3.  She also states that the flag was placed on 2 June 2010 which is after the effective date of her promotion to CPT (1 June 2010).  It appears the flag had the signature block of her old company commander but was signed by a new company commander.  She contacted the promotion branch at the U.S. Army Human Resources Command (HRC) and she was ultimately issued new orders for promotion to CPT effective 8 October 2010.  

4.  There were several problems with delaying her promotion:  she was never shown the 24 May 2010 flag until September 2010; the investigation was initiated immediately after her name appeared on the promotion list, not before; the flag was signed two days after the fact; the flag paperwork was not filled out properly; and the flag was signed by another commander.  
5.  She suffered a hardship as a result of this promotion delay and she was not afforded due process.  The investigation was completed in June 2010 but she did not receive her local letter filing decision until October 2010.  She feels she is being punished because the brigade S-1 did not complete the flag paperwork properly.  She also feels a hardship in knowing that she should have been promoted with her peers but she is now a few months behind.  

6.  The applicant provides:

* letter of promotion congratulation
* DA Form 31 (Request and Authority for Leave)
* Orders Number 141-127 (promotion to CPT)
* Officer Record Brief
* Email exchange
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Leave and Earnings Statements

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 19 May 2007. 

2.  She entered active duty on 28 May 2007 and completed the Quartermaster Officer Basic Course.  She was subsequently assigned to the 501st Brigade Support Battalion, Fort Bliss, TX.  She was promoted to first lieutenant on 26 November 2008.

3.  She deployed with her unit to Iraq in support of Operation Iraqi Freedom from on or about June 2009 to on or about June 2010.  

4.  On 1 February 2010, she received a change of rater officer evaluation report (OER) covering the rating period 18 June 2009 through 1 February 2010.  This OER shows: 

	a.  Her rater rated her performance and potential evaluation as "Satisfactory Performance - Promote" and entered the comment "[Applicant's] attitude and responsiveness to superior officers has improved throughout the deployment."

	b.  Her senior rater rated her as "Fully Qualified" and entered the comments "With more supervision and the appropriate amount of motivation, [Applicant] may realize her potential during her next rating period" and "deployment proved to be very challenging."
5.  On or about 22 May 2010, the U.S. Army Human Resources Command, (HRC), Alexandria, VA (now at Fort Knox, KY), published Orders 141-128 promoting her to CPT effective 1 June 2010.

6.  On 2 June 2010, CPT FGB, commander, Headquarters and Headquarters Company, 1st Heavy Brigade Combat Team, 1st Armored Division, initiated a flag against the applicant.  The effective date is listed as 24 May 2010 and the flag is signed by what appears to be another individual.

7.  On 8 October 2010, HRC-KNX published Orders Number 281-002 revoking her promotion to CPT.

8.  On 14 October 2010, HRC-KNX published Orders Number 287-012 promoting her to CPT with an effective date and DOR as 8 October 2010.

9.  On 1 February 2011, she received an annual OER covering the rating period 2 February 2010 through 1 February 2011.  This OER listed her rank as CPT and her DOR as 1 November 2008. 

10.  An advisory opinion was obtained on 6 June 2011 from an official at HRC Officer Promotions.  The official recommended disapproval of the applicant's request.  He stated:

	a.  The delay in the applicant's promotion was in accordance with Army Regulation (AR) 600-8- 29 (Officer Promotions), paragraph 1-20 and AR 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)).  The rules for initiating the flag's effective date are the date of the incident or the date the commander initiates the action, whichever is earlier.  Notifying the officer in writing of the initiated flag and/or delay of promotion should occur before its imposition or as soon thereafter as possible; this can or may possibly be delayed due to a change in the officer's duty status from present for duty to leave, confinement, hospital, and also but not limited to mission requirements deemed appropriate by the officer's command. 

	b.  HRC received information after the promotion orders were issued but within 6 months of the effective date of her promotion to CPT that she was in a non-promotable status.  By regulation, if within 6 months after the effective date of promotion new information results and is determined by Headquarters, Department of the Army (HQDA) that an officer was, on the effective date of promotion, in a non-promotable status, that promotion would be deemed to have been automatically delayed.  In such a case, the promotion order would be voided.  In addition, a flag is mandatory when a formal or an informal investigation is initiated on a Soldier.  The command's delay in forwarding the information on her non-promotable status on the issue date does not negate the fact that she was in a non-promotable status.  The applicant in this case noted that she was informed of the investigation and therefore affirms that she was not due to receive entitlements as a CPT at that time.

	c.  She was promoted with a DOR of 8 October 2010 after receiving a local letter of reprimand.  She has not provided evidence that shows she received a flag or a letter of reprimand in error.  Thus, she is not entitled to an adjustment of her DOR.

11.  In her rebuttal, dated 24 June 2011, the applicant states:

	a.  The regulation was not followed.  She should have been informed of and counseled regarding this flag.  She was only told that her promotion is on hold and nothing else.  Yet, she did not let personality conflicts affect her performance and she continued to perform her duties.  The flag is not relevant to her situation because it was initiated after the effective date of promotion.  There is no evidence that she was flagged prior to the effective date of promotion. 

	b.  No issues were brought to her attention at the time she left Iraq on leave.  Her CPT pay continued and no official paperwork was generated to hold her promotion.  She was never counseled on this flag.  She received the paperwork when the packet was given to her for a rebuttal.  But she did not receive the notification of the flag until September 2010.  She discussed the DOR and the flag with a General Officer who himself did not understand the regulation.  

	c.  The advisory official stated that she was aware of the investigation and that she was not entitled to the CPT pay.  This is not true.  She repeatedly asked lawyers and her chain of command if this investigation affected her promotion but everyone told her it would not.  

	d.  Her chain of command was simply looking for a pattern of misconduct which they could not prove.  There were many conversations about her behind closed doors.  Nevertheless, had the proper procedure and paperwork submission been done to standard and had her leaders been courteous to her, the advisory official would have been correct.  

12.  AR 600-8- 29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states in:

	a.  Paragraph 1-11, when promotion board results are announced, commanders will promptly inform each eligible officer, both selected and non-selected, within their command of the results and review the records of those on the list to ensure that favorable personnel action is not precluded under AR 600–8–2 

	b.  Paragraph 1-19, an officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders) when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her and/or should be under, suspension of favorable personnel actions (AR 600–8–2).

	c.  Paragraph 1-20 (Delay of promotion), the promotion of any officer who is in a non-promotable status is automatically delayed.  DA Form 268 will be imposed during the delay.  The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible (AR 600–8–2).  If a DA Form 268 is in effect at the time an officer’s name is announced on a promotion list, the officer’s commander will immediately notify him or her of the reason for the delay.  If this is impractical, written notice will be given as soon as possible.  An officer whose promotion has been delayed may make a written statement, expeditiously forwarded through the chain of command, to the Secretary of the Army (HRC-KNX).  

	d.  Paragraph 1-20c, if within 6 months after the effective date of promotion, new information results in a determination by HQDA that an officer was, on the effective date of the promotion, in a non-promotable status, that promotion will be deemed to have been automatically delayed.  In such a case, the officer’s promotion is void and the order announcing the promotion will be revoked.  The officer must be immediately notified of this fact.  Also, immediate steps will be taken to resolve the case or seek further delay.  

	e.  Paragraph 1-21 (DOR and effective date of promotion after a delay), when a delay in promotion is ended, the promotion approval authority will determine if the officer was in fact unqualified (as opposed to ineligible for promotion during all or part of the delay and will adjust them DOR and effective date of promotion accordingly.  

	f.  Paragraph 1-21d, when an officer’s promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the adjusted DOR (ADOR), effective date (for pay and allowances), and position on the Active Duty List (ADL) he or she would have received had there been no delay.  However, the ADOR and effective date will be adjusted as follows if promotion was delayed because of disciplinary action resulting in a Memorandum of Reprimand, regardless of filing disposition; then the ADOR and effective date will be the day after the date the reprimand was actually imposed or directed to be filed in the official military personnel file or the local file, whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to CPT and HRC published official orders promoting her to CPT effective 1 June 2010.  However, it appears that prior to being promoted she was under investigation by her chain of command.  

2.  The complete facts and circumstances of this investigation are not available for review with this case possibly due to the tactical situation.  However, based on the applicant's admission, this investigation resulted in a reprimand that was filed in her local file.  The fact that she was under investigation placed her in a non-promotable status and resulted in a delay to her promotion regardless if and when a flag was initiated.  Once the reason for the delay and the suspension was ended she was promoted with the ADOR of 8 October 2010. 

3.  There is insufficient evidence to support her contention of denial of due process as the facts and circumstances surrounding her investigation and the resulting reprimand are not available for review with this case.  It appears the unit's deployment and her departure on leave made it impractical to promptly notify her.  

4.  While it is true that had her chain of command forwarded the flag to HRC on time, HRC would not have published promotion orders effective 1 June 2010; nevertheless, the fact remains that she was in a non-promotable status which required a delay of her promotion.  She should not be entitled to an earlier promotion.

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)                                         AR20110004083



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004083



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1