IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110019977 


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:

* first lieutenant (1LT) from May 2009 to November 2008
* captain (CPT) from March 2011 to June 2010

2.  The applicant states:

* on 8 August 2008, her battalion commander notified her that she was suspended from her position as a platoon leader; she was also issued a no contact order
* she was pending an investigation into allegations of inappropriate conduct; this investigation concluded on 12 August 2008
* she was reprimanded by her brigade commander on 21 August 2008; she also received a referred officer evaluation report (OER)
* she rebutted the OER because it did not accurately reflect her duty performance; her command used the OER as a tool to further punish her
* nevertheless, she focused on staying positive and remained committed to her mission
* when she was not promoted with her peer group, she discovered that the flag that was initiated at the time of the investigation was never removed
* when she received the no contact order, she was not informed of the flag; if she had known of the flag, she would have sought to have it removed
* she was not given the opportunity to have the flag removed because her commander did not inform her that he had initiated a flag
COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests adjustment of the applicant's effective date and DOR as a 1LT from May 2009 to November 2008 and as a CPT from March 2011 to June 2010.

2.  Counsel states:

* The applicant's record was flagged because of a pending investigation; although she had been aware of the investigation, she was unaware of the flag
* When the investigation was completed, she was reprimanded but the flag was not timely removed which resulted in a delay of her promotion
* The investigation did not find an inappropriate relationship between her and a junior enlisted Soldier but the brigade commander determined the circumstances warranted the reprimand
* She also received a referred OER that exaggerated the findings and diminished her achievements
* Her rating officials tied her off duty conduct to 3 months of rated performance; she received multiple negative comments while her achievements were not mentioned
* After the incident, she took over an assistant operations officer position during which she excelled and flawlessly accomplished her mission
* She subsequently deployed to Afghanistan where she again performed flawlessly and demonstrated professional growth
* She received unjust and unfair treatment by her chain of command

3.  Counsel provides:

* Memorandum of Reprimand
* Investigating Officer (IO) Appointment Memorandum
* Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) Findings and Recommendations
* DA Form 1574 (Report of Proceedings by IO/Board of Officers)
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* DA Forms 67-9 (OER) for 20080502 through 20080825, 20080826 through 20090607, and 20090607 through 20100606
* Applicant's self-authored statement
* Notification of Suspension of Duties Memorandum
* No Contact Orders Memorandum
* Rebuttal to the referred OER
* Statement of support from a major
CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was appointed as a Regular Army second lieutenant and executed an oath of office on 26 May 2007.  She completed the Military Police (MP) Basic Officer Course and she was assigned to the 118th MP Company (Airborne), Fort Bragg, NC.  

2.  On 7 August 2008, the Commander, 503rd MB Battalion, Fort Bragg, NC, appointed an IO to conduct and informal investigation into allegations of inappropriate relationship between the applicant and a junior enlisted Soldier, specialist (SPC) Kxxx. 

3.  On 8 August 2008, she was ordered temporarily suspended from her duties as a platoon leader in the 118th MP Company, pending the results of the investigation for an inappropriate relation.  Also on the same date, she was ordered to cease and desist in any and all contact or communication with all Soldiers assigned to the 118th MP Company (except the company commander). 

4.  The IO determined that the applicant did in fact invite three junior Soldiers to her apartment for drinks after a night at the bar; however, other than the statement by one of the three Soldiers, there was no evidence the applicant and SPC Kxxxx engaged in a sexual relationship.  

5.  The IO recommended the applicant not be allowed to remain in her current position as a platoon leader and he opined that her actions on that night damaged her standing and credibility with many of her own Soldiers and that the damage was most likely beyond repair.

6.  On 21 August 2008, the applicant was reprimanded by her brigade commander for fraternization and demonstrated poor judgment.  The reprimand stated that her actions caused the brigade commander to question her judgment and ability to lead.  He lost confidence in her leadership ability and questioned her potential to serve as a commissioned officer.  

7.  During the month of August 2008, the applicant received a change of rater OER which covered 4 months of rated time from 2 may 2008 through 25 August 2008 for her duties as a platoon leader.  Her rater was a CPT, the company commander, and her senior rater was a major, the battalion commander. The OER shows the following entries:

* In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for "Honor"
* In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for the appropriate attributes and actions; however, he placed an "X" in the "No" block for "Decision Making" skills
* In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered supporting comments in Part Vb
* In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" and entered the supporting comments

8.  The contested OER was referred to the applicant and she provided a rebuttal wherein she highlighted her achievements and contended that the alleged infraction was a violation of the Army regulation and that not a single Army value was violated.

9.  She was reassigned on 26 August 2008 to the Office of the Fort Bragg Provost Marshall Office (PMO) as an assistant operations officer.  She received an OER through 7 June 2009 that reflected a rating of "Outstanding Performance – Must Promote" by her rater and a rating of "Best Qualified" by her senior rater.  

10.  On 18 May 2009, the U.S. Army Human Resources Command (HRC), Alexandria, VA, issued Orders Number 138-003 promoting her to 1LT with an effective date and DOR of 19 May 2009.

11.  She was reassigned on 7 June 2009 to the 16th MP Brigade, Afghanistan, as an assistant plans officer.  She received an OER through 6 June 2010 that reflected a rating of "Outstanding Performance – Must Promote" by her rater and a rating of "Best Qualified" by her senior rater. 

12.  On 29 March 2011, HRC, Fort Knox, KT (HRC-KNX) issued Orders Number 088-024 promoting her to CPT with an effective date and DOR of 10 March 2011.  She had been selected for promotion to CPT by the Fiscal Year 2011 Captain Army Selection Board. 

13.  She submitted a statement, dated 14 May 2009, from a major who states that the applicant demonstrated her dedication to mission accomplishment and maintained a positive and a winning attitude. 





14.  An advisory opinion was obtained from HRC-KNX on 9 December 2011 in the processing of this case.  The Chief of Officer Promotion recommended disapproval to adjust her 1LT and CPT DORs.  He stated:

	a  The delay in promotion was in accordance with Army Regulation (AR)    600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) and AR 600-8-2 (Officer Promotions).  A flag is mandatory when a formal or an informal investigation is initiated and the flag should be removed when the punishment is completed.  In the case of reprimand, not administered as nonjudicial punishment, the flag is removed upon completion of filing instructions. 

	b.  However, a flag is not the only action that can delay a promotion to 1LT.  The promotion approval authority is a lieutenant colonel or higher commander.  If the commander denies promotion to 1LT, the denial will be held in abeyance for 6 months.  If at the end of the 6 months promotion is still denied, the promotion review authority (normally the first commander with general court-martial authority) must make a determination whether or not to promote the officer.  If the approval authority decides to promote the officer during the abeyance period, the date of rank and effective date will be the date the decision is made.

	c.  A review of the Automatic Promotion System shows the applicant's promotion approval authority disapproved her automatic promotion.  The disapproval was entered in eMILPO by the Brigade Military Technician.  On 18 May 2009, the promotion approval authority signed a memorandum to HRC recommending her for promotion to 1LT effective 19 May 2009.  The promotion authority did not recommend her for promotion on her original promotion date nor following the date following the removal of the flag on 7 March 2009. 

15.  The applicant was provided with a copy of this advisory opinion but she failed to respond. 

16.  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 appointed in the Regular Army on 26 May 2007.  Normal promotion to 1LT requires 18 months time in grade.  She was eligible for promotion to 1LT on 18 November 2008.  However, she was under investigation in August 2008 and she received a memorandum of reprimand on 21 August 2008.  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.

2.  By regulation, if the commander denies promotion to 1LT, the denial will be held in abeyance for 6 months.  If at the end of the 6 months promotion is still denied, the promotion review authority must make a determination whether or not to promote the officer.  If the approval authority decides to promote the officer during the abeyance period, the date of rank and effective date will be the date the decision is made.

3.  Her records show the promotion approval authority disapproved her automatic promotion and the disapproval was entered in eMILPO.  Although her flag was removed on 7 March 2009, the promotion authority did not recommend her for promotion on her original promotion date nor following the date of the removal of the flag on 7 March 2009.  The promotion approval authority recommended her for promotion to 1LT effective 19 May 2009.  Accordingly, she was issued a promotion order promoting her on that date. 

4.  Based on her May 2009 DOR, she was considered and selected for promotion to CPT by the CPT 2011 promotion selection board and she was promoted to CPT on 10 March 2011.  Since she is not entitled to an earlier DOR to 1LT, she would not be entitled to an earlier consideration for promotion to CPT.

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)                                         AR20110019977



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ABCMR Record of Proceedings (cont)                                         AR20110019977



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