IN THE CASE OF

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130020493 


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, consideration for promotion to captain (CPT) under the fiscal year 2012 (FY12) special selection board (SSB) criteria and, if necessary, FY13 criteria.  

2.  The applicant states, in effect, he was wrongfully flagged by his battalion commander after he made the list for CPT in FY11.  An investigation was initiated to look into the improper actions.  The investigation took some time, resulting in him missing two other boards for CPT.  He is asking that he be put on the appropriate board that he missed due to the slow nature of the investigation.  He further states he should have been promoted 2 years ago to CPT; this unjust flagging action has a negative effect on his military career.

3.  The applicant provides his Notification of Selection for Promotion to CPT. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted to the rank of first lieutenant in the U.S. Army Reserve (USAR) on 14 December 2007. 

2.  The applicant was considered and selected for promotion by the FY11 CPT Department of the Army (DA) Reserve Components (RC) Promotion Selection Board.


3.  On 15 January 2011, a flag was initiated against the applicant and the reason listed for the flag was "PROM SUSP; PARA 3-18a AR135-155 AND DEPT OF THE ARMY POLICY."  The flag was approved by the Chief, DA Promotions on 7 September 2011.  The available evidence does not show he was flagged by his battalion commander.

4.  On 3 March 2011, the FY11 CPT Army Promotion List (APL) RC Selection Board Results were released and the applicant's name is on the list.

5.  The applicant was given a referred Officer Evaluation Report (OER) for the rating period 29 September 2010 through 28 September 2011.  The OER shows he was given a "NO" in the Army value of integrity.  His rater marked the "UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE" box and entered the remark "Promotion should be delayed until maturity is realized."  His senior rater marked the "DO NOT PROMOTE" box.

6.  On 13 July 2012, the applicant acknowledged receipt of a Promotion Review Board (PRB) Notification, dated 10 July 2012.  His acknowledgement indicated that he intended to submit a rebuttal for consideration within the suspense after he reviewed the referred OER for the period 29 September 2010 through 
28 September 2011 and any adverse information within his Official Military Personnel File as it related to this incident.

7.  His record is void of evidence that he was considered for promotion by the FY12 and FY13 Department of the Army RC Mandatory Selection Boards.

8.  On 19 December 2012, the Secretary of the Army directed removal of the applicant from the FY11, RC, CPT, AR Non-AGR, APL, Competitive Category, Promotion Selection List under the provisions of Title 10, U.S. Code 14310, Executive Order 13358, Secretary of Defense delegation to the Secretary of the Army dated 20 March 2006 and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, U.S. Army Human Resources Command (HRC).  The advisory official stated that based on a review of records and the information provided, that office found the applicant's request had no merit.  The official stated the applicant was selected for promotion to CPT under the FY11 criteria; however, prior to being promoted he was flagged and referred to a PRB.  The PRB was based on him receiving a referred OER after the convene date of the promotion selection board.  The applicant remained in a promotable status under the FY11 criteria until the Secretary of the Army's decision to remove him on 19 December 2012.  Therefore, the applicant was not eligible for promotion consideration under the FY12 or FY13 criteria.  The applicant's initial chain of command was informed of the results on 2 January 2013, followed by HRC's direct notification on 7 January 2013. 

10.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded by stating that after he was selected for promotion to CPT he received an inappropriate flag from his battalion commander.  He stated months had passed without his battalion commander signing his promotion documents.  When S-1 inquired about the documents, his battalion commander indicated the applicant was flagged.  Since he knew of no reason for being flagged and was also unaware of such an action, he initiated an Inspector General (IG) investigation which prolonged the process of the PRB.  As a result he missed two promotion cycles (FY12 and FY13).  He states he is not disputing his removal from the FY11 Promotion List but he wants to be placed on the FY12 list.  He further states that his current brigade commander is looking into the situation and has asked the new IG to look into the case.

11.  The applicant was selected for promotion by the FY14 CPT DA RC Mandatory Selection Board.  HRC Orders B-03-401213, dated 26 March 2014, promoted him to CPT with an effective date and date of rank of 3 March 2014, which was the earliest date possible based on the approval date of the promotion list.

12.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.

	a.  Paragraph 3-18 prescribes the authority and policy for removing an officer's name from a promotion list.

	b.  Paragraph 3-19 states officers who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by an SSB.  SSBs convened under the Reserve Officer Personnel Management Act on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongfully not considered by mandatory promotion boards that convened on or after 1 October 1996. 

        (1)  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, were not submitted to a mandatory promotion selection board for consideration.
        (2)  Records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines an officer was eligible for promotion consideration; however, the officer's records were, through error, not submitted to a mandatory promotion selection board.

   c.  Paragraph 4-11 states, in pertinent part, that an officer’s promotion is automatically delayed when the officer is under, or should be under, suspension of favorable personnel actions Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)).

13.  Army Regulation 600-8-2 (Flags)) prescribes Army policy for the suspension of favorable personnel actions (Flag) function of the military personnel system.  It states the suspension of favorable actions on a Soldier is mandatory when military or civilian authorities initiate any investigation or inquiry that may potentially result in disciplinary action, financial loss, or other loss to the Soldier’s rank, pay, or privileges.  Commanders, general officer staff heads, and heads of Headquarters, Department of the Army (HQDA) staff agencies must ensure that favorable personnel actions are suspended in accordance with the criteria contained in this regulation.

DISCUSSION AND CONCLUSIONS:

1.  He was selected for promotion to CPT by the FY11 RC Mandatory Promotion Selection Board.  He was flagged by HQDA.  There is no evidence the flag was improper.  On 19 December 2012, the SA removed him from the FY11 promotion list.

2.  The applicant was still flagged during the time the FY12 and FY13 promotion boards were convened.  Therefore, he was not eligible to be considered by those boards.

3.  There was no evidence of an error or injustice in regard to him not being considered for promotion by the FY12 and FY13 promotion boards that would warrant consideration by an SSB under the FY12 or FY13 criteria. 

4.  The applicant was promoted to CPT in March 2014.  

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.




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)                                         AR20130020493



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ABCMR Record of Proceedings (cont)                                         AR20130020493



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