IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20120001447 


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 reconsideration of her earlier request to adjust the effective date and date of rank for captain, pay grade O-3 to 1 June 2010. As an alternative (new issue), she requests the original orders and their revocation orders be moved to the restricted portion of her Official Military Personnel File (OMPF).  She further requests (new Issue) that should the Board decide not to grant her relief concerning her promotion, that the remainder of her resulting debt be cancelled due to hardship.

2.  The applicant states in regard to the Board's decision: "clarity of the facts was not evident in the denial."  She is now requesting reconsideration based on new evidence.  She makes the following specific comments/arguments concerning the Record of Proceedings (ROP) dated 9 August 2011:

	a.  She contends that the commander's inquiry/investigation was a "fishing expedition" because there was no specific performance of duty being investigated.

	b.  The DA Form 268 (Report to suspend Favorable Personnel Actions (FLAG)) was dated 24 May 2011.  She contends she was still on leave as shown on her leave form.  She should have been informed while still on leave of the flagging action.  She contends her chain of command had access to her at all times and provides copies of communications between her and her supervisor to support this contention.  She states she was not notified of the flagging action and suspension of her promotion until 11 June 2011 which was after her return to the Forward Operation Base (FOB) Warrior.
	c.  She contends that that the flagging action was made effective on 24 May 2010; but it was not authenticated until 2 June 2010.  Her promotion to captain was effective 1 June 2010; implying that her promotion was no longer a valid issue.

	d.  She contends she was never notified that her promotion had been delayed.  She argues that there was no valid justification for delaying her promotion because the flagging action was not signed until 2 June 2010, which was the day following her promotion effective date.

	e.  She takes issue with the timeframe in which the investigating officer (IO) finished the investigation.  The applicant reports that a communication between the commander and the judge advocate General (JAG) mentioned that the IO needed to be replaced before going on leave at the end of June 2010.  However, the IO had not completed the investigation when she went on leave.  After her return in mid July 2010, the IO turned in the investigation packet.  The applicant contends there was no paperwork granting an extension of the investigation, which should have been done prior to the IO going on leave.  This resulted in another month passing without the chain of command taking action to resolve the issue.  She contends this delay effectively denied her "due process."

	f.  She takes issue with comments made on her Officer Evaluation Report (OER) contending that the rater had been absent for more than 3 months.  When she raised this issue she was denied the change of rater she wanted.  She believes the subsequent comments on her OER were the result of her rater's distain because she had replaced him as a first lieutenant (1LT) in a captain position.  She further contends that the rater was bias against her age as indicated by referring to her as "a young officer."  She states she lost this battle when she took it to the JAG, who told her, "you're just a 1LT, you will be okay."

	g.  She summarizes by saying she wants the Board to consider and grant her full back pay with a promotion effective date of 1 June 2010.  She contends she is enduring a hardship by having to pay back $2,000.00.  As an alternative, she asks that the unpaid debt be cancelled.  Further she asks that if the Board cannot change her promotion back to 1 June 2010, then she asks that the original promotion order and its subsequent revocation be moved to the restricted portion of her Official Military Personnel File (OMPF).  She wants to continue striving for greatness in the Army and does not want her next promotion board seeing these documents when considering her for major.




3.  The applicant provides copies of:

	a.  a letter from the Board with Record of Proceedings (ROP), dated 
11 August 2011, notifying her of denial;

	b.   an email communication between the applicant and another Army officer, dated 20 May and 11 June 2010;

	c.  an email communication between the Commander, Special Troops Battalion (STB) and the Brigade Combat Team (BCT) trial counsel, subject: Commander's Inquiry, dated 26 May 2010;

	d.  a Memorandum for Record, dated 19 September 2010, written by an Army major in support of her case; and

	e.  email communications between the applicant and her former supervisor, dated 26 March and 30 April 2010.

4.  The applicant also indicated in her request for reconsideration that she had enclosed a copy of DA Form 1059 (Academic Evaluation Report) for the Captain Career Course.  However, this document was not received.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110004083, on 9 August 2011.

	a.  The original ROP determined that the applicant had been under investigation prior to being promoted on 1 June 2010.  Furthermore, she had admitted to being reprimanded as a result of the investigation's findings.  Accordingly, the orders that were published showing her promotion effective 
1 June 2010 were revoked.  No error or injustice was found with these actions.

	b.  The applicant's contention that she had not received due process of law was not sufficiently documented in the available evidence.  The facts and circumstances of the surrounding investigation and the resulting reprimand were not available for the Board to review.

	c.  Because the applicant was on leave at the time from her deployed unit, it appeared to the Board that the situation had made it impractical to promptly notify her of the on-going actions.  However, the Board did not find any justifiable basis for restoring her effective date and date of rank for captain.

2.  The applicant has submitted several new documents to support her previously stated arguments.  These documents need to be considered by the Board as new evidence.

	a.  An email dated 26 March 2010 from the applicant to her rater, informed her rater that she had her OER support form saved on her computer since before leaving Fort Bliss, Texas.  She further stated that she had not received an initial counseling from him until December which had left her without any guidance as to what her duties were since the previous June.  She stated she had kept up with what she had accomplished.  There is no evidence showing that the rater had replied to her email.

	b.  An email dated 30 April 2010 from the applicant to her rater, informed the rater that the applicant had two inquires concerning her OER.  First, there was no mention of the contracts that she had done while at Fort Bliss from June to the end of August.  These contracts were mentioned on her support form but not in the OER.  Her second inquiry concerned a comment about the 3rd Infantry Division's fragmentary orders (FRAGOs).  She stated she had a notebook full of FRAGOs from the brigade and division, all filed since she was given the job.  She had trackers for both division and brigade which she updated daily.  She had briefed at the tri-weekly meetings and had her tracker updates should there be any questions.  This explanation was given because she did not understand the rater's comment about "most days."  The applicant further stated that the rater had made it very clear on multiple days that he did not think she belonged in the brigade S-4 (Logistics) shop because she was a lieutenant.  She stated she had not asked to be in the brigade, but was chosen by the major.  She did not feel she should be punished because of choices made by people who outranked her.

	c.  An email, dated 30 April 2010, from the applicant's rater clarified that if he had ever stated she did not belong, it was because the Army had done her an injustice by not first making her a platoon leader where she could learn how to act professionally, and how to follow orders.  The rater stated he took great pride in the fact the applicant was his first lieutenant and he had put forth a maximum effort to develop her to be a good commander and to hold a high standard.  He tried to set her up for success in the future wherever she went.  She refused to conform.  The rater stated that everything in the OER was an accurate reflection of her performance and would stand.


	d.  An email dated 20 May 2010 from the applicant to her supervisor, advised her supervisor of her arrival in Germany and expected date of return as 5 June 2010.  The reply to her dated that same day simply advised her to be safe and have fun.  Later, on 11 June 2010, another reply to her asked to know when she would be back at FOB Warrior.

	e.  Emails dated 26 May 2010 between the BCT trial counsel to the Commander, STB, discussed the IO's on-going progress with the investigation.  At that time the IO had a few more persons to interview.  She most likely could make an initial report of findings, but it would be incomplete until (the applicant) returned from leave.  Speaking with her may yield documentary evidence and likely additional witnesses whom the IO will then need to interview.  It was important to get the applicant's version of events.  It was suggested that either the IO be allowed to complete the inquiry after the applicant's return, or to replace her with another IO.  The trial counsel recommended the commander allow the IO to complete her work when she returns from leave.  The Commander agreed with the recommendations and stated that the IO would have as much time as she needed to complete the investigation once the applicant returned from leave.  The trial counsel further advised that because the applicant was the subject of an informal investigation, she must be flagged.  The commander stated that a flag would be immediately initiated.  The issue of notifying the applicant was discussed.  The trial counsel suggested that it could be handled when she returns rather than by email or orally.

	f.  A letter, dated 19 September 2010, written by another Army major who had been the applicant's supervisor in 2008 and 2009, states she had always performed in a professional manner as would be expected by any Army leader.  The major states that at the time he was the only field grade officer in the battalion and had to serve as the XO (executive officer), S3 (operations officer), and the SPO (support operations officer in S4 (logistics)).  At the time the applicant was serving as an acting company commander.  He had frequent encounters with her.  She had presented herself in a professional manner meeting or exceeding all requirements.  She had made mistakes, but those mistakes were grade appropriate.  Corrections were immediately made and she impressed him with how she learned from those mistakes.  As a result, he requested that she be reassigned to the brigade S4.  The captain who was previously assigned as the contracting officer in the S4 was making too many mistakes and he wanted an officer who could handle the job without being bullied to do something illegal or unethical.  He felt the applicant was the right officer for the job because she was a "by the book" officer.  Once she took over, the brigade contracting process was smoother and contracts were being approved quicker.  The major opined that the applicant is an outstanding officer who accomplishes the mission with little to no guidance.  He is confident in her abilities and would request to serve alongside her at any time under any condition.

3.  Army Regulation (AR) 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)).  The rules for initiating the flag's effective date are the date of the incident or the date the commander initiates the action, whichever is earlier.  Notifying the officer in writing of the initiated flag and/or delay of promotion should occur before its imposition or as soon thereafter as possible; this can or may possibly be delayed due to a change in the officer's duty status from present for duty to leave, confinement, hospital, and also but not limited to mission requirements deemed appropriate by the officer's command.

4.  (AR) 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list (ADL).  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 the 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 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.

5.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides that all personnel information recorded under the authority of this regulation is the property of the U.S. Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by one or more of the following:

* Army Board for Correction of Military Records (ABCMR)
* Department of the Army Suitability Evaluation Board (DASEB)
* Army appeal boards
* Chief, Appeals and Corrections Branch, Human Resources Command
* OMPF custodian when documents have been improperly filed
* Commander, Human Resources Command (HRC), as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center

	c.  Documents designated for transfer from the performance or service section of the OMPF will be moved to the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted documents mistakenly filed in the performance or service section to the restricted section.

	d.  Table 2-4 (composition of the OMPF) provides that promotion orders will be filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her request should be reconsidered because the Board's reason for denial was not clear to her.  As an alternative to the Board granting her relief concerning her promotion, she submits two new issues:

	a.  that the original orders and their revocation orders be moved to the restricted portion of her Official Military Personnel File (OMPF).

	b.  that the remainder of her debt be cancelled due to hardship.

2.  The applicant's contention that the flag was improperly back dated is without merit.  The governing regulation provides that the effective date of a flag will be either the date of the incident, or the date the commander initiates the action, whichever is earlier.  In this case the flag was effective based on an incident prior to 1 June 2010.  Accordingly, she was not yet promoted to captain and such promotion was properly delayed until completion of the investigation and imposition of punishment.  She was subsequently promoted to captain effective 
8 October 2010.

3.  In view of the above, the applicant's request to reinstate her original effective date and date of rank for captain should be denied.

4.  The applicant's contention that the debt resulting from her promotion being revoked should be cancelled is found to be without merit.  She states this debt is causing her a hardship, but has not provided sufficient documentation or convincing argument to adequately show she is suffering an undue hardship or injustice as a result of this debt.  Accordingly, this portion of her request should be denied.




5.  The applicant's contention that the original promotion orders and the subsequent revocation orders should be moved to the restricted portion of her OMPF is found to be without merit.  The governing regulation clearly shows that these documents are correctly filed in the OMPF.  There is no error or injustice to correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110004083, dated 9 August 2011.

2.  Furthermore, the evidence presented with regard to the new issues presented by the applicant 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)                                         AR20120001447



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ABCMR Record of Proceedings (cont)                                         AR20120001447



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