IN THE CASE OF:	  

		BOARD DATE:	    28 August 2012

		DOCKET NUMBER:  AR20110016774 


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:

* retroactive removal of a general officer memorandum of reprimand (GOMOR) from his Official Military Personnel File (OMPF)
* immediate promotion to lieutenant colonel (LTC) by the Department of the Army Reserve Components Promotion Selection Board (PSB) under the fiscal year (FY) 2006 or 2007 criteria; or
* reconsideration for promotion by a Special Selection Board (SSB) under the FY 2006 or FY 2007 Promotion Selection Board criteria the FY 2006 or FY 2007

2.  The applicant defers statements to counsel:

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states:

   a.  the applicant was selected as an alternate to attend the Command and General Staff College (CGSC) and Logistics Executive Development Course (LEDC) on 27 January 2003; as a candidate to attend the resident LEDC in November 2003; however on 24 January 2003, he was mobilized in support of Operation Enduring Freedom for one year and unable to attend either course;
   
   b. during this mobilization, one of the applicant's Soldiers, a sergeant (SGT), received a Red Cross message indicating her 8 year old son had become ill with meningitis and was not expected to make it through the night;
   
   c.  the applicant drove the SGT to McChord Air Force Base (AFB) in an attempt to secure the least expensive flight to San Diego for her to be with her son as soon as possible;
   
   d.  the gate guard failed to see the applicant's military identification and asked him to proceed to the visitor's booth to obtain a visitor's pass where he was informed he could not enter the base because he did not have the rental car agreement, that had been left in his hotel room;
   
   e.  after the applicant explained the SGT's dire needs, the booth guard offered no other solution to allow him entry on the base, whether by escort or other means of transportation;
   
   f.  he then proceeded through the gate to the Space-A terminal without authorization in an attempt to help his Soldier where he was followed and apprehended by the Air Force security resulting in the subsequent issuance of the contested GOMOR;
   
   g.  although the GOMOR indicated three enclosures were included therewith, the applicant was never provided copies of enclosures 1 and 2 for his review and/or rebuttal comments as provided for in the governing regulation and as a result he did not receive due process;
   
   h.  after his demobilization in March 2004, the applicant enrolled in the non-resident online version of CGSC, only to be mobilized in support of OEF again for 365 days again from April 2004 through April 2005, at which time he was transferred from his USAR unit to the Missouri Army National Guard (MOARNG);
   
   i.  while the MOARNG completed the applicant's in-processing on 15 June 2005, the USAR did not complete his out-processing until 23 March 2007, thereby resulting a "dual status' that caused a variety of issues in his promotion packages; 
   
   i.  the applicant was mobilized again from June 2005 through May 2008 and worked in three different duty positions while continuing to pursue his education for promotion to LTC, despite several setbacks;
   
   k.  on 5 October 2005, the applicant was disenrolled from CGSC because the course material was outdated;
   l.  the applicant enrolled in intermediate level education (ILE) in June 2006, completed the resident phase of ILE in August 2006, having been unable to complete this course due to multiple deployments, he applied for and was granted an education waiver;
   
   m.  the applicant was not selected for promotion to LTC by the FY 2006 PSB, most likely due to the placement of the GOMOR in his OMPF;
   
   n.  in May 2007, the Department of the Army Evaluation and Suitability Board (DASEB) approved the applicant's request for transfer of the GOMOR to the restricted portion of his OMPF;
   
   o.  the DASEB's decision was forwarded to the U.S. Army Human Resources Command (HRC) on 5 June 2007; however, the GOMOR was maintained in his OMPF when the LTC PSB convened in September 2007, and was again not selected for promotion;
   
   p.  his consecutive deployments and lack of command support for attendance at the residency phase of ILE-CC while in combat prevented his attendance and/or completion of the residency phase of this course, and forced him to withdraw and transfer to the non-residency phase of this course;
   
   q.  it was the applicant's belief that the education waiver he received in August 2006 would remain effective for his use before all subsequent promotion boards while he remained deployed, because neither the waiver nor Army Regulation 135-155, the governing regulation, specified differently;
   
   r.  in January 2008, the applicant received his second non-selection for promotion to LTC and was informed separation action would be initiated;
   
   s.  having been deployed for 30 months, the applicant was required to immediately leave the combat zone;
   
   t.  the applicant demobilized in March 2008, was released from active duty  and transferred to the MOARNG on 18 May 2008, and began performing drills until he was transferred to the USAR in May 2009, where he is currently assigned with a unit in California.

3.  The applicant provides his counsel's statement and an indexed list of 26 enclosures.

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service, he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT) in the Quartermaster Corps on 17 August 1985.  He swore his oath of office in the California Army National Guard (CAARNG) and was granted temporary Federal Recognition on 17 August 1985.

2.  The applicant was promoted to:

* first lieutenant (1LT/O-2) on 16 August 1986
* captain (CPT/O-3) on 15 August 1992
* major (MAJ/O-4) on 21 August 2000

3.  He is currently serving in the USAR with his unit in Los Angeles, California.

4.  On 28 April 2003, the Commander, Headquarters, 91st Division (Training Support), Dublin, California, a major general (MG), issued the applicant a GOMOR for willfully entering McChord AFB, Washington, after Air Force security personnel ordered him not to enter.  The GOMOR shows:

* military police (MP) advised the applicant he did not have the proper identification papers for the rental vehicle he was driving
* the applicant ran the gate, placing himself and his passenger in danger
* the MPs pursued the applicant several blocks and apprehended him and the enlisted Soldier when he refused to stop
* dressed in his Army's major uniform, the applicant was defiant in front of military personnel and civilians

5.  The GOMOR reprimanded the applicant for:

   a.  demonstrating a flagrant disregard for the requirements of security, good order, and discipline on a military installation;
   
   b.  his reprehensible disrespect for air base security;
   
   c.  his conduct which embarrassed his command, the officer corps, and the Army before another Department of Defense agency; and
   
   d.  his lack of judgment.
   


6.  On 5 May 2003, the applicant acknowledged receipt of the GOMOR.  He also indicated:

* he read and understood the unfavorable information presented against him
* the GOMOR would be considered for filing in his OMPF
* he would submit a written rebuttal on his behalf

7.  In his rebuttal, the applicant did not dispute the circumstances that led to the issuance of his GOMOR and accepted full responsibility for his actions.  He also apologized for his actions and indicated he would never make that mistake again.

8.  The applicant further cited Army Regulation 600-37, chapter 3, which provides "honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF" and requested the reprimand be filed in his military personnel records jacket (MPRJ).

9.  On 28 July 2003, the Assistant Staff Judge Advocate (ASJA) for the applicant's unit recommended filing of the GOMOR in his OMPF.  The ASJA indicated that while the applicant cited the regulatory provisions of chapter 3, Army Regulation 600-37, this provision does not prohibit filing the reprimand in the OMPF.  He further stated "there is a legal sufficient basis to support the allegations in the reprimand."

10.  On 25 September 2003, the Commander, 91st Division, having considered all of the facts pertaining to the applicant's case and his rebuttal comments, directed that the GOMOR be filed in the applicant’s OMPF.

11.  On 10 March 2004, the applicant received notification of his enrollment in the Command and General Staff Officers Course (CGSOC), beginning 3 October 2004.  He was given 36 months to complete this 400 hour course.

12.  On 14 April 2004, the 653rd Area Support Group published Orders Number 04-105-00007.  It shows the applicant was ordered to active duty in support of OEF, for one year.

13.  Commander, Headquarters, U.S. Army Reserve Command, memorandum, dated 26 April 2004, provided a change to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers).  It shows "the military education requirement for promotion from MAJ to LTC will require the completion of the ILE course prior to selection for promotion.  This removes the requirement for completion of 50% CGSC."
14.  On 16 June 2006, the applicant received notification of his enrollment in the ILE-CC.  He was given 18 months to complete this 343 hour course.

15.  On 17 August 2006, the Chief, Office of Promotions, Reserve Components, granted the applicant a waiver for board purposes only of the military education requirement for promotion consideration to LTC.

16.  The Department of the Army Reserve Components Selection Board (RCSB) convened on 12 September 2006.  The applicant was considered for promotion to LTC but not selected.

17.  On 20 February 2007, the applicant petitioned to the DASEB for removal or transfer of the GOMOR from the performance portion to the restricted portion of his OMPF.  On 23 May 2007, the DASEB voted to transfer the GOMOR to the restricted section of his OMPF.

18.  The applicant was considered and not selected by the FY2007 and FY2008 RCSBs.

19. On 1 May 2010, the applicant submitted a request for promotion consideration to LTC by SSB under the 2006, 2007, 2008, and 2009 criteria.

20.  On 11 August 2010, the Chief, Special Actions Branch (SAB), DA Promotions, HRC responded to the applicant's request and provided the following reasons for denying his request for an SSB for the calendar year as indicated:

	a.  2006 - although educationally qualified with a waiver, two officer evaluation reports (OER), ending 18 April 2004 and 29 August 2006, were missing from his board file and an adverse document was seen in the applicant's OMPF;

   b.  2007 - the education waiver used before the 2006 LTC Promotion Selection Board does not carry forward for subsequent boards.  Because the applicant was not educationally qualified, the missing OERs ending 18 April 2004, 18 April 2006, 29 August 2006, and 31 July 2006 did not provide a basis for an SSB.  In addition, the DASEB’s decision to remove the GOMOR was not retroactive and therefore did not constitute a basis for referral to an SSB.
   
   c.  2008 - He was not educationally qualified for promotion by the FY 2008 LTC Selection Board and therefore the missing OERs from his record and continued filing of the GOMOR in his OMPF, subsequent to the DASEB's determination to remove it, did not constitute required consideration by an SSB.
   
   d.  2009 - he was not educationally qualified for the FY2009 LTC Selection Board, and as a result, the missing OERs ending 18 May 2008 and 3 May 2009, did not form a basis for promotion consideration by an SSB.  Finally, the chief indicated, once again, the applicant did not review his board consideration file when given the opportunity.

21.  On 17 June 2011, the applicant completed the ILE-CC course.  He was promoted to LTC on 3 January 2012.
   
22.  An advisory opinion, dated 20 November 2011, from the Chief, Officer Promotions Special Actions Branch, Department of the Army (DA) Promotions, HRC, Fort Knox, Kentucky, stated:

   a.  The applicant must first be recommended and approved for selection by a Department of the Army Promotion Selection Board, before being promoted to the next higher grade and as of this date, this has not occurred.
   
   b.  Each promotion board military personnel message establishes clear guidance and deadlines for submission of documents, OERs, waivers, and letters to the board; therefore, any documents received outside of the established limits are not considered cause for reconsideration and will not be approved without proof of due diligence by the officer.
   
   c.  Department of Defense Instructions 1320.11, paragraph 4.2 states an SSB shall not consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct that error or omission in which the original board based its decision against promotion.
   
   d.  Military education waivers for each board must be received and approved prior to the convene date of the board; also an approved waiver does not constitute constructive credit or any other equivalency for the military education requirement.  The applicant would not remain qualified for military education until the requirements of Army Regulation 135-155 table 2-2 are fully met.  Further review of the applicant’s OMPF board file and documents submitted affirms that a military education waiver was approved as an exception to policy for FY2006 only.  In 2009 and 2010 he submitted letters to the selection boards clarifying several years of nonrated time and also for noncompletion of the military educational requirement.
   
   e.  The advisory opinion recommended denial of the applicant's request for consecutive SSB FY2006 through November 2011.

23.  On 13 January 2012, the applicant's counsel responded to the advisory opinion restating the applicant's request and contentions.  He also stated that the applicant respectfully disagreed with the advisory opinion based on the following: 

	a.  the applicant continually exercised due diligence in his attempt to satisfy the educational requirement for promotion to LTC;

	b.  his commitment to service of the Nation cannot be denied and evidenced in his four mobilizations which only terminated when he was required to leave country after 30 months of service;

   c.  the administrative requirements of continuing military education and standard operating procedures of the promotion boards have not changed to reflect operational reality and at present are patently unfair and unjustly biased in favor of non-mobilized officers;

	d.  a lack of emphasis among commanders and senior leaders of the importance of military education and accompanying denial of on-duty time in order to complete the requirements;

   e.  the applicant was repeatedly told by his command that ILE was not the primary mission and his attendance was not supported;
   
   f.  intermediate military education was not available on line until 2005, and even then required hard-copy mail outs resulting in a logistical nightmare for deployed Soldiers receiving shipments of course materials in a combat zone;
   
   g.  the applicant is a Reserve officer and lengthy lag times occurred as paperwork was transferred between the different computer systems of the active component, USAR, and National Guard and was sometimes lost;
   
   h.  individuals voluntarily disenrolled from the Army War College for operational reasons are automatically re-enrolled in the next class and allowed to pick up where they left off in terms of course work; 
   
   i.  the SAB, HRC does not assist officers in rectifying problems in their promotion files as evidenced when the SAB took no action to notify the applicant the waiver he submitted before the 2007 PSB was invalid or that he was educationally unqualified;
   
   j.  had the applicant been promoted to LTC by the 2006 PSB, he would have competed for promotion to colonel (COL/O-6) in 2010 and upon promotion to this rank, his current mandatory removal date (MRD) would have been extended; and
   k.  he be given promotion consideration to the rank of COL.

24.  Army Regulation 135-155 states promotion consideration reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.

25.  DA policy regarding military education waivers are contained in a 31 August 2006, Office of the Deputy Chief of Staff, G-1 Memorandum, Subject:  Reserve Component Promotion Board Military Education Waiver Guidance.  It states, in pertinent part, that for LTC promotion boards, the military education requirement is 50% completion of legacy CGSOC or 100% completion of ILE-CC or equivalent.  In order to be eligible for a waiver, the officer must have completed at a minimum Phase I and Phase II of ILE-CC.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's admission to committing the offense which led to the issuance of the GOMOR.  By running the gate at McChord AFB, he displayed a flagrant disregard and disrespect towards the United States Air Force as well as their security personnel, the United States Army, the Soldier he was attempting to assist, and all others present.  He also placed his Soldier, himself, and other witnesses in clear and present danger as a result of being pursued by the AF Security personnel.  The issuance of the GOMOR is very well substantiated, no matter the reason for the offense he committed in this case.  Accordingly, there is no basis for retroactive removal of the GOMOR from the applicant's record prior to the DASEB's directive in May 2007.

2.  The applicant and his counsel also contend the applicant did not receive all of the enclosures listed on the GOMOR for his review and/or rebuttal and as such he did not receive due process.  The evidence of record shows the applicant 
signed for and acknowledged receipt of the GOMOR when it was issued.  There is no evidence and he has failed to provide any evidence to confirm he did not receive the enclosures listed on the GOMOR, nor is there any evidence to show he raised this issue during his receipt of this document or during the filing phase of the GOMOR.  As a result, due process is presumed.

3.  The applicant's contention that he was unaware the 2006 educational waiver was only valid for that one board has been considered and found to be without merit.  While the governing regulation does not stipulate the waiver was only good for the 2006 selection board, it also does not indicate that it was valid for any subsequent boards.  As a field grade officer in the rank of MAJ, he is responsible for his military career and should have known this information.

4.  The evidence of record further confirms that subsequent to the DASEB's decision to move the GOMOR to the restricted section of the applicant's OMPF in May 2007, it had been erroneously seen by the FY 2007 and 2008 LTC PSBs.  However, while the GOMOR should have been removed, at least prior to the convening date of the FY2008 LTC PSB, the applicant still remained educationally unqualified for promotion to LTC through May 2011.  He completed ILE on 17 June 2011 and was promoted to LTC on 3 January 2012.  Therefore, there is no basis for granting him promotion consideration by an SSB under the FY 2006, 2007, 2008, and 2009 selection criteria.  In addition, the earliest date he would be eligible for promotion to COL based on his date of rank for promotion to LTC is 3 January 2015.  Accordingly, there also is no basis upon which to grant the applicant's request for promotion consideration to COL.

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)                                         AR20110016774





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ABCMR Record of Proceedings (cont)                                         AR20110016774



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