IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110014417 


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 reinstatement of his original date of rank (DOR) from the Fiscal Year 2008 (FY08) Army Major (MAJ) Competitive Category Promotion List with a DOR of 1 February 2009.

2.  The applicant states he was selected for promotion to MAJ by the FY08 promotion board.  He was assigned sequence number 439.  Subsequent to this selection, he was notified that his promotion was placed on hold pending the results of a U.S. Army Criminal Investigation Command (CID) investigation regarding detainee abuse.  In January 2009, CID determined the allegations were not substantiated and closed the case.  Upon notification of closure, he contacted officials at the U.S. Army Human Resources Command (HRC) who told him his promotion packet would go to the Office of the Secretary of Defense for approval and include an endorsement signed by the President.  On 31 March 2010, he was informed that the endorsement had not been signed and that he was removed from the promotion list.  He was exonerated from all allegations that resulted in his removal and he has been unjustifiably denied 24 months of rank and entitlements.

3.  The applicant provides the following documents:

* endorsement and removal memoranda
* Military Personnel (MILPER) Message 08-211, subject:  Preposition/
Official Release of the FY08 MAJ Maneuver, Fires and Effects (MFE), Operational Support (OS), and Force Sustainment (FS) Promotion Selection Boards
* CID investigation findings

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as an armor commissioned officer in the rank of second lieutenant with concurrent call to active duty on 21 September 1999.

2.  He served in a variety of stateside and overseas assignments and he was promoted to captain on 1 December 2002.  He served in Kuwait/Iraq in support of Operation Iraqi Freedom from 2 January 2005 to 18 January 2006 and from 17 January 2007 to 3 April 2008.

3.  In July 2007, CID agents at Camp Victory, Iraq, received a complaint of alleged assault by the applicant on an unknown detainee.  The investigation determined credible information did not exist to believe the applicant committed the assault offense as alleged.  A witness assigned to 5th Battalion, 7th Cavalry Regiment, Fort Stewart, GA, declined to provide a sworn statement.

4.  In August 2008, CID reopened the investigation.  The CID final report was that the alleged assault was unfounded.  CID formally closed the investigation.

5.  On 12 August 2008, the Army released the results of the FY08 MAJ promotion board by MILPER message.  The applicant was selected for promotion with sequence number 439.

6.  On 8 April 2010, the Secretary of the Army (SA) directed removal of the applicant's name from the FY08 MAJ, Army, MFE List in accordance with Title 10, U.S. Code (USC), section 629(c).

7.  On 15 April 2010, the applicant was notified by memorandum from HRC that the SA had directed removal of his name from the FY08 promotion list.  An officer whose name is removed continues to be eligible for consideration for promotion.  If recommended, he could request that the SA grant him the same DOR and effective date as he would have if his name were not removed.

8.  On 24 July 2009, he was awarded a Master of Science in Strategic Intelligence and on 19 February 2010, he successfully completed the Strategic Intelligence Officer Course (4 January 2010 to 19 February 2010).  It appears he was awarded functional area 34A (Strategic Intelligence), which is part of the Operational Support (OS) Career Field. 


9.  The records show he was also selected by the FY11 MAJ promotion selection board that convened on 27 October 2010 and released on 31 March 2011.  He was selected in the OS career field and was assigned sequence number 6.  The board received Senate confirmation on 26 May 2011.

10.  On 1 June 2011, HRC published Order Number 152-004 promoting the applicant to MAJ with an effective date and DOR of 1 June 2011.

11.  An advisory opinion was obtained on 22 August 2011 in the processing of this case.  An official of the Office of the Deputy Chief of Staff, G-1, recommended partial relief to adjust the applicant's DOR to 1 March 2009.  The official stated that under the provisions of Title 10, USC, section 629(e)(1), the SA may grant the applicant the same DOR and effective date of promotion to MAJ as he would have had if his name had not been removed from the list.  The applicant would have been promoted on 1 March 2009.

12.  In his 12 September 2011 rebuttal, the applicant stated the DOR listed on the advisory opinion does not conform to the original sequence number from the FY08 board.  His sequence number 439 equates to a 1 February 2009 DOR, not 1 March 2009 as recommended in the advisory opinion.

13.  Military Personnel (MILPER) Message 09-004, Title, Promotion Numbers for Feb 09, stated there would be 87 promotions to MAJ in career field OS, from sequence number 273 through sequence number 361.

14.  MILPER Message 09-024, Title, Promotion Numbers for Mar 09, stated there would be 88 promotions to MAJ in career field OS, from sequence number       362 through sequence number 449.

15.  Title 10, USC, section 629 (Removal from a List of Officers Recommended for Promotion), states in:

	a.  section 629(c)(1), if an officer whose name is on a list of officers approved for promotion under section 624a to a grade for which appointment is required to be made by and with the advice and consent of the Senate is not appointed to that grade during the officer's promotion eligibility period, the officer's name shall be removed from the list unless as of the end of such period the Senate has given its advice and consent to the appointment;

	b.  section 629(c)(2), before the end of the promotion eligibility period with respect to an officer under paragraph (1), the President may extend that period for purposes of paragraph (1) by an additional 12 months; and

	c.  section 629(c)(3), the term "promotion eligibility period" means:  with respect to an officer whose name is on a list of officers approved for promotion under section 624(a) to a grade for which appointment is required to be made by and with the advice and consent of the Senate, the period beginning on the date on which the list is so approved and ending on the first day of the 18th month following the month during which the list is so approved.

16.  Title 10, USC, section 629(e)(1), states an officer whose name is removed from a list under subsection (a), (b), or (c) continues to be eligible for consideration for promotion.  If he is recommended for promotion by the next selection board convened for his grade and competitive category and he is promoted, the Secretary of the military department concerned may, upon such promotion, grant him the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the Active Duty List as he would have had if his name had not been so removed.

17.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List.  Paragraph 1-33 states the SA will provide guidance and instructions in a memorandum of instructions to the promotion selection board.  Chapter 8 (Promotion Review Boards (PRB)) states that Headquarters, Department of the Army (HQDA), will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.

	a.  An officer may be referred to a PRB for a number of reasons, to include when derogatory information is received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.  An officer may be referred to a PRB for the following reasons (the list is not exclusive):  a referred OER; punishment under Article 15, Uniform Code of Military Justice (whether filed in the restricted or performance section of the OMPF); any court-martial conviction; a memorandum of reprimand placed in the OMPF; adverse documentation filed in the OMPF; initiation of elimination action; or other derogatory information received by HQDA but not filed in the OMPF if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.

	b.  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 (Title 10, USC, section 629(a)).  This authority has been delegated to the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was selected for promotion to MAJ by the FY08 MAJ promotion board.  He was assigned promotion sequence number 439 and he was scheduled to be promoted on 1 March 2009.

2.  It appears that when the promotion board convened, the board was not aware that he had been under investigation for alleged assault.  An officer may be removed from the promotion list for a number of reasons to include when derogatory information received by HQDA but not filed in the OMPF if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.  Accordingly, the SA removed him from the promotion list.

3.  However, the alleged charge of assault was unsubstantiated.  This did not change the fact that he was investigated; however, the CID report exonerated him from any wrongdoing.  Therefore, as a matter of equity, he should be promoted to MAJ with an effective date and DOR of 1 March 2009, the same DOR and effective date of promotion to MAJ as he would have had if his name had not been removed from the list with entitlement to back pay and allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Order Number 152-004, dated 1 June 2011, to show he was promoted to MAJ effective 1 March 2009 and restoration of back pay and allowances as a result of this correction.



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the 1 February 2009 DOR.



      ____________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)                                         AR20110014417



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ABCMR Record of Proceedings (cont)                                         AR20110014417



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