IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130002833 


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, in effect, correction of his:

* record to show he was promoted to chief warrant officer two (CW2) with the date of rank (DOR) and effective date of 27 February 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired in the rank of CW2 or chief warrant officer three (CW3) on 31 March 2010

2.  The applicant requests as a minimum that he receive retirement pay in the rank of CW2 effective 24 May 2006.

3.  The applicant states he reported illegal acts being conducted by his former Special Forces Detachment to the U.S. Army Criminal Investigation Command (CID).  His denial of promotion to CW2 was an act of reprisal.  Despite what his former command says, they did all they could to protect themselves and continued to shield themselves by discrediting him at all costs.

	a.  Following the initiation of the CID investigation of his former command, a senior warrant officer (WO) who attended a command meeting in 2005 told him his chain of command decided to deny him promotion to CW2 in February 2006.

	b.  He contacted the Army Board for Correction of Military Records (ABCMR) in December 2005 and he was advised to wait for a final outcome.  The U.S. Army Special Operations Command (USASOC) purposely delayed providing the results of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation until 14 January 2013.

	c.  Since he was released from active duty in May 2006, he has written to the Office of USASOC Freedom of Information Act, the Department of Defense Inspector General (DOD IG), the Department of the Army IG (DAIG), and others requesting the results of the Army Regulation 15-6 investigation.  USASOC did not release the Army Regulation 15-6 investigation results until his Member of Congress contacted them in 2012; however, even then they only released a partial file.  This delay seems intentional and malicious.

	d.  The General's erroneous promotion denial cost him his retirement.  He does not believe that the Army's policy is meant to discharge former senior enlisted members with over 16 years of service.

	e.  The denial of his promotion had nothing to do with his job performance.  It was an act of reprisal because he reported illegal actions to CID.  Even the Army Regulation 15-6 investigating officer (IO) recommended that he be promoted based on his record of performance.  He begged his chain of command not to push him out of the Army.  He asked to be transferred to other units, transferred back to the noncommissioned officer (NCO) corps, and offered to reclassify into another military occupational specialty (MOS).  He had no intention of leaving the Army.  He wanted to stay until retirement; however, his chain of command insisted on pushing him out.

4.  The applicant provides:

* A WO package, letters of recommendation, and certificates of training
* Memorandum, dated 2 February 2004
* Orders Number 044-46-A-481, dated 13 February 2004
* Orders Number 056-01-A-486, dated 25 February 2004
* DD Forms 214, ending on 26 February 2004 and 24 May 2006
* DA Form 1059 (Service School Academic Evaluation Report), dated 23 June 2004
* Hand-written correspondence referring to an email, dated 18 August 2005
* Army Regulation 15-6 investigation and hundreds of associated allied documents, concluded on 30 January 2006
* DOD IG complaint, dated 8 February 2006
* Newspaper article entitled "Blacks Have It Tough In Elite Units"
* Delta Force recommendation/selection
* Land Navigation certificate of training
* Numerous internet documents 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had previous enlisted service, the applicant was appointed as a Reserve warrant officer (WO) of the Army and entered active duty on 27 February 2004.  He held MOS 180A (Special Forces WO).  It appears he was appointed as a Regular Army officer at some point in 2005.  The highest rank he attained while serving on active duty was warrant officer one (WO1).

3.  His record contains a DA Form 1059, dated 23 June 2004, showing he attended the Special Forces Warrant Officer Basic Course (SFWOBC) from 25 February 2004 to 1 July 2004.  He demonstrated satisfactory abilities in all areas and achieved the course standards.

4.  His Officer Record Brief (ORB) shows he was assigned to Company B, 2d Battalion, 5th Special Forces Group (Airborne) (SFG(A)), Fort Campbell, KY, form 2 August 2004 to 24 May 2006.

5.  His record contains a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 2 July through 31 December 2004.  During this rating period he served as the Assistant Detachment Commander.  This OER shows in:

	a.  Part Va (Evaluate the Rated Officers Performance During the Rating Period and his/her Potential for Promotion (Rater)), his rater evaluated his performance as "Outstanding Performance, Must Promote";

	b.  Part VI (Intermediate Rater), his intermediate rater stated he demonstrated tremendous potential, "Promote to CW2 at the earliest opportunity"; and

	c.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), his senior rater marked "Best Qualified."

6.  He provided an Army Regulation 15-6 final Report of Investigation (ROI) which included a memorandum of reprimand (MOR), dated 11 May 2005:

	a.  wherein he was reprimanded for his conduct on 4 May 2005 when he threatened an official who made an on the spot correction concerning the wear of his civilian clothes during physical training hours by escalating the situation instead of making the minor correction and moving on with his business.

	b.  The reprimanding official stated that regardless of whether or not the applicant believed he was in the right or wrong concerning tucking in his shirt, it is never appropriate to lose your temper and tell another person that you are going to kick their ass, or words to that effect.

	c.  The reprimanding official further stated that as an officer, the applicant knew the penalties for assault and communicating a threat.  Although the applicant was not a commissioned officer, the spirit of conducting himself as an officer and a gentleman still applied to him.  The applicant's conduct was inexcusable and unlawful.  He showed a complete lack of judgment and brought great disrespect upon himself and his ability to function in the U.S. Army's premiere war-fighting units.  As an officer he was expected to take pride in his actions and to set the example in his words and deeds.  His actions show he failed to meet this high standard and he has cast doubt on his ability to competently perform as an officer within the 5th SFG(A).

7.  His record contains a referred OER for the period 1 January through 6 June 2005.  During this rating period he served as the Assistant Detachment Commander.  This OER shows in:

	a.  Part Va, the rater marked "Satisfactory Performance, Promote" and in Part Vb (Comments on Specific Aspects of the Performance and Potential for Promotion) the rater wrote:

		(1)  "[Applicant] has a weak understanding of military decision making and planning [MDMP]."

		(2)  "In early May, [Applicant] had an encounter with the Division Command Sergeant Major [DCSM] regarding the wear of a civilian PT [Physical Training] uniform.  As a result of this encounter [Applicant] became distracted and unable to perform pre-mission tasks assigned him."

		(3)  "[Applicant] was not available to the team during most of May as the team conducted MDMP, orders production, and brief back."

		(4)  "He became a distracter to the team; as a result, [Applicant] was moved to the Company to allow him time to work on his personal and administrative actions."

		(5)  "[Applicant] is capable of becoming a fine WO with mentoring and professional development; send him to the advanced warrant course when he is ready."

	b.  Part VI, his intermediate rater stated the "[Applicant] has accomplished the tasks that have been directly assigned to him.  He has potential to become a productive WO with additional mentoring and development.  Due to administrative actions and the time required to accomplish them, [he] was moved from…[his previous position to the company].  He has some potential for promotion to CW2."

	c.  Part VIIa, his senior rated him as "Fully Qualified" and stated in Part VIIc (Comments on Performance /Potential) that his "performance during this rating period has been marginal at best.  He was removed from his…[duties]…because repetitive administrative actions prohibited him from accomplishing pre-mission training for Operation Iraqi Freedom (OIF) III.  [Applicant] possesses some potential with additional mentoring."

8.  He rebutted the referred OER in a 10-page memorandum, dated 26 October 2005, wherein he stated:

	a.  In response to the rater's negative comments in Part Vb, "…[Applicant] has a weak understanding of military decision making and planning," he stated that his use of Field Manual 101-5 (Staff Organization and Operation), chapter 5 which covers MDMP and the Smart-book (Inside The Battle Staff, a Step-by-Step Visual Guide to Military Decision Making and Tactical Operations) does not constitute or support the idea of a "weak understanding" of MDMP.  He used this book daily in order to conduct his day-to-day business on the team.  His rater thought he should dust off his (rater) version and use it as compared to [the applicant's] "school house" version.  His choice to use this highly-recommended guide, which is used in the SFWOBC, allowed him to execute his duties as far as planning on a daily basis.  He also used it as a cross reference to his rater's modified version, which is what his rater preferred and seemingly had trouble with the applicant not using more often.  He used his Smart-book whenever he had to do any planning as is recommended by leadership throughout the military. This is not a sign of weakness.  It is a sign of thoroughness.  Furthermore, this comment is in direct contrast to his rater's previous "Yes" selection choices made in Part IVb (Leadership Attributes/Skills/Actions), item IVb3, sub-item 2 (Decision-Making) and sub-item 4 (Planning) of this report.

	b.  In response to the rater's negative comments in Part Vb, "…He became a distracter to the team; as a result [he] was removed to the company to allow him to work on his personal and administrative actions" he stated that:

		(1)  The first distraction had to do with the 101st Airborne Division's DCSM's and the unit's Basic Ordering Agreement (BOA) Article 91 violations which were contributing factors to his "distractions."

		(2)  The second distraction occurred upon learning the mission for OIF III; he and the operations sergeant did not see "eye to eye" on how to accomplish the mission and this was where the "distractions" originated.

		(3)  The third distraction he caused was asking his company commander (his intermediate rater) to question the operations sergeant in reference to his possible involvement in placing an anonymous derogatory letter on his wife's car on 23 May 2005.  The company commander said he would do no such thing.

		(4)  The fourth distraction may have occurred during the last week of May 2005 when he attempted to speak with his rater in reference to the harsh treatment he was experiencing in the company commander's office and about his concerns for the numerous counseling statements he was receiving.  He reminded his rater that he was the Company's Equal Opportunity (EO) representative and that a number of the things he was experiencing were not in keeping with the Army's or the unit's EO policies.  He further informed his rater that he would be filing a complaint against the chain of command for this action; however, at the time he was unsure whether it would be an EO or an IG complaint.

		(5)  On or about 3 June 2005 he overheard members of the team discussing conducting possible illegal or suspicious activity.  Then, on 7 June 2005, he confronted his rater concerning this suspicious activity.  The tone of this conversation bothered him because his rater felt he was asking about things that were team internal and he was no longer part of the team.  Because of the way the unit treated him he did not trust the chain of command enough to notify them of this suspicious activity concerning members of the team.  He proceeded to the CID because he did not trust anyone in his chain of command to properly handle the situation.  Because he did not notify his chain of command, his activity and days were micro-managed.  He also feared what the 2d Battalion Executive Officer (XO) told him on the way back from seeing the 101st Airborne Division's DCSM, "Face it man, you're Black, and you know how that is around here."

		(6)  He agreed with the comment that he was not around much during the month of May 2005.  Few people were around during the month of May due to the fact that it was block leave for the battalion, and it included a 4-day weekend, Memorial Day.  This OER primarily focused on 2 days out of the first week of May and 4 days out of the fourth week of May, for a grand total of a period less than 10 days.

	c.  In response to the senior rater's negative comments in Part VIIc, "…[Applicant's] performance during this rating period has been marginal at best" the applicant stated that his senior rater never saw him during either of his rating periods more than once for any significant period of time and it would have been impossible for him to have a true basis for judging his performance as good or bad.  Therefore, his senior rater must have relied and trusted whatever comes across his desk.  He's the senior rater and, unfortunately, the aforementioned comments and documentation were presented to him by his subordinate commanders and he commented on what was in front of him.

	d.  In response to the senior rater's negative comments in Part VIIc, "[Applicant] possesses some potential with additional mentoring" the applicant stated that he does not understand that comment.  It is vague and seems to suggest that he was receiving mentorship at some point.  He does not recall ever receiving mentorship.  In March 2005 his first OER described his performance as being outstanding and stated he had tremendous potential.  His reaction to his experiences during the month of May 2005 could not have possibly caused his potential to change so quickly or drastically.  He suddenly went from a stellar performer to a questionable performer needing additional mentorship.  His unit falsely accused him of things he did not do on two occasions, punished him with a reprimand, hanged a promotion over his head, sent him to mental health, dropped a derogatory letter on his spouse's car and further berated him the same day he received punishment, called the Military Police (MP) on him to further damage his character, allowed personnel to knowingly submit false statements, made racist comments about accepting his fate, impeded his authorized progress to rebut punishment, and secretly attempted to affect his spouse's career if she would not corroborate the unit's efforts at character assassination, all within a 
30-day period.  After all of this, his unit wrote his OER and based it on his response to these actions.

9.  During the processing of this case a sanitized final CID ROI, dated 6 October 2005, was obtained.  This report shows a CID investigation was initiated on 7 June 2005 upon notification from an unknown individual.

	a.  The investigation established probable cause to believe five unknown staff sergeants (SSG/E-6), one unknown sergeant first class (SFC/E-7), one unknown master sergeant (MSG/E-8), and one unknown captain (CPT)/O-3 committed the offenses of conspiracy, larceny of Government funds, larceny of private property, captured or abandoned property, fraud against the United States, false official statement, and smuggling of currency, when they conspired to alter and falsify Official Funds (OFUND) receipts and documents; sell civilian vehicles acquired with OFUNDS and keep the profit; sell building materials; sell a structure to an Iraqi national; conspire with Iraqi nationals to turn in various ordnance found and split the money obtained when the ordnance/weapons were turned in during the Weapons Buy-Back Program; and to smuggle the illegally obtained funds into the United States.  It is estimated the team raised over $13,344.00 through these illegal means.

	b.  Further investigation revealed a second unknown MSG did not commit the offense of conspiracy as originally reported.

	c.  The CID report also included:

		(1)  An interview/sworn statement of the applicant, dated 8 June 2005, wherein he detailed his knowledge of the team funds and stated he arrived on the team in July 2004, after the team had already returned from an Iraq deployment during OIF II.  He stated he heard of rumors about some money from Iraq, but had not physically seen the money.

		(2)  DA Form 3975 (MP Report), dated 19 March 2006, which stated an unknown person reported the applicant communicated a verbal threat toward an unknown person at the hospital while in the emergency room with his wife.  Upon arrival, contact was made with an unknown person and a statement was taken.  The unknown person indicated the applicant stated that, "I could just Timothy McVeigh this place."  The applicant quickly left the emergency room in his vehicle after making this comment.  The unknown person left in a taxi cab prior to the MP's arrival.  It was unknown if alcohol was a factor in this incident.  The investigation further revealed that based upon the sworn statements of the applicant and an unknown person the charge of communicating a threat was unfounded.

10.  During the processing of this case, the DAIG provided a final IG report which shows an IG investigation was opened on 2 June 2005 and closed on 3 January 2006.  This report shows that he alleged he was reprised against by COL Hxxxxx Pxxxx (Subject), USASOC.  The case notes associated with this report further show:

	a.  On 23 May 2005, the applicant filed an IG complaint with the 101st Airborne Division (Air Assault) IG at Fort CampbelI, KY concerning a verbal altercation that occurred on 4 May 2005 between himself and CSM Fxxxx Gxxxxx, the Division CSM for the 101st Airborne Division.  Through email communications, an MOR was being contemplated prior to the applicant contacting the 101st.  In other words, the MOR pre-dated his IG complaint and was sent forward to the DAIG as a declined case of whistle blower reprisal.

	b.  On 1 June 2005, the applicant contacted the U.S. Army SFG(A) (USASFG(A)) IG Office, Fort Bragg, NC, alleging reprisal from his chain of command for communicating with the IG and the equal opportunity advisor (EOA).

	c.  On 2 June 2005, the IG office received a phone message from the applicant, who was assigned to 5th SFG(A), Ft Campbell, KY.  The phone message stated the applicant believed he had been reprised against due to a previous IG complaint he filed with the Fort Campbell IG office regarding a recent verbal confrontation between the applicant and the Post CSM.

	d.  On 3 June 2005, LTC Qxxxxx, USASFG(A) IG, contacted the applicant to ask for further details regarding his request for IG assistance and the issues involving the allegation of reprisal.  LTC Qxxxxx informed the applicant that allegations of reprisal could not be handled at his level and must be referred to the Major Command (MACOM) IG for action.  The applicant provided email detailing the issues involving the initial IG complaint and issues as to how he perceived he was being reprised against.  The applicant continued to call asking when the IG would look into his request.  The case was closed as "assistance provided" and referred to the MACOM IG.

	e.  On 13 June 2005, the applicant emailed LTC Qxxxxx, USASFG(A) IG with allegations of reprisal.

	f.  On 20 June 2005, LTC Qxxxxx provided USASOC IG with an advisement of the reprisal complaint.  On 20 June 2005, LTC Qxxxxx prepared an "Advisement of Complaint" memorandum and forwarded it to the USASOC IG for action and formal disposition.  Included were the email and phone conversation transcripts between the applicant and LTC Qxxxxx.

	g.  On 8 July 2005, Ms. Wxxxxxxxx, Chief, Investigations (USASOC IG) and Mr. Cxxx, Deputy IG (USASOC) conducted a taped, telephonic Interview with the applicant.

	h.  On 4 August 2005, a declination of the applicant's allegation of reprisal was sent to DAIG for consideration.

	i.  On 11 October 2005, DOD IG concurred with the declination.

	j.  On 3 November 2005, DAIG concurred with the declination.  Confirmation of concurrence with the declination was received from the DAIG and DOD in writing. The case was closed.

11.  The applicant provided two letters, dated 3 January 2006 and 20 January 2006, showing an IO was appointed to conduct an Army Regulation 15-6 investigation concerning an allegation by the applicant that XXXXX and other Soldiers' wives were involved in sending resupply packages containing alcoholic beverages to 5th SFG(A) Soldiers stationed in Balad and Baghdad, Iraq on military aircraft.  The IO was also directed to assess whether there was any evidence the applicant's allegation that his chain of command's decision not to recommend him for promotion to the rank of CW2 and numerous prior personnel actions since 1 January 2005 were motivated by racism and/or as acts of reprisal for his actions as a military whistle blower and the extent that any or all of the decisions with regard to these personnel actions was motivated by reasons other than racism or as an act of reprisal, specifically describe based on the evidence for the command's decision.

12.  The applicant provided the final Army Regulation 15-6 Investigation (redacted), dated 5 February 2006, wherein the Army Regulation 15-6 IO provided the following findings and recommendations:

	a.  Allegation:  The applicant alleged that the following significant personnel decisions were acts of reprisal and/or motivated by racism.  Findings:  Unsubstantiated.  There is no evidence that the 5th SFG(A) decisions were acts of reprisal or motivated by racism.

		(1)  Allegation:  The applicant's chain of command's response to an incident with the 101st Airborne Division XXXX on 4 May 2005 that resulted in his receipt of a locally-filed memorandum of reprimand .  Findings:  Unsubstantiated. Although both parties bear responsibility for the altercation that resulted in the applicant's reprimand, the applicant received punishment from his unit for verbalizing a threat to the 101st Airborne Division XXXX and violating the 5th SFG(A) Commander's Command philosophy.

		(2)  Allegation:  The applicant's administrative removal from his position as Assistant Detachment Commander in June 2005 and his referred OER.  Findings:  Unsubstantiated.  After receiving the MOR, the applicant was focused only on fighting the perceived injustice of the punishment.  On 2 June 2005, the applicant received a Mental Health Status Evaluation that stated the applicant was under a lot of stress and would continue to attempt to clear his record despite consequences to himself.  Furthermore, the Health Care provider supported the command's decision to remove the applicant from his position and postpone or cancel his upcoming deployment.  On 6 June 2005, XXX XXXXX, the XXXXX, administratively moved the applicant from XXXX to another section based on XXX XXXXX's assessment of the applicant's lack of focus and preparedness.  After his removal, the applicant stated in the presence of XXX XXXXX, XXX XXXXX, and XXX XXXXX, "… he is not prepared to deploy with his [unit]."  Subsequently, during a 9 June 2005 counseling session with XXX XXXXX, the applicant signed a counseling statement verifying the 6 June 2005 events.

		(3)  Allegation:  The applicant's administrative removal from his subsequent position as the Assistant Company WO.  Findings:  Unsubstantiated. The applicant was a material witness as the Military Whistleblower to the CID investigation.  The Group Commander determined that material witnesses and persons of interest would not deploy due to the ongoing CID investigation of XXXXX.  On 9 June 2005, XXX XXXXX informed the applicant of the Group Commander's decision and told him that he would not deploy and that as of 13 June 2005 he would fall under XXXXX and the Rear Detachment.

		(4)  Allegation:  The applicant's assignment to conduct a unit history of the 5th SFG(A).  Findings:  Unsubstantiated:  On 18 November 2005, XXX XXXXX emailed the unit history tasking for 2d Battalion to XXX XXXXX and XXX XXXXX assigned the task to the applicant.  On 19 November 2005, the applicant sent XXX XXXXX a return email wherein he stated "Thanks for this wonderful opportunity to research the rich history of this elite warfighting unit, the 5th Special Forces Group (Airborne)."  He also stated that the timing of the task was funny and suspicious.  On 3 January 2006, in the applicant's rebuttal to his promotion denial, he alleged the unit history task was a reprisal.  On 10 January 2006, during a counseling session with XXX XXXXX, the applicant was asked about his statement that the unit history task was a form of reprisal.  The applicant responded that "he did not want to bother XXX XXXXX and it would at least give him something to do when he is sitting over there doing nothing."  XXX XXXXX then relieved the applicant of the requirement.

		(5)  Allegation:  The chain of command's decision not to recommend the applicant for promotion to the rank of CW2.  Findings:  Unsubstantiated.  The applicant's Rater, XXX XXXXX stated, "He lacks the judgment and maturity to continue as a leader in Special Forces and on an Operational Detachment."  The applicant's Senior Rater, XXX XXXXX, stated "He does not possess the maturity and attitude required for advancement in Special Forces."  The Rater's and Senior Rater's decisions were based on the applicant's courses of action in dealing with the 101st Airborne Division XXXX incident and subsequent events.

	b.  The IO was tasked to determine whether or not there was any evidence these personnel decisions were racially motivated or discriminatory.  Additionally, the IO was directed to investigate the following specific instances of racist remarks and comments alleged by the applicant.  Findings:  Unsubstantiated.  There is no evidence that 5th SFG(A) decisions were acts of reprisal or motivated by racism.

		(1)  Allegation:  The applicant's assertion/allegation that while returning from a meeting with the 101st Airborne Division XXXX following the 4 May 2005 incident, XXXXX stated to the applicant: "Face it man, you're Black, and you know how it is around here."  The applicant alleged that XXXX then proceeded to recount a "similar incident he had back in college with a Black colleague."  Findings:  Unsubstantiated.  XXX XXXXX, the XXXXX, stated that the applicant distorted the facts of the conversation and that the applicant's allegations against him were a fabrication of his imagination.  XXX XXXXX stated "I never made any allusions to any racism existing in either this HQs nor in the Army in general."  XXX XXXXX, stated that "I told [the applicant], that in my opinion, if he filed an EO compliant as a black man he would be viewed as using his race as a reason for the XXXXX's actions against him because there was really no substance to his protest against the XXXX."

		(2)  Allegation:  The applicant's allegation that XXXXX was overly concerned with his and his wife's finances, suggesting they live above their means, and giving the impression that XXXXX was of the opinion "Black people are not supposed to have nice things."  Findings:  Unsubstantiated.  XXX XXXXX stated that he has known the applicant since he was an NCO.  XXX XXXXX told the IO that he inquired about the applicant's Corvette in a casual conversation.  XXX XXXXX indicated that the applicant has owned several Corvettes.  XXX XXXXX told the IO he made the statement, "that must be expensive."  There is no evidence to substantiate the applicant's allegation that XXX XXXXX was of the opinion that "Black people are not supposed to have nice things."

	c.  The IO was tasked to determine whether or not there was any evidence that any of these personnel decisions were acts of reprisal for the applicant's communications with CID, the IG, Chaplain, JAG, or EO as opposed to or in conjunction with reports to his chain of command.  The IO was also directed to investigate whether any of the following alleged specific instances provided a basis for command reprisals against the applicant.  Findings:  Unsubstantiated.  There is no evidence that 5th SFG(A) decisions were acts of reprisal or motivated by racism.

		(1)  Allegation:  On 4 May 2005, during the incident with the 101st Airborne Division XXXX, the applicant alleged that in the presence of XXX XXXXXX, he informed the XXXX that he felt harassed by the XXXX's abuse of authority and was going to file an EO complaint, to which the XXXX replied with a threat to the effect of "hitting (him) with two stars."  Findings:  Unsubstantiated.  XXX XXXXX, recently promoted to XXXXX, indicated that the applicant did tell the XXXX that he felt harassed and he was going to file an EO complaint.  XXX XXXXX indicated that the XXXX replied with "Let's go."

		(2)  Allegation:  In June 2005, the applicant reported to CID that members of his unit serving in the section from which he had recently been administratively removed were involved with the misuse of the unit's OPFUND.  Several of the section members received or are pending UCMJ and/or adverse administrative action, to include his rater, XXX XXXXX (pending court-martial).  

		(a)  The IO was tasked to investigate the degree to which XXX XXXXX and the applicant's rating chain were aware of his report to CID at the time they authored his OER and any impact this may have had and the extent to which the Senior Rater and Intermediate Rater had interaction with the applicant as opposed to being informed of his performance by his Rater or documents (i.e., counseling) provided by his Rater.  Findings:  The applicant's chain of command was aware of his report to CID during the period that they authored his OER.  However, there was no evidence that this action impacted the applicant's OER.

		(b)  The IO was tasked to document the basis for the significant change in the Rater and Senior Rater comments from his previous OER as well as the basis for the Command's initial decision not to "refer" the OER to the applicant.  Findings:  The basis for the significant change in the comments from his previous OER was due to the MOR.  The initial decision to not refer the OER to the applicant was due to the Battalion S-1's misinterpretation of Army Regulation 
623-105 (Officer Evaluation Reporting System), paragraph 3-32 (Referred Reports).  The U.S. Army Human Resources Command (HRC) identified the error and returned the OER to the unit for referral and comments.

		(3)  Allegation:  The applicant's allegation that the unit's pre-mission planning was distracted because of the frequent consumption of alcohol during the pre-mission planning process, with "beer thirsty" getting earlier and earlier each day, and the applicant's questioning of them as to whether they could do their jobs without a beer in their hands.  Findings:  Incomplete.  None of the XXXX Soldiers with knowledge of this allegation were available for questioning due to ongoing CID investigation.

		(4)  Allegation:  The applicant's alleged report to CID on "Tactic Number Six."  According to the applicant, a XXXXX bragged about the tactic and briefed it to the 2d Battalion Commander during a quarterly training brief.  The applicant claims it [Tactic Number Six] borders on a violation of the Geneva Convention and that his chain of command is attempting to remove him from the military prior to a pending court-martial to prevent the introduction of information related to "Tactic Number Six."  Findings:  Unsubstantiated.  CID investigated "Tactic Number Six" and found no merit to continue the investigation.  There was no evidence to substantiate the applicant's claim that "Tactic Number Six" violated the Geneva Convention.

		(5)  Allegation:  The applicant's alleged December 2005 report to CID that 2d Battalion personnel authorized or enabled the shipment of alcoholic beverages aboard a military aircraft to Soldiers participating in OIF.  The applicant also alleged that he questioned several members of the chain of command on the legality of shipping alcohol to OIF.  Findings:  Unsubstantiated.  The 5th SFG(A) conducted an Army Regulation 15-6 investigation of these allegations and found no evidence to substantiate the applicant's claims.  Additionally, the IO reviewed all of the 5th SFG(A) Army Regulation 15-6 investigation documents and based on this review he concurred with the 5th SFG(A)'s findings.

	d.  The IO was directed to determine the extent that any or all of the decisions with regard to these personnel actions involving the applicant were motivated by reasons other than racism or as an act of reprisal, and to specifically describe, based on all the evidence, the basis for the command's decision.  Findings:  The applicant's actions and allegations have served as a distracter during a time period when the applicant's unit was extremely focused on the War on Terrorism and continued to be an embarrassment to the unit's reputation.  5th SFG(A) deemed that the applicant did not possess the character or traits required to be a leader in the 5th SFG(A).  The applicant's Rater, XXX XXXXX, stated, " He lacks the judgment and maturity to continue as a leader in Special Forces and on an Operational Detachment."  The applicant's senior rater, XXX XXXXX, stated, "He does not possess the maturity and attitude required for advancement in Special Forces."  The rater's and senior rater's decisions were based on the applicant's courses of action in dealing with the 101st Airborne Division XXXX incident and subsequent events.

	e.  The IO was directed to investigate the following additional matters/
allegations and determine the basis for the allegations:

		(1)  Whether that applicant was under the constant close supervision of his chain of command, "as if he was a prisoner" from 1 May 2005 to [on or around 20 January 2006].  The IO was also directed to describe the daily supervision of the applicant and determine whether or not the supervision was more rigorous than that normally afforded a WO of the applicant's rank and experience. The IO was further tasked to determine why the supervision was more rigorous than that normally afforded a WO of the applicant's rank and experience, if the supervision was determined to be more rigorous.  Findings:  Unsubstantiated.  There is no evidence to support this allegation.  The applicant was not required to sign-in or sign-out from work.  He has not been escorted around the premises; however, the applicant felt he was under close supervision because his office was directly across from his supervisor, XXX XXXXX, the XXXXX.  XXX XXXXX said "[The applicant] was placed in this office because the room has both SIPR and NIPR access, the Battalion Adjutant was deployed and this office was not occupied, and [the applicant] was to serve as Battalion Rear Detachment Executive Officer."

		(2)  Allegation:  The applicant's allegation that the command climate of 2d Battalion, 5th SFG(A) is infused with racial, gender, ethnic, and cultural insensitivities.  The applicant further alleged that other Black, junior officers in the unit expressed a similar perception.  Findings:  Unsubstantiated.  There are three Black junior officers in the Battalion; the applicant, XXX XXXXX, XXX XXXXX, and XXX XXXXX.  XXX XXXXX and XXX XXXXX both provided statements regarding the command climate and treatment of minority officers.  Neither of the officers indicated any perception of racial bias or racial inequality by their chain of command.

		(3)  Allegation:  The applicant alleged that the command purposefully did not notify him of its decision not to recommend him for promotion until 22 December 2005 with the motive to increase the amount of stress the applicant and his wife were experiencing as an act of reprisal.  Findings:  Unsubstantiated. The applicant's DA Form 78-R (Recommendation for Promotion to First Lieutenant (1LT)/CW2) was signed by the Company Commander on 22 December 2005.  The applicant was notified and counseled by XXX XXXXX on 22 December 2005.  XXX XXXXX, the XXXXX, signed the form on 23 December 2005. The XXXXX, signed the form on 5 January 2005, (typo, should read 2006).  There is no evidence to substantiate the allegation that the date of notification was chosen to cause additional stress to the applicant or his wife.

		(4)  The applicant's allegation that acts of reprisal or racism were directed toward his wife.  Findings:  Unsubstantiated.  There is no evidence to substantiate the claim that any acts of reprisal or racism were directed toward the applicant's wife.

		(5)  The IO was directed to specifically investigate circumstances surrounding the note the applicant alleged was placed on the windshield of his wife's car.  Findings:  An anonymous note was left on the windshield of the applicant's wife's car.  The note implied that his wife's supervisor was untrustworthy and that he criticized the applicant and his wife in front of other officers.  The note also implied that the male officers in the unit were biased against female officers.

		(6)  The IO was directed to investigate the applicant's assertion that his company commander "laughed" in his face when he asked the commander to question his Team Sergeant for possible involvement with the incident involving the note.  Findings:  Unsubstantiated.  The XXXXX counseled XXX XXXXX and XXX XXXXX on 25 May 2005.  The XXXXX determined that based on XXX XXXXX's statement in the counseling session there was no substance to the anonymous allegations against XXX XXXXX and the unit; therefore, no further action would be taken.  Later, on 9 August 2005, XXX XXXXX filed an EO complaint against XXX XXXXX for creating a hostile work environment.  On 11 August 2005, 5th SFG(A) appointed an IO to conduct an Army Regulation 
15-6 investigation.  The IO was unable to substantiate her claims.  Additionally, after reviewing XXX XXXXX's EO complaint and the final Army Regulation 15-6 ROI, the IO concurred with the findings.

	f.  The IO was directed to determine whether or not there was any evidence to support the applicant's allegation that during the week of 23 to 27 May 2005 his chain of command (his rater) intentionally impeded or prevented him from meeting with the IG, EO, or JAG.  The IO was also tasked to explain why the applicant's rater intentionally impeded or prevented his meetings, if the rater was found to have done so.  Findings:  Unsubstantiated.  The applicant did see the IG, EO, and JAG during this period; therefore, there is no evidence to corroborate his allegation.

	g.  The IO was directed to document the circumstances surrounding the incident on 26 May 2005 which resulted in the EO Advisor (EOA) reporting the applicant to the MPs following a prolonged counseling session.  Findings:  Based on the sworn statements of the applicant and XXX XXXXX, the session involved a discussion of EO and spiritual counseling.  At some point during the counseling, XXX XXXXX told the applicant to let the situation with the Division XXXX cool down and not bring any more heat to the situation.  He then asked the applicant to leave his office.  In frustration, the applicant ordered XXX XXXXX to the position of attention.  XXX XXXXX then told the applicant that he was out of line and called the MPs.  There is no evidence to justify XXX XXXXX calling the MPs.  The applicant emailed XXX XXXXX on 9 June 2005 requesting that XXX XXXXX receive appropriate punishment under the UCMJ.  XXX XXXXX responded that XXX XXXXX's role in the incident would be addressed by the command.  On 18 October 2005, XXX XXXXX  gave XXX XXXXX a performance counseling wherein he was informed that he would be removed from his position as the Command's EOA as soon as a school-trained replacement could be acquired because he had violated trust and painted an inaccurate picture of the 5th SFG(A)'s support for EO objectives.

	h.  The IO was directed to, based on his entire investigation, include a thorough review of the applicant's personnel file, make a recommendation as to the applicant's suitability for continued retention in the Special Forces Officer Corps, and promotion to the rank of CW2.  Recommendations:  The applicant's actions and unsubstantiated allegations have served as a distracter and an embarrassment to the 5th SFG(A)'s reputation.  However, the IO was of the opinion that the 5th SFG(A) had not adequately documented or justified the decision not to promote the applicant.  The IO recommend that he be promoted based on the following reasons:

		(1)  The applicant's OER for the rating period 2 July 2004 through 31 December 2004 shows his rater and senior raters selected a rating of outstanding performance, must promote, and best qualified.

		(2)  The applicant's OER for the rating period 1 January 2005 through 6 June 2005 shows his rater and senior raters selected a rating of satisfactory performance, promote, and fully qualified.  This OER followed the 4 May 2005 incident with the 101st Airborne Division XXXX and subsequent memorandum of reprimand.

		(3)  The applicant's rater and senior rater were deployed to OIF from 15 July 2005 to 31 January 2006.  The applicant received limited direct supervision from the chain of command during this period and was under the direct supervision of XXX XXXXX, who conducted his initial counseling on 22 June 2005.

		(4)  The applicant received a quarterly counseling from his supervisor, XXX XXXXX, on 28 November 2005.  His supervisor stated he completed every assigned task.

		(5)  On 15 December 2005, XXX XXXXX drafted a memorandum for record wherein he stated that the applicant was an average performer.

13.  On 7 February 2006, the USASOC lG office received copies of concurrence letters from the DAIG and DOD IG and the final notification letter to the subject was sent out.

14.  The applicant provided an electronic fraud, waste, and abuse complaint form he submitted to the DOD IG hotline on 8 February 2006.  It is unclear whether or not he actually submitted this form.  Nevertheless, he indicated he was assigned to Headquarters and Headquarters Company, 2d Battalion, 5th SFG(A), Fort Campbell, KY, he was alleging reprisal, and his wife, who was assigned to the same unit, was a potential witness.  Additionally, he stated:

	a.  On 4 May 2005, during an incident between himself and the 101st Airborne DCSM (CSM Fxxxx Gxxxxx), he informed the CSM, in the presence of First Sergeant (1SG) Txxxxx Mxxx of the 5th SFG (A), that he intended to file a complaint against him for harassment either with the IG or EO.  He notified his chain of command of his intentions during the course of various discussions regarding the incident sometime between 4 and 6 May 2005.  He informed CPT Mxxx Gxxxxxx (immediate supervisor), Major (MAJ) Mxxx Mxxxxxxx, MAJ Dxxxxx Mxxxxxx, LTC Bxxxx Nxxxxx (Battalion Commander), Colonel (COL) Hxxxxx Pxxxx (Group Commander), chief warrant officer five (CW5) Jxxx Sxxxxxx, and others about his intentions to seek EO, IG and legal advice in regard to this situation.

	b.  On 23 May 2005, his Battalion Commander, LTC Bxxxx Nxxxxx, read him a reprimand that had been issued to him by his Group Commander, COL Hxxxxx Pxxxx.  At this time he mentioned that a derogatory note had been placed on his wife's car by someone in the unit or closely associated with the unit.  His wife's supervisor (CPT Cxxxxx Bxxxxxxx) initially admitted that his girlfriend placed this note on his wife's car.  Additionally, other personnel in the unit had been known to resort to this type of behavior.  The derogatory comments in the note were directed at him and his wife and warned her of possible unethical behavior by her supervisor toward her.

	c.  Prior to telling the applicant that he was being sent to an anger management course, his Company Commander (CO), MAJ Mxxx Mxxxxxxx, informed him that he and his wife's supervisor, CPT Cxxxxx Bxxxxxxx, were neighbors.

	d.  From 23-25 May 2005, he sought legal, IG, and EO advice.  On 25 May 2005, he was interrupted during his consultation with the EOA, (SFC Fxxxx Axxxxxx), "again" by his immediate supervisor, CPT Mxxx Gxxxxxx, and dragged into another berating by his CO where he was questioned about whether or not he had written the derogatory note left on his wife's car.  During this session his CO said "CPT [Cxxxxx] Bxxxxxxx [his wife's supervisor] and I have been talking and we seem to think that there is more to this (referring to the note).  We are neighbors and we talk almost every night."  He [CO] then went on to read him the list of questions about the note.  After he answered his questions and signed the CO's questionnaire, the CO pulled out this statement about the referral to Mental Health.  The CO never read or notified him of any rights.  However, the CO did tell him that he (CO) would "personally" escort him to the clinic on 1 June 2005.  At the time of this incident, the applicant did not notice that his CO had gone to/spoken with a clinical representative on 17 May 2005.  He continued to tell the CO that the statements the 101st CSM and the 1SG wrote concerning the incident on 4 May 2005 were inaccurate.  However, his CO insisted on taking their word regarding the incident against the applicant's word.  Now his CO is facing possible jail time for defrauding the Government and the 101st CSM and the 1SG are being punished for their false statements.  Additionally, the 1SG later retracted his statement to the applicant saying he had gotten the situation confused.  His CO was bent on sending him to anger management and he did it as a form of reprisal.  His CO wrote it up to look like he was just doing a normal and authorized command referral, when in fact, his CO was actually reprising against him for, as his CO put it, shining the light on the unit.  His CO's behavior constitutes an abuse of authority and racism.

	e.  Had the applicant been a white officer and the CSM been black, this racially-driven, good old boy, Special Forces unit would have punished the CSM for disrespecting an officer.  However, since the applicant is black, and the CSM is white, this was not the case.  His point was further validated by the comment his Battalion XO MAJ Dxxxxx Mxxxxx, a white man, made when he said to the applicant in frustration, "Face it man you are black, and you know how that is around here."

	f.  He reported an illegal act of fraud by his immediate supervisor and his CO removed him from the detachment and the company instead of removing the persons involved in the criminal act.  His removal was accomplished as an act of punishment and dressed up to look legitimate because members of his chain of command were angry with him for not reporting the felony through his chain of command, thus allowing the command to handle it "their way."  The applicant strongly believes that LTC Bxxxx Nxxxxx (Battalion Commander) told his CO and Detachment Commander to start writing him up for everything so that the unit could get rid of him and his wife.

	g.  On 27 May 2005, Chief Warrant Officer Four (CW4) Cxxxxxx Pxxxxx told the applicant that the unit had discussed not promoting him.  This very same chain of command wrote his OER and tried to pass it off as non-referable.  However, 2 months later HRC sent the report back to the applicant requesting his  comments.

	h.  His work internet account was suspended for sending an email to members of the unit alerting them to unethical behavior in the Group Budget Office by his wife's supervisor toward her, due to her pregnancy (pregnancy/
gender discrimination), which was creating a hostile work environment.  He also continually notified the command of his position as an Equal Opportunity Representative (EOR) for the company, and informed the command that he had the right to report policy violations as a Soldier and trained EOR to the commander, which he did. 

	i.  His wife filed a complaint against her supervisor, CPT Cxxxxx Bxxxxxxx, in August 2005 because he was creating a hostile work environment for her.  He demanded that she persuade the applicant not to file a complaint against the unit and the 101st CSM.  He informed her that if she was successful he would reward her with a good bullet on her OER.  Since she did not do as he requested CPT Cxxxxx Bxxxxxxx began to attack her vindictively.  He began to flaunt and threaten her with his connections to the finance branch at HRC and with other places and persons of influence.  In Iraq he told members of the unit to watch the applicant's wife for any infractions because he was going to "get her after this investigation was over."  He subjected the applicant's wife to numerous acts of reprisal and retaliation as a way to indirectly attack the applicant on behalf of the unit.  

	j.  The unit has conducted an all-out onslaught of harassment, reprisals, and racial discrimination against the applicant and his wife ever since May 2005.  These included his CO and Battalion Commander denying his promotion to CW2. 
His chain of command did what the unit set out to do in the month of May and in June when he became a whistleblower against his former detachment.  The chain of command openly degraded him and built ridiculous counseling packets against him and his wife in an attempt to destroy everything he and his wife had worked to accomplish in their careers over the past eight years. 

	k.  The applicant felt he had been more than patient with the reprisal and subtle, sometime open racism.  His unit has denied his promotion which ultimately resulted in kicking him out of the Army.  The unit has contributed to his wife's miscarriage by producing a letter of release 2 days after she informed the chain of command that she was pregnant, by treating her like dirt, by causing undue stress on her in the workplace, by encouraging her to influence her husband, and by retaliating against her for her refusal to do so in manipulative ways, and by writing her up in Iraq for ridiculous minor infractions in order to build packets that would justify getting rid of her also.  The unit also constantly wrote up the applicant for trying to get to the bottom of his authorized administrative issues, which ultimately led to his promotion denial.  The Group Commander stood by and allowed this to happen and when he and his wife had to see the commander they would insinuate that this was all happening because the applicant and his wife were not good Soldiers.

	l.  He received unfavorable personnel actions against him as acts of reprisal.  He was ultimately denied promotion to CW2 which results in him being kicked out of the Army.  His official email account was suspended, which is essentially on the same level as terminating his security clearance when it comes to utilizing a secret account.  His chain of command purposely wrote a weak OER in order to retaliate/reprise against him and used the same language in the MOR which was placed in his permanent record.  Racism was used to prejudge his action and as a means of tarnishing his credibility.  The racism against him was validated by the Battalion XO.  He was also reprised against for reporting a possible shipment of alcoholic beverages to Iraq by the Rear Detachment Commander, MAJ Dxxxxx Rxxxxx, which further contributed to his denial of promotion.

	m.  He indicated that this matter had been going on for the past nine months and the  Army has chosen to ignore and discredit him and his wife by continually stating their claims were unsubstantiated.  He and his wife notified their Member of Congress with respect to his wife's case and their MACOM and the DAIG with respect to his case and the case he filed against the 101st CSM that was swept under the rug by an IG member.  He was told by Lxxxx Sxxxxx, DAIG, late last year to resubmit his reprisal claim because she didn't get a chance to include everything due to her accident.  He was told by members of the 101st IG to resubmit his claim against the CSM because they did not believe it had been executed properly due to a close relationship of the investigating NCO and the CSM.   Additionally the DAIG held the case up until the CSM left for Iraq and did not give him a close out letter until he went through the DAIG in November 2005.  When he did get the letter they created one on the spot six months later.  This entire situation looks like a cover up by the Army and a typical whistleblower reprisal story.

14.  The DOD IG did not provide any additional information with regard to the applicant's DOD IG complaint.  However, the DAIG's files indicate that on 7 February 2006 the USASOC lG office received copies of concurrence letters from the DAIG and DOD and the final notification letter was sent to the applicant. Therefore, it appears the DOD IG closed his case based on the fact that his complaints had been previously addressed and unsubstantiated by the USASOC lG.

15.  His record does not contain a DA Form 78-R.

16.  On 24 May 2006, he was honorably discharged from active duty in accordance with AR 600-8-24 (Officer Transfers and Discharges), paragraph 
2-41, by reason of non-selection for permanent promotion.  His DD Form 214 shows he completed 2 years, 2 months, and 28 days of net active service during the period covered and he had 13 years, 11 months, and 7 days of prior active service.

17.  On 5 April 2013, an advisory opinion was obtained from the HRC, Officer Promotions.  The advisory official stated the Office of Officer Promotions conducted a review of the applicant's request for promotion to CW2 prior to his separation due to non-selection.

	a.  The applicant received a referred OER for the rating period 1 January  through 6 June 2005.  This referred OER caused his file to reflect an adverse action code which placed him in a non-promotable status.  In accordance with Army Regulation 600-8-29 (Officer Promotions), section III, paragraph 3-5c(3), the applicant would have been processed for separation at his 2-year anniversary.

	b.  In accordance with AR 600-8-29, sections II and III, paragraph 3-5, promotions to the rank of CW2 are field promotions and as such are governed by the field promotion authority which is a commander in the rank of LTC or higher.  His commander did not elect to promote him to the next higher grade; therefore, he was ineligible to be promoted to the rank of CW2.  Federal law requires that in order for a WO to be promoted to CW3 a selection board must be convened and an individual must be selected for promotion to the next grade.  Since the applicant's records did not appear before a CW3 promotion board for consideration under Title 10, U.S. Code (USC), section 573, he is ineligible to be promoted to the rank of CW3.

18.  The applicant did not respond to the advisory opinion.

19.  Title 10, USC, section 573 states that whenever the Secretary concerned determines that the needs of the service so require, he shall convene a selection board to recommend for promotion to the next higher warrant officer grade for warrant officers on the warrant officer active-duty list who are in the grade of CW2 or above.  Warrant officers serving on the warrant officer active-duty list in the grade of WO1, shall be promoted to the grade of CW2, in accordance with regulations prescribed by the Secretary concerned.  Such regulations shall require that an officer have served not less than 18 months on active duty in the grade of WO1, before promotion to CW2.  

20.  Army Regulation 600-8-29, in effect at the time, stated in:

	a.  Section II, paragraph 3-3a(2) that WO1 are eligible for promotion to CW2 upon the second anniversary of WO service provided the officer has served a minimum of 18 months on the active duty list as a WO1.

	b.  Section III, paragraph 3-5c states that when a promotion approval authority (LTC or higher commander, including commanders frocked to LTC) disapproves promotion to CW2, the DA Form 78 must be processed not later than the promotion eligibility date.  The recommending authority, usually the eligible officer's rater in accordance with AR 623-105, and the promotion approval authority will fully explain the reason for the recommendation on the DA Form 78.  The officers under consideration will be provided a copy of the DA Form 78 recommending non-promotion. The officer will be afforded the opportunity to provide a statement to the promotion approval authority.  The promotion review authority (PRA) (normally the first commander in the chain of command having general court-martial jurisdiction) will take final action on cases on which the promotion approval authority has recommended against promotion. Denials for promotion to CW2 will be processed for separation under applicable regulations.

21.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
2-41, in effect at the time states WO's holding the grade of WO1 and serving on active duty (AD) as warrant officers and who are not promoted to the grade of CW2 will be released from AD.  They will be released from AD and discharged on date of completion of such service unless they have a service obligation.  Those serving an obligated period of service will be retained on AD until completion of their obligation.  WO's within 2 years of qualifying for retirement will be retained on AD until the last day of the month following the month they qualify for such retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his denial of promotion to CW2 was an act of reprisal for reporting his commands illegal acts to CID.

	a.  He received a locally-filed reprimand for verbalizing a threat to the 101st Airborne Division XXXX and a referred OER which stated "He lacks the judgment and maturity to continue as a leader in Special Forces and on a Operational Detachment."  "He does not possess the maturity and attitude required for advancement in Special Forces."  The rater's and senior rater's comments were based on the applicant's courses of action in dealing with the 101st Airborne Division XXXX incident and subsequent events.

	b.  Completed IG and Army Regulation 15-6 investigations unsubstantiated his allegations that his denial of promotion to CW2 was a based on reprisal or racism.

2.  His referred OER for the rating period 1 January 2005 through 6 June 2005 caused his file to reflect an adverse action code which placed him in a non-promotable status.  Additionally, in accordance with Army Regulations, since he was non-promotable at his 2-year mark he was processed for separation at his 
2-year anniversary as a WO1.  Furthermore, promotions to the rank of CW2 are field promotions and his commander did not elect to promote him to the next higher grade; therefore, he was ineligible to be promoted to the rank of CW2.

3.  Federal law requires that in order for a WO to be promoted to CW3 a selection board must be convened and an individual must be selected for promotion to the next grade.  Since the applicant's records did not appear before a CW3 promotion board for consideration under he is ineligible to be promoted to the rank of CW3.  Additionally, he was denied promotion to CW2 before his third anniversary as a WO1 and had not yet attained 20 years of service; therefore, he was separated vice being retired.

4.  Based on the foregoing evidence there is insufficient evidence to grant the requested relief.  

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 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.
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