BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110015372 


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 correction of his date of rank (DOR) for promotion to major to 1 April 2009.

2.  The applicant states, in effect, he was properly promoted to the rank of major through a position vacancy board (PVB) with the support of his chain of command on 1 April 2009.  However, 3 weeks after his promotion, a new battalion commander assumed command and initiated an informal Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation and unjustly submitted it to the U.S. Army Human Resources Command (HRC) requesting revocation of his promotion.  He states his promotion was unjustly revoked based on the Army Regulation 15-6 investigation and officials at HRC refused to acknowledge that it was unjust or to investigate the erroneous actions by his commander.  Accordingly, his DOR should be reinstated to 1 April 2009.

3.  The applicant provides the supporting documents listed on his application as well as a chronology of events.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) captain in the position of adjutant of an USAR artillery battalion (troop program unit) in Oklahoma when he submitted an application for consideration for promotion in his unit to the rank of major by a PVB and the application was endorsed by the acting battalion commander.

2.  He was promoted to the rank of major on 1 April 2009.  On 28 April 2009, an officer was appointed to conduct an investigation into alleged misconduct by the applicant regarding the means by which he obtained his promotion to the rank of major under the provisions of Army Regulation 15-6.

3.  The investigating officer found the applicant:

* acted in a manner inconsistent with the loyalty, honor, integrity, and candor expected of an officer
* initiated and followed through with the PVB application process, working covertly due to his request not being approved by his current commander in a process that is supposed to be initiated by the commanding officer 
* purposely misled the PVB
* utilized an avenue of promotion that was intended for the benefit of the unit for his own personal gain in that he acted without approval of and against the explicit wishes of his commanding officer in pursuit of promotion to the rank of major

4.  The investigating officer recommended:

* that the findings of the investigation be provided to the PVB for review and revocation of the applicant's promotion to the rank of major
* that the applicant reimburse the Army for all pay received above the rank of captain for the period he served as a major
* that he receive a letter of reprimand
* that PVB's require a letter from the Soldier's commander to be included in the packet indicating the application was commander-initiated and a valid reason why the unit needs the Soldier to be promoted through the PVB process

5.  The applicant submitted a rebuttal to the investigation report contending that it should be dismissed because the investigating officer failed to demonstrate any fact or substance that could be attributed to any wrongdoing on his part.  He also contended that the appointing officer and the investigating officer should have been recused from the investigation due to a conflict of interest.

6.  On 7 July 2009, the battalion commander forwarded the results of the investigation to HRC requesting revocation of the applicant's promotion.

7.  Accordingly, the applicant's promotion orders were revoked by HRC and a letter was dispatched to the applicant informing him that his promotion had been revoked and his service in the rank of major was in a de facto status.

8.  On 30 July 2010, he was again promoted to the rank of major.  He was issued his 20-year letter on 15 September 2011.

9.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the USAR and the Army National Guard.  It provides that the USAR promotion vacancy promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders.  In this event, the commander of the unit experiencing the position vacancy will send the names of all officers in the next lower grade who meet the promotion consideration eligibility requirements to the appropriate area commander.  It also provides that the HRC Office of Reserve Component Promotions may administratively delete a name from a recommended report of an officer who was not eligible for consideration.  Commanders and HRC Office of Reserve Component Promotions will continue to review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected.  Additionally, the HRC Office of Reserve Component Promotions is the approval authority for all requests for exceptions to non-statutory promotion requirements.

10.  Army Regulation 135-155 further states that if an officer's promotion is declared void and if the authority who revokes the promotion order determines the officer had accepted the promotion in good faith and worked in the higher grade before the declaration, then he or she will be deemed to have served in the higher grade in a de facto status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR for promotion to the rank of major should be reinstated to 1 April 2009 has been noted and appears to lack merit.

2.  While the applicant's contentions and supporting documents have been reviewed and noted, they do not appear to overcome the findings of the Army Regulation 15-6 investigation and the perceptions that his chain of command had of the situation at the time, which was that the applicant manipulated the promotion system to obtain a promotion without the knowing concurrence of his chain of command.

3.  Inasmuch as the chain of command was not actually supportive of his PVB application at the time and did not desire to fill the vacancy, he was essentially not eligible to be considered and his orders were properly revoked by HRC.  Accordingly, there appears to be no basis to grant his request for correction of his DOR.

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 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)                                         AR20110015372



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ABCMR Record of Proceedings (cont)                                         AR20110015372



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