IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20110017028 


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 through his counsel:

	a.  He be allowed to appear before the Army Board for Correction of Military Records (ABCMR);

   b.  The DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)), dated 16 February 2006, be retroactively removed from his official military personnel file (OMPF) as of the date his Article 15 punishment was completed in October 2007;

	c.  The DA Form 268, dated 2 September 2008, be retroactively removed from his OMPF as of the date of issue;

	d.  Any reference to a Board of Inquiry (BOI) be removed from his OMPF;

	e.  He be given the opportunity to attend the Captain's Career Course;

	f.  His two non-selections for promotion to major (MAJ/O-4) be removed from his record and he be referred to a Special Selection Board (SSB) for both promotion selection boards where he was non-selected after completion of the captains career course; and

	g.  He be reinstated in the U.S. Army Active Guard Reserve (AGR) to the rank of captain (CPT/O-3) with all back pay, allowances, and time in grade (TIG) credited from the date of separation.
2.  In a supplemental statement prepared by his counsel, the applicant states:

	a.  Army regulations required that the non-transferable flag, dated 
16 February 2006, be removed from his OMPF once the U.S. Army completed the Article 15 action and punishment against him in October 2007;

	b.  Per Army regulations, the non-transferable flag, dated 2 September 2008, illegally and unjustly remained in his OMPF while the U.S. Army delayed the BOI in violation of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-6;

	c.  The illegal and unjust delay of the BOI for over one year and seven months and associated flag, dated 2 September 2008, substantially prejudiced his rights and abilities to develop his military career and compete against his peers for promotion to MAJ, causing the promotion selection board to unjustly pass over him twice for promotion to MAJ; and

	d.  Alternatively, the non-transferable flag, dated 2 September 2008, should have been removed once the U.S. Army discharged him on 28 October 2010.

3.  The applicant, through counsel, submits the evidence listed on page 17 of his supplemental statement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of applicant:

* Both flagging actions be retroactively removed from applicant's OMPF
* The 2 non-selections for promotion to MAJ be removed from applicant's OMPF
* Reinstatement in the AGR to the rank CPT with back and allowances
* TIG credit from the time of separation
* Attendance at the Captain's Career Course
* Referral to a Special Selection Board (SSB) after attending the Captain's Career Course

2.  Counsel states the Army should be held liable for its actions it could reasonably have known violated the applicant's rights.  The applicant should receive the reasonable relief resulting from the U.S. Army's failure to provide timely processing in this case.  The U.S. Army should have reasonably known that never completing a BOI for nearly two years and leaving a flag in the applicant's OMPF during the entire time period would affect applicant's abilities to advance his career, compete against his peers, and be selected for promotion.
CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in the AGR program on 15 June 2003.

2.  His OMPF contains a DA Form 2627 (Developmental Counseling Form), dated 6 October 2005, which shows that while attending the Army Logistics Management College (ALMC), Combined Logistics Captains Career Course (CLC3) he voluntarily disenrolled from the course after failing his initial exam.  Although he was afforded the opportunity to attend a later class, he stated he was not prepared to be successful in the course and elected to disenroll and return to his unit at Camp Blanding, FL.  The Deputy, Assistant Commandant, Reserve Corps, informed the applicant that his failure to successfully complete the CLC3 during his initial AGR tour would inevitably result in his release from active duty (REFRAD) within 90 days of his notification or no later than the end of his initial tour.  

3.  On 1 February 2006, he requested continuation in the AGR program stating that his failure to complete the CLC3 had been an error and lack of better judgment.  His request was approved and he was placed on indefinite status.

4.  On 16 February 2006, his battalion commander notified the applicant that he was initiating a flagging action against him based on the receipt and preliminary review of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation in regard to integrity violations concerning fraudulent travel vouchers within the unit.  His commander further informed the applicant of the temporary suspension of his security clearance.

5.  A DA Form 268, dated 24 February 2006, shows he received a non-transferable, adverse action flag, effective the same day.  This document is currently located on the Human Resources Command Integrated Web Services (IWS), Soldier Management System (SMS) transaction record, but is not filed in his OMPF.

6.  The Army Regulation 15-6 investigation results and recommendations were not available for review; however, upon review of his OMPF, it was determined that the investigation was conducted between around December 2005 through around July 2007 based on numerous sworn statements collected by two different investigating officers during this period.

7.  On 27 October 2007, he accepted nonjudicial punishment (NJP) for conspiring with another Soldier on various occasions between August 2005 and
December 2005, to commit the offense of larceny under the Uniform Code of Military Justice (UCMJ) by creating a false rental voucher and presenting a claim the Defense Finance and Accounting Service (DFAS) for reimbursement in the value of about $6,180.00.  His punishment consisted of forfeiture of $2000.00 pay per month for two months.  The DA Form 2627 was directed to be filed in the performance section of his OMPF.  The applicant did not appeal the punishment.  The document was filed in his OMPF on
9 November 2007.

8.  His pay records were not available to determine when the forfeiture was completed but on 18 February 2008, the adverse action flag was removed and the reason cited was - "disciplinary action taken."

9.  The SMS contains notes between the applicant and his career manger which show he was scheduled for the Captains Career Course on at least two separate occasions but was not eligible for attendance because his security clearance was never reinstated.

10.  A "nontransferable flag" for "elimination-field initiated" was placed on the applicant, effective 15 August 2008.  His unit of assignment is shown as the U.S. Army Human Resources Command, Army Reserve Active Duty Management Directorate (AHRC, ARADMD).

11.  On 2 September 2008, in conjunction with the flagging action, the commander AHRC, required him to show cause for retention on active duty under the provision of Army Regulation 600-8-24, paragraphs 4-2b(5) and 
(8) and 4-2c (5), for misconduct and derogatory information.  The notice informed applicant that he could receive an Under Other Than Honorable Conditions Discharge as a result of the elimination action.  He acknowledged receipt on 
3 September 2008.  After receiving advice from a military defense attorney, he elected to submit statements on his own behalf and to present his case before a BOI to show cause for retention.

12.  In his rebuttal, dated 22 September 2008, he stated that he joined the Army on 30 September 1987 because he wanted to serve his country and make a difference in his life.  He contends the matter in which he was being considered for elimination is an anomaly in his very diverse military career.  He included letters of recommendations as a testament to his service.  His brigade commander, battalion commander, and executive officer all recommended he be retained in service.

13.  It is unclear why the BOI process was delayed, but on 10 March 2010, in a memorandum from AHRC, his commander was informed that involuntary separation proceedings had been initiated on 2 September 2008 based upon his receiving an Article 15 for larceny.  Further, the applicant had been notified on the rights afforded to him on 8 October 2009 and had responded with a rebuttal.

14.  An email, dated 18 March 2010, from the AGR Special Actions Office informed the applicant's unit that the BOI must be completed no later than 
10 June 2010 and the proceeding forwarded to the general officer show cause authority (GOSCA) no later than 30 calendar days after the board's adjournment.   In addition, the Special Actions Office was to be notified when the BOI proceedings had been mailed to the appropriate agency for tracking purposes.

15.  The applicant was considered and not selected by the following Major, Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR AGR), and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Army Promotion List (APL) Competitive Categories, Promotion Selection Boards:

* Fiscal Year (FY) 2008, below the zone
* FY 2009 - convened 9 March 2009 
* FY 2010 - convened 2 March 2010 

16.  The applicant’s OERS closing out in June 2006 through June 2010 indicated he achieved “satisfactory performance.”  He was not rated as an “outstanding” performer on any of the OERs.  He also had a record of nonjudicial punishment in his record at the time these boards met.   

17.  On an unknown date, he was notified of his second non-selection and advised that he would be released from active duty no later than 120 days after receipt of the notification.  The board did not provide a specific reason for non-selection.  On 7 July 2010, he acknowledged receipt and elected to be transferred to the U.S. Army Reserve Control Group (Reinforcement).

18.  An email, dated 22 July 2010, from the AGR Special Actions Office, notified the applicant's unit that he currently had two actions pending: (1) second non-selection for promotion (2) elimination action.  His unit was told to continue to process both actions and to provide the results of the BOI.

19.  He was involuntarily released from active duty effective 28 October 2010, under the provisions of Army Regulation 600-8-24, paragraph 2-41, based on his non-selection for a permanent promotion to major.  On 16 May 2011, he was transferred to the Retired Reserve.  

20.  The ABCMR analyst conducted a complete review of the applicant's OMPF and found no record of any DA Forms 268 or references to BOI proceedings on his OMPF.  However, his IWS record has information relating to both actions.

21.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, stating the applicant was not entitled to reconsideration of promotion by an SSB because flagging information is not furnished or considered during the Promotion Selection Board Process.  Further, had the applicant reviewed and certified the list of documents contained in his board file as accurate prior to the convening of the promotion selection board and he would have affirmed this.  The applicant acknowledged that a promotion selection board has no knowledge that a service member is flagged when it considers promotion (Supplemental Statement, paragraph 26.)  The advisory opinion confirmed that no flagging actions contained in the applicant’s OMPF.

22.  In his rebuttal to the advisory opinion the applicant reiterates his original argument that over a period of approximately two years he remained flagged pending the outcome of his BOI which was never completed.  During this period of time he was unfairly and unjustly passed over twice for promotion resulting in his discharge.  He further contends the flagging action was in fact in his file because it prevented him from obtaining a Troop Program Unit (TPU) assignment.  He requested the board consider the facts and evidence and come to a reasonable and clear decision.

23.  The applicant provided OERs for the period 15 June 2009 through 
14 June 2010.  The reports rendered his performance as satisfactory and found that he was fully qualified for promotion.

24.  In addition he provided email correspondence which shows:

   a.  On 20 May 2011, the applicant was informed by the Logistic Assignment Officer, AHRC, that the flag initiated on 15 August 2008, was transferable and should remain.  The assignment officer stated that it was explained to him by the Personnel Action Branch, that the flag was initiated as a result of an elimination action based on the Article 15 the applicant received for conspiracy.  The applicant's elimination packet and subsequent BOI were initiated by AHRC but not completed by his unit.  The BOI was "lost" and as AHRC was preparing to restart the BOI process the applicant became a second time non-select for promotion to major and he was issued orders releasing him from active duty.  Nevertheless, because the BOI was never completed the flag remained in place in order to prevent him from coming back into the military.

	b.  He submitted emails from a MAJ K.  One indicated that a flag remained “to prevent you from coming back in the Military.”  The second email, from the same officer, informs the applicant that he does not have issues with him joining a TPU and deploying.  The officer points out that the applicant was a two-time non-select for promotion and was not recommended for selective continuation; therefore, AHRC Military Schools policy is to not fund professional development education.  MAJ K suggests the applicant either obtain a waiver or alternatively have his TPU fund his education.  

25.  The Integrated Web Services (IWS) is a web-based collection of data, applications, and tools to assist Career Managers and other Human Resource Personnel in supporting Soldiers, with its principal IWS application being the Soldier Management System (SMS).

26.  The promotion board will utilize the My Board File (MBF) application which is comprised of the official photograph, officer record brief, and documents from the performance section of the OMPF.

27.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), the military education (MILED) requirements for promotion selection to MAJ are outlined in Table 2-2.  MILED and civilian education must be completed no later than the day before the board convenes.  The MILED requirement is completion of any officer advance course.  Officers not educationally qualified will not be selected for promotion.28.  The regulation states:

	a.  Paragraph 3-12 states the Secretary of the Army will provide guidance and instructions in a memorandum of instructions to the promotion selection board.  Additionally, paragraphs 3-12c(3) state the following items, which are not part of the OMPF of an officer being considered for promotion, will not be given to a board:  memoranda that criticize or reflect on the character, conduct, or motives of any officer under consideration by the board unless otherwise authorized by this regulation and/or memoranda forwarded directly to the board by other parties on behalf of any officer except when provided as an enclosure to a memorandum from the officer being considered.

   b.  Paragraph 3-19 states an SSB may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers an officer was not considered because of administrative error or the officer's record contained some material information.



28.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions):

	a.  Paragraph 1-12 specifies the circumstances requiring a non-transferable flag.  It prescribes that a flag will be initiated when a Soldier is under charges, restraint, or investigation.  The flag will be removed when the Soldier is released without charges, charges are dropped, or punishment is completed.  Further, a field-initiated elimination flag will be removed when the Soldier is reassigned to a transition point; and

   b.  Paragraph 1-14 states an individual under a flag is prohibited from being promoted.

29.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  It states in paragraph 
4-6:

   a.  The purpose of a BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition consistent with this regulation.

   b.  The BOI will be completed no later than 120 calendar days from the date the GOSCA is notified by AHRC to conduct the Board of Inquiry or on a GOSCA initiated elimination, 90 days from the date the GOSCA directs that a BOI be conducted.  Whenever completion of the BOI is delayed beyond the established time, the GOSCA will notify CDR, AHRC by electronic message of the reason for the delay and the projected date for the BOI to be completed.  The regulation does not require abatement of the elimination action due to delay in processing the elimination action.  

30.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) states the DA Form 268 will be filed in the action pending section of the Military Personnel Records Jacket (MPRJ) until a specific action is finished.  After completion of required actions, the DA Form 268 is to be removed.  This regulation provides no directions for or an authority for the filing of the DA Form 268 in the OMPF.
31.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Section IV contains guidance on hearings and dispositions of applications.  It states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel requests:

* all references to the flagging actions, dated 16 February 2006 and 
5 August 2008 be removed from his OMPF
* any references to a BOI be removed from his OMPF
* he be reinstated into the AGR as a CPT with back pay and allowances and TIG credited from the date of separation
* the opportunity to attend the captain's career course subsequent to appearance before an SSB

2.  In regard to removing the two flagging actions and BOI references from his OMPF, these documents are not filed in his OMPF but are listed as entries in IWS.  These entries are essentially career management personnel notes.  There are no regulatory provisions pertaining to the removal of such notes found in IWS; therefore, relief is not appropriate on this issue.

3.  There is no evidence to support counsel's contention that the applicant was improperly flagged.  It is clear the BOI process was improperly managed and the complete facts and circumstances as to why the action was never completed cannot be determined; however, the failure to complete the board was not the reason for the applicant's involuntary separation.  The governing regulation does not require an elimination action to be abated due to delays in processing.  The applicant was represented by a military defense counsel in the BOI process.  There is no available evidence showing that he or his counsel attempted to expedite the process.  He ultimately benefited from the delay in the BOI in that it eventually was abated, removing any jeopardy of receiving a stigmatizing discharge.

4.  The evidence shows:

   a.  After failing the initial examination and retest, he was declared an academic failure in October 2005.  He declined the opportunity to be recycled and voluntarily withdrew from CLC3.  By his own admission he was not prepared to successfully complete the course and wanted to return to his unit rather than attend the following class.  His academic failure during his initial AGR three-year assignment led to his notification of release from active duty.  He appealed and was retained on active duty.

	b.  On 16 February 2006, he was flagged for adverse action awaiting the outcome of an Army Regulation 15-6 investigation in regard to violations concerning fraudulent travel vouchers within the unit.

	c.  On 27 October 2007, he accepted nonjudicial punishment for committing larceny valued at $6,180.00.  On 18 February 2008, after the completion of his punishment the adverse action flag was removed.  He attempted to attend the CLC3 but was denied enrollment due to his suspended security clearance.
	
	d.  As a direct result of his UCMJ action he was flagged on 15 August 2008 for elimination.  The flag was initiated by AHRC and according to regulatory guidance remains in place until removed by AHRC.  On 3 September 2008, he acknowledged receipt of his involuntary separation memorandum and elected to present his case before a BOI to show cause for retention.  He provided a rebuttal which included letters of recommendation from his chain of command.  The record shows that the BOI was not completed within the 120 day time frame and it appears that AHRC did not inquire on the status on the BOI until 18 March 2010.  During this time he remained flagged and without a valid security clearance and thus was ineligible to attend military schooling (CLC3), which is a requirement for promotion to major.  He was twice non-selected for promotion during this period resulting in his involuntary separation on 28 October 2010.

   e.  Although his counsel contends the applicant was not afforded his due process in regards to the BOI, the applicant conceded that a promotion board would not have knowledge of the flag because he reviewed/approved his board file which did not contain a flagging action.  His failure to be selected for promotion to major on two occasions was more likely than not a result of his performance record and the Article 15 punishment in the performance section of his record.  His alleged harms are mere speculation in light of the mediocre performance record that was before the promotion board.

5.  The BOI process was clearly mishandled.  It never should have taken 
18 months to initiate only to be ''lost."  However, the elimination flag was imposed against the applicant as the result of his acceptance of nonjudicial punishment and was by no means erroneous.  As noted by the advisory opinion and conceded by applicant, flag information is not provided to a promotion selection board.  While flagged he was not eligible to complete military education.  However, he was not flagged when he was initially an academic failure and withdrew from training.  His OERs were not top notch and he had an Article 15 in his record.  The greater weight of the evidence suggests that his overall record of service and performance may simply have made him less competitive for promotion.  Consequently, he was twice non-selected for promotion to MAJ resulting in his involuntary separation which was accomplished in accordance with applicable regulation and statue.

6.  He alleges that a flag in his OMPF prevents him from reentering the Army Reserve and he submitted emails from MAJ K, his career manager, which indicated that a flag remained to prevent him from coming back in the Military.  However, a second email from his career manager informed the applicant that he could join a TPU and deploy but his military education would have to be funded by his TPU because policy prevented AHRC from funding military education when an officer was twice non-selected.  As discussed above, his OMPF does not contain a flag and this reference to a "flag" is essentially an administrative note located in SMS used by career managers.  Conversely, his record does contain ample evidence why an Army Reserve unit may decline his request to join.  He was an academic failure, had received Article 15 punishment, and had only a satisfactory performance record.  These obstacles may have proven too great to overcome to allow his reentry.

7.  Applicants do not have the right to a formal (personal appearance) hearing before the ABCMR.  The Director or the ABCMR panel may grant a formal hearing whenever justice requires.  In this case, the evidence of record and evidence submitted by the applicant is more than sufficient to arrive at a just and impartial decision.  As a result, justice does not require the applicant's presence before the ABCMR.  Therefore, there is no evidentiary basis to support granting the applicant's request to personally appear before the Board.

8.  The applicant has not shown by a preponderance of the evidence that his discharge was in error or unjust.  As such his request should be denied.

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)                                         AR20110017028



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ABCMR Record of Proceedings (cont)                                         AR20110017028



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