IN THE CASE OF:	   

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20140000736 


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 correction of her records as follows: 

* showing the rank/grade of captain (CPT)/O-3E (with prior enlisted service), effective 1 December 2012
* entitlement to active duty pay and allowances at the rank/grade of CPT/ O-3E from 1 December 2012 to 29 July 2013 (date of retirement)
* retirement by reason of disability in the rank/grade of CPT/O3-E and entitlement to back retired pay effective 29 July 2013

2.  The applicant states:

	a.  She was promoted to CPT on 1 December 2012.  However, she received a referred officer evaluation report (OER) on 14 December 2012, which triggered a Promotion Review Board (PRB) and revocation of her promotion orders.  She believes this OER and resulting PRB were the result of a personal vendetta from her commander due to the fact that there was no misconduct and therefore the referred OER was used illegally to flag her and revoke her promotion.  She (the commander) knew she (the applicant) would have to go though the humiliation of being demoted during the PRB process.  Her commander did not follow Army regulations and acted in a very sudden and unorganized way as if she wanted to punish her (the applicant) for reasons still unbeknownst to her.  

	b.  The paragraph that follows is an email she received from the PRB Action Officer, Department of the Army Promotions, U.S. Army Human Resources Command (HRC) and it explains how this process was done illegally: "According to Office of The Judge Advocate General's (OTJAG) supplemental legal review based on the below information, the PRB was found to be legally objectionable.  Pursuant to Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), dated 23 December 2004, paragraph 2-1, "[t]he effective date of a flag is the date of the incident or the date the commander (or general officer staff head) initiates the action, whichever is earlier."  Therefore, in the case of a referred OER that is based on some type of misconduct or investigation, the flag can be retroactive to the date of the misconduct or the date the investigation started.  However, in her case since there was no misconduct or investigation, the effective date of the flag is the date the referred OER was initiated, which is 14 December 2012 - which was after her promotion eligibility date (PED) of 1 December 2012."   

3.  The applicant provides:

* Memorandum of rebuttal to the revocation of promotion and referral to the PRB 
* Five DA Forms 3349 (Physical Profile)
* Email from the Officer Promotions Branch, HRC
* Request for Warrior Transition Battalion assignment
* Commander's performance statement
* Letters of support/character reference letters
* OER for the rating period 20110529-20120222
* DA Form 1059 (Service School Academic Evaluation Report)
* Leadership Evaluation Report
* Multiple Noncommissioned Officer Evaluation Reports
* Two memoranda responses to a counseling from her commander
* Memorandum of staff duty coverage by another officer
* Counseling memorandum for record

CONSIDERATION OF EVIDENCE:

1.  Having had more than 4 years of prior enlisted service, the applicant was appointed as a Regular Army commissioned officer in the rank of second lieutenant and she executed an oath of office on 14 May 2009.  

2.  She completed the Ordnance Basic Officer Leader Course and she was promoted to first lieutenant (1LT)O-2 on 14 November 2010.  She was assigned to Headquarters and Headquarters Company, 27th Brigade Support Battalion, 1st Cavalry Division, Fort Hood, TX. 

3.  Between August 2012 and January 2013, she received multiple physical profiles related to behavioral/mental health.  
4.  She was considered and recommended for promotion to CPT by the Fiscal Year 2012 (FY12) CPT Army Selection Board, which convened on 2 April 2012.

5.  On 4 September 2012, a psychiatrist of the 1st Cavalry Division Behavioral Health Clinic recommended her assignment or attachment to the Warrior Transition Unit at Fort Hood due to ongoing behavioral/mental health issues. 

6.  On 26 November 2012, HRC published Orders 331-101 promoting her to CPT with an effective date and date of rank of 1 December 2012. 

7.  During December 2012, she received a referred OER, covering the rating period 20120223 through 20121101, with a rating of "Unsatisfactory Performance - Do Not Retain" by her rater and "Do Not Promote/Below Center of Mass" by her Senior Rater.  The OER was signed by her Rater on 14 December 2012 and by her Senior Rater on 15 January 2013. 

8.  On 5 February 2013, HRC published Orders 036-002 revoking her promotion orders, dated 26 November 2012.  The special instructions read "Officer's promotion has been administratively delayed, based upon adverse flagging action." 

9.  On 15 February 2013, her immediate commander rendered a performance statement indicating her performance during the period November 2011 through July 2012 was successful.  He departed in July 2012 and he knew she struggled with behavioral health issues that prevented her deployment. 

10.  On 6 May 2013, an informal physical evaluation board (IPEB) considered her case and found her physically unfit.  The IPEB recommended a 70-percent disability rating and her placement on the temporary disability retired list (TDRL). 

11.  On 5 June 2013, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 156-0141 releasing her from active duty by reason of temporary disability effective 28 July 2013 and placing her on the TDRL in her retired rank/grade of 1LT/O-2 effective 29 July 2013.  

12.  She retired on 28 July 2013 by reason of temporary disability.  Her DD Form 214 shows she completed 4 years, 2 months, and 15 days of creditable active service.  Her DD Form 214 also shows in:

* Item 4a (Grade, Rate or Rank) – "1LT"
* Item 4b (Pay Grade) – "O-2"
* Item 12i (Effective Date of Pay Grade) – "2010-11-14"

13.  An advisory opinion was received from HRC on 26 February 2014 in the processing of this case.  The advisory official stated based on a review of the information, the advisory opinion request and a supplemental legal review of her case by OTJAG, HRC finds the applicant's request for promotion to CPT does have merit.

	a.  The applicant was recommended for promotion to CPT on  the FY12 CPT, Army Selection Board, which convened on 2 April 2012.  She was promoted to CPT with an effective date of 1 December 2012.  She received a referred OER for the period 20120223 thru 20121101.  The Rater and Senior Rater marked the referred OER as "Unsatisfactory Performance, Do Not Promote."  The referred OER was placed into her Army Military Human Resource Record (AMHRR) on 24 January 2013.

	b.  In accordance with Army Regulation 600-8-29 (Officer Promotions), paragraph 1-20(c), if within 6 months after the effective date of promotion new information results in a determination by Headquarters, Department of the Army 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.  Therefore, her promotion order to CPT was revoked on 5 February 2013, and a Flag Code FA (Removal from a Selection List - HQDA Initiated) was initiated effective 1 November 2012 (the thru date of the referred OER) and the officer was referred to a Promotion Review Board.

	c.  During its review, OTJAG found her case to be legally objectionable.  Pursuant to Army Regulation 600-8-2 (23 December 2004 version), paragraph  2-1 ,"[t]he effective date of a flag is the date of the incident or the date the commander (or general officer staff head) initiates the action, whichever is earlier."  Therefore, in the case of a referred OER that is based on some type of misconduct or investigation, the flag can be retroactive to the date of the misconduct or the date the investigation started.  Since there was no misconduct or investigation started, the effective date of the FA flag would have been the date the referred OER was signed, 14 December 2012 - after her promotion date of 1 December 2012.  The PRB was returned without action and the PRB was concluded and closed effective 28 June 2013.  Any promotion or allocation of associated back pay and allowances can only occur upon an Army Board for Correction of Military Records directive due to her current TDRL status.

14.  The applicant was provided with a copy of this advisory opinion but she did not respond. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to CPT by the FY12 promotion board.  A promotion order was published on 26 November 2012 to promote her to CPT with an effective date and date of rank of 1 December 2012. 

2.  Also during December 2012, her rating officials rendered a referred OER that resulted in a flag and a subsequent promotion review board.  This in turn led to the revocation of her promotion orders on 5 February 2013.  While a referred OER that is based on misconduct or an investigation may lead to a retroactive flag and thus place a member in a non-promotable status, this is not the case here.  Her referred OER is not based on misconduct or an investigation.  The flag would have been effective on the date the OER itself was initiated - in this case 14 December 2012, a date that is clearly after her effective date of promotion, 1 December 2012 

3.  It appears some errors were committed in the processing of her case.  HRC acknowledges the errors.  Therefore, she is entitled to correction of her records to show her promotion to CPT was never revoked with entitlement to back pay and allowances.  She is also entitled to correction of her DD Form 214 to show her rank/grade of CPT/O-3 and placement on the TDRL in the rank of CPT with entitlement to back retired pay. 

4.  Her records should be corrected as recommended below. 

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* revoking Order Number 036-002, issued by HRC on 5 February 2013, thus reestablishing her promotion effective 1 December 2012
* paying the applicant full active duty back pay and allowances (as an O-3E) from 1 December 2012, the date she was promoted to CPT to 28 July 2013, the date she was retired
* correcting items 4a, 4b, and 12i of her DD Form 214 to show the entries CPT, O-3, and 2012-12-01 respectively
* correcting her retirement orders (Orders 156-0141, issued by Fort Hood, TX, on 5 June 2013) to show she was placed on the TDRL, effective 29 July 2013 in the rank of CPT vice 1LT
* paying her back retired pay at the rank of CPT (an an O-3E) effective 
29 July 2013




      ___________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)                                         AR20140000736





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ABCMR Record of Proceedings (cont)                                         AR20140000736



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