IN THE CASE OF: 

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120000734 


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:

	a.  removal of all records pertaining to the Suspension of Favorable Actions (FLAG) for the period 8 February 2007 to 21 January 2009;

	b.  correction of his promotion date to major (MAJ)/O-4 to the earliest possible date based on selection under the 2008 Army Promotion List (APL) criteria;

	c.  reinstatement on active duty in the Active Guard Reserve (AGR) program with no break in service, effective 11 November 2009; and

	d.  payment of all lost leave, pay, and benefits resulting from periods not on active duty since 11 November 2009.

2.  He states:

	a.  the FLAG in question resulted from the initiation of elimination action, dated 8 February 2007, under the provisions of Army Regulation 600-8 (Military Personnel Management).

	b.  the FLAG and elimination actions were a direct result of the General Officer Memorandum of Reprimand (GOMOR) and Relief for Cause Officer Evaluation Report (OER) received in June 2006 as cited in the notification 


memorandum received from the Commander, U.S. Army Human Resources Command (HRC).  Each of these documents have been removed by a subsequent OER appeal and Army Board for correction of Military records (ABCMR) proceedings that determined the information from the Inspector General (IG) investigation was improperly used as the basis for both documents.  He states the documents and records related to the GOMOR and OER, including the flagging action, should have been removed from his personnel records.

	c.  he was initially promoted to MAJ with an effective date of 29 June 2010.  Based on the determination of the previous ABCMR case regarding the GOMOR, his promotion file was sent before a Special Selection Board (SSB).  He was selected for promotion by the SSB under the 2008 APL.

	d.  due to his FLAG on record from 8 February 2007 through 21 January 2009, his date of promotion was determined to be 21 January 2009.  The removal of the FLAG will enable correction of the adjusted promotion date to approximately 1 September 2008 and entitlement to back pay of all leave and earnings to the new promotion date.

	e.  he was separated from active duty in the AGR program on 9 November 2009 for non-selection for permanent promotion.  As a result of successful OER appeals, ABCMR corrections, SSB selection, and adjusted promotion dates, his record reflects permanent promotion prior to his separation date from active duty.  He requests reinstatement on active duty as part of the AGR program with an effective date of 9 November 2009 with reinstatement of all lost leave and payment of all lost pay and benefits for the periods of time not on active duty.

	f.  he was mobilized as a Reservist on 23 November 2009 to 8 November 2010 and again on 3 January 2011 to the present.  His current period of active duty is scheduled to end on 2 January 2013.

3.  He provides 20 enclosures as identified in his index.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty for operational support as a member of a Reserve unit in the rank of MAJ.

2.  The applicant was appointed as a Reserve commissioned officer on 17 June 1994 in the rank of second lieutenant.

3.  He was promoted to first lieutenant on 1 October 1996 and to captain on 30 September 2001.
4.  He was ordered to active duty from 27 January to 21 May 2003 in support of Operation Enduring Freedom.

5.  On 22 June 2003, he was ordered to active duty in an AGR status.  He served in Iraq from 1 November 2005 to 30 July 2006.

6.  On 8 February 2007, he was notified of initiation of elimination action under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges).  He was informed he was required to show cause for retention on active duty and a FLAG had been initiated under the provisions of Army Regulation 600-8-2 (Suspension of Flags).  

7.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) indicates he was flagged on 8 February 2007.

8.  On 9 April 2007, he acknowledged receipt of the memorandum recommending his involuntary separation from active duty and he elected to make a statement in his behalf.  

9.  A review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) did not reveal any documents pertaining to the flagging action. 

10.  On 9 October 2008, the Army Special Review Board (ASRB) removed the applicant's Relief for Cause OER for the period 22 September 2005 through 22 April 2006 from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  The ASRB also determined that all associated appeal documentation and any directly-related investigations or inquiries relating to the OER in question should be removed from the applicant's AMHRR.

11.  In an undated memorandum, the commanding general at HRC, Alexandria, VA, notified the applicant that the initiation of elimination action issued to him on 8 February 2007 was withdrawn.

12.  A second DA Form 268 indicates his FLAG was removed on 21 January 2009.  

13.  On 10 November 2009, the applicant was honorably released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-37 by reason of non-selection, permanent promotion and he was transferred to the 
U.S. Army Reserve (USAR) Control Group (Reinforcement).

14.  Orders C-11-921328, issued by HRC, St. Louis, MO, dated 20 November 2009, released him from the USAR Control Group (Reinforcement) and reassigned him to the 653rd Combat Support Group effective the same date.

15.  On 23 November 2009, he was ordered to active duty in support of Operation Iraqi Freedom.  He served in Kuwait from 4 December 2009 to 19 October 2010.

16.  Orders B-06-004262, issued by St. Louis, dated 29 June 2010, promoted the applicant to MAJ with an effective date and DOR of 3 June 2010.

17.  On 27 July 2010, the ABCMR corrected the applicant's record by:

	a.  removing the 17 July 2006 GOMOR and all related documents from his AMHRR;

	b.  removing the Department of the Army Suitability Evaluation Board (DASEB) denial and all related documents from his AMHRR;

	c.  filing the ABCMR Record of Proceedings, dated 27 July 2010, in the restricted section of his AMHRR;

	d.  placing his corrected record before an SSB for consideration for promotion to MAJ under the criteria used by the promotion selection board that viewed his record with the removed OER for the period 22 September 2005 through 22 April 2006 and the GOMOR in question;

	e.  if selected for promotion under earlier criteria by the SSB, adjust his current 3 June 2010 promotion effective date and date of rank (DOR) to MAJ accordingly and providing him all back pay and allowances due as a result; and

	f.  if not selected by an SSB under earlier criteria he should be so notified.

18.  He was released from active duty on 8 November 2010 and he was reassigned to the 653rd Combat Support Group.

19.  Orders 10-348-00031, issued by Headquarters, 63rd Regional Support Command, CA, dated 14 December 2010, released him from his Reserve component unit, effective 6 December 2010, and reassigned him to the USAR Control Group (Reinforcement).

20.  Orders A-12-034641, issued by HRC, Fort Knox, dated 17 December 2010, ordered him to active duty for operational support, effective 3 January 2011.
21.  In a memorandum from HRC, Fort Knox, dated 8 September 2011, a Human Resources Technician, Office of Promotions (Reserve Component), informed the applicant that the SSB that adjourned on 8 March 2011 selected him for promotion to MAJ under the 2008 criteria.  Orders B-09-106199, issued by HRC, Fort Knox, dated 8 September 2011, promoted him to MAJ with an effective date and DOR of 21 January 2009.  Orders B-06-004262, dated 29 June 2010, previously promoting him to MAJ, were subsequently revoked.

22.  NGR 600-5 (The Active Guard/Reserve (AGR) Program, Title 32, Full-Time National Guard Duty (FTNGD)) prescribes policies and procedures for managing ARNG Soldiers in the AGR program who serve on FTNGD under the provisions of section 502(f) of Title 32, U.S. Code.  Chapter 6 proves for separation as it relates to release from FTNGD.  The State Adjutant General will be the final separation authority.  AGR Soldiers will be separated without board action for reasons stated below in paragraph 6-4 regardless of the expiration dates of their current periods of duty.  Separation for cause procedures need not be used.  Soldiers will be given at least 30 days of notice of separation.  

23.  Paragraph 6-5 provides for separation for cause.  AGR Soldiers will be involuntarily separated for cause from FTNGD in accordance with this paragraph. Adjutant Generals would review all recommendations for separation under this paragraph and will make the final determination.  This authority will not be delegated.  Reasons for involuntary separation under this paragraph include inappropriate professional and personal conduct, moral or professional dereliction, loss of professional qualification, substandard duty performance, acts of expressed sentiments of racism, sexism, or prejudice against ethnic or religious groups, or failure to attain and maintain medical, physical fitness, and weight standards.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was notified of initiation of elimination action under the provisions of Army Regulation 600-8-24 on 8 February 2007 for receipt of a GOMOR, dated 17 July 2006, and a Relief for Cause OER for the period ending 22 April 2006.  In conjunction with this initiation of elimination action, a FLAG was initiated under the provisions of Army Regulation 600-8-2, effective 8 February 2007.

2.  On 9 October 2008, the ASRB removed the applicant's Relief for Cause OER for the period 22 September 2005 through 22 April 2006 and all associated appeal documentation and any directly-related investigations or inquiries relating to the OER from his AMHRR.

3.  A review of his military personnel record does not show any documents pertaining to the flagging action are filed in his AMHRR.

4.  The evidence of record shows the commanding general at HRC, Alexandria notified the applicant that the initiation of elimination action issued to him on 8 February 2007 had been withdrawn.

5.  The evidence of record shows the applicant's FLAG was removed on 21 January 2009.

6.  Orders published on 29 June 2010 promoted him to the rank of MAJ with an effective date and DOR of 3 June 2010.

7.  On 27 July 2010, the ABCMR removed the applicant's 17 July 2006 GOMOR and all related documents from his AMHRR.  In addition, the DASEB's denial and all related documents were removed from his AMHRR and his corrected record was placed before an SSB for consideration for promotion to MAJ under the criteria used by the promotion selection boards that viewed his record with the removed OER and GOMOR in question.

8.  The evidence of record shows the applicant was reconsidered and selected for promotion to MAJ by the 2011 SSB under the 2008 MAJ APL board promotion criteria.  As a result, he was promoted to MAJ with a date of rank of 21 January 2009.  Since the applicant's FLAG was not removed until 21 January 2009, he was not eligible for an earlier promotion date to MAJ.  Therefore, there is no basis for adjusting his promotion to MAJ prior to 21 January 2009.

9.  The AGR position is not an entitlement.  AGR positions are filled as needed to meet mission requirements.  Since there is insufficient evidence that he was improperly removed from this program, there is no reason to reinstate him.  

10.  AGR positions are continuously advertised based on needs.  The applicant has the option to reapply for an AGR position at the State.   

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)                                         AR20120000734





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ABCMR Record of Proceedings (cont)                                         AR20120000734



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