IN THE CASE OF:  	  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140013096 


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 his records to show –

* he was promoted to the following rank/grade, with the following effective dates and dates of rank (DOR) –
 
* sergeant (SGT)/E-5 – 1 February 2011
* staff sergeant (SSG)/E-6 – 1 October 2011
* sergeant first class (SFC)/E-7 – to be determined (with waivers for military/civilian education due to injustice)

* the following actions –

* scheduling for attendance at Army Recruiting School
* reclassification into military occupational specialty (MOS) 79R (Recruiter)
* removal of all unfavorable information from his military records
* reinstatement of his security clearance

2.  The applicant states that actions taken by leadership in his chain of command have adversely affected him financially, physically, mentally, and spiritually.

   a.  On 1 October 2009, he submitted a Green-to-Gold packet to become a commissioned officer.  Following this submission, the command's attitude towards him became negative and the command decided to conspire against him because the unit had received deployment orders for Operation Enduring Freedom (OEF).  On 14 October 2009, a suspension of favorable personnel actions (Flag) was initiated on his records before the Green-to-Gold selection board convened.  As a result, he was unqualified to receive a Green-to-Gold scholarship and he was not selected.  In addition, he was deprived of tuition assistance and forced to drop out of college courses he was enrolled in due to Uniform Code of Military Justice (UCMJ) actions taken against him by the command.  This ruined his opportunity for further education.

   b.  He had less than 30 days to pack his Organizational Clothing and Individual Equipment (OCIE) and store his personal property in order to deploy with the unit to Afghanistan on 2 January 2010.  In addition, he was denied a request for leave to visit his family prior to his unit's deployment.

   c.  He acknowledges he missed a 0915 hours (date not specified) accountability formation, but that was because the platoon sergeant instructed him to report to the Audiology department at 0900 hours.  In fact, he obtained a sworn statement from the platoon sergeant to confirm this.  Nonetheless, the commander found him guilty and imposed nonjudicial punishment (NJP), but he appealed the NJP.  On the day of the appeal, the command surrounded him and instructed him to give them the documentation he was taking to the appeal.  He refused, the command became hostile, and senior leaders were directed to hold him down while they grabbed the sworn statement.  Two hours later when he reported for the appeal, the battalion commander denied the appeal, forced him to sign the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), and imposed the punishment of reduction to private first class (PFC)/pay grade E-3.  As a result, he lost his E4 promotable status.  He adds the noncommissioned officer (NCO) refused to give him another statement because he did not want to get involved.

   d.  He sustained injuries (on 4 May and 4 June 2010) during his deployment in support of OEF that caused him a lot of pain and suffering.  As a result, he was medically evacuated (MEDEVAC) from Forward Operating Base (FOB) Wright in Afghanistan on 28 June 2010.  

   e.  On 30 June 2010, the FOB command initiated a Flag against him and conspired with the rear detachment.  He was placed in an absent without leave (AWOL)/dropped from the rolls (DFR) status while on medical temporary duty (TDY), even though the command was briefed on his surgery and proper medical TDY procedures by officials of Womack Army Medical Center (WAMC).
   f.  He states he was scheduled for promotion on 1 July 2010.  He realized the conspiracy when the command decided to impose field grade NJP against him.  In addition, NCOs were forced to falsify counseling statements (dated 29 June 2010) about his duty performance after he had been medically evacuated.

   g.  He was forced to initiate a DA Form 31 (Request for Leave) for five days of ordinary leave.  Then, the command prepared a second DA Form 31, dated 
21 October 2010, for 14 days of convalescent leave.  However, the form did not contain a social security number and his signature was forged.  The command then prepared a third DA Form 31, dated 18 October 2010, for 30 days of convalescent leave.  This form provided further evidence of the conspiracy.

   h.  He sought assistance from the Ombudsman at WAMC and members of Congress.  The Ombudsman informed the command the hospital commander was the sole authority for granting or extending convalescent leave according to Army regulations.  Nonetheless, the command changed his duty status to DFR and he was unsuccessful in getting any further assistance from the command.

   i.  The command received inquiries on his behalf from members of Congress and the Secretary of the Army for its failure to provide medical assistance.  The written responses provided by the command were deceitful and he began to fear for his life.

   j.  He initiated inquiries to the Medical Evaluation Board (MEB) counsel at WAMC and 82nd Airborne Division Inspector General (IG), but was unsuccessful in getting any assistance.  He did succeed in getting a response from the command after he filed a Redress of Grievances under Article 138, UCMJ.  As a result, the command did submit a request to credit his pay account with five days of ordinary leave.  However, their initial leave action caused a domino effect for future problems that would have never occurred had they followed proper procedures from the beginning.

   k.  He was issued a DA Form 3349 (Physical Profile) that specified limitations on certain activities; however, the command decided to ignore his physical profile by giving him a “lawful” (i.e., unlawful) order to perform push-ups.

   l.  After he had been MEDEVACed from Afghanistan, a rocket attack on FOB Wright destroyed the unit's ISU-90 that stored Army equipment, including his OCIE that he had left behind when he was MEDEVACed.  When he learned about the incident, he initiated a claim at the Staff Judge Advocate (SJA) office at Fort Bragg, NC; however, the command initiated a Financial Liability Investigation of Property Loss claiming that they thoroughly inventoried all of his OCIE at Fort Bragg on 18 November 2010, and he was responsible for all of the lost gear.  He asserts that his OCIE was destroyed in Afghanistan prior to the investigation, it never arrived at Fort Bragg, and he was not responsible for its loss.  He adds that when the command placed him in an AWOL status, it did not ensure that his personal property was protected from theft and damage.  He initiated another claim through the SJA and also filed a police report against the unit that included theft of his Class A and physical training (PT) uniforms.

   m.  He was not receiving pay from the Defense Finance and Accounting Service (DFAS) due to the erroneous AWOL/DFR status.  The command ordered him to report for duty in his Class A uniform, knowing he did not have and could not afford to purchase uniforms.  He was also counseled and recommended for UCMJ action for not being in the proper PT uniform.  This was all in an effort to add additional charges to the UCMJ packet the unit was compiling against him.

   n.  He was then assigned to an unoccupied room in a separate building from other Soldiers in the unit and denied a meal card, which caused him to go without eating for days and also suffer severe migraine headaches.  His health, finances, and career were deteriorating and he contemplated thoughts of suicide.

   o.  He then received a Red Cross message notifying him of the death of his grandfather.  His grandfather had helped raise him as a boy and was also an integral part in his decision to join the Army.  He adds that the unit would not allow him to take leave to mourn the death of his grandfather.

   p.  Leaders in his chain of command notified him that he would be separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He was also belittled and subjected to derogatory comments.  He initiated an Equal Opportunity (EO) complaint when he could no longer tolerate the harassment.

   q.  The brigade commander decided to schedule a summary court-martial despite a substantial amount of evidence refuting the charges.  Then, the brigade commander decided to schedule an Article 32, UCMJ, hearing and a general court-martial.  He states, "Although there was a large quantity of leaders that could have spoken out against this treachery of the 82nd Airborne Division, I still found myself at a general court-martial facing a criminal conviction and over a decade in prison."

   r.  He reports the case was closed favorably, he was exonerated, and his attorney requested a transfer for him with a recommendation that he be reassigned out of the brigade to foster rehabilitation or discharge, if warranted.  The request was denied and he was assigned to the headquarters element of the brigade where the legal team from the court-martial was also assigned.  Once again, he was subjected to reprisal and disrespect in an extremely hostile environment.  His exoneration simply made every leader in the command more furious.

   s.  After submitting inquiries to the 82nd Airborne Division IG, on 25 July 2012, his E-4 DOR was adjusted to 1 July 2010.

   t.  Past and present leaders throughout his unit did not follow Army regulations, failed to act on a request for medical attention, displayed unfair treatment, and deprived him of his rights and privileges.  He adds that they possibly violated Articles 78, 81, 92, 93, 94, 98, 107, and 131 of the UCMJ.

   u.  He is no longer able to perform duties in MOS 13B (Cannon Crewmember) due to his medical status and he has requested a review under the MOS Administrative Retention Review (MAR2) process.

   v.  There are no negative reports or counseling statements that reflect a lack of promotion potential.  He requests promotion to SGT/E-5 with an effective date and DOR of 1 February 2011, based on 586 promotion points (adding the promotion point cut-off score was 448 points); promotion to SSG/E-6 with an effective date and DOR of 1 October 2011, based on 586 promotion points with the Warrior Leadership Course (adding the promotion point cut-off score was  450 points); and promotion to SFC/E-7 with waiver of the military and civilian education requirements due to injustice.

   w.  He was accepted into Campbell University's Reserve Officers' Training Corps (ROTC) Program, awarded the Army Recruiter Badge with Gold Star, and successfully served in several positions during his deployments in both Iraq and Afghanistan over the past 10 years.  These things attest to his character and promotion potential.  He adds that the Army is facing significant force reductions, and correcting the injustices he has suffered will allow him to serve as a senior NCO and have a positive impact on Soldiers and leaders in the U.S. Army.

   x.  On 21 September 2014, the applicant provided additional comments.  He noted that he has learned that a lot of the individuals involved in his case are confused with the issues and his concerns.  He explains, as follow:  first, there is toxic leadership in the Army; second, he was exonerated by a general court-martial; third, those in positions of leadership must stop trying to find ways to make him seem negative or mentally ill; and fourth, there is no such thing as halfway right or halfway wrong – it is either right or wrong.  He notes that he conducted and completed his own investigation and he is the only person who can explain every event going back to October 2009.  He intends to write a letter to the President of the United States requesting promotion to the rank of captain and the Medal of Honor for his personal acts of valor above and beyond the call of duty.  He asserts that both the 82nd Airborne Division IG and the Department of the Army, Office of the IG (DAIG) chose not to trust him, ignored him, and watched him suffer.  In his research he learned that in a conspiracy, with minor exceptions, all participants are charged with the same offenses and may be found guilty of all crimes related to the conspiracy.  So, those involved in his case may be guilty by association of the overt acts performed by leaders in command.

3.  The applicant provides a copy of an "Attached Documents" list, dated 24 July 2014, that identifies the 20 documents he submits in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) for a period of 4 years on 
15 August 2002.  Upon completion of training he was awarded MOS 13B.  After multiple reenlistments, he continues to serve on active duty.

2.  He served in Iraq in support of Operation Iraqi Freedom (OIF) during 2002 and 2003.  He was promoted to the rank/grade of specialist SPC/E-4 effective    1 May 2004.

3.  He completed the Warrior Leader Course on 6 August 2009.

4.  He was reduced to PFC/E-3 on 2 November 2009.

5.  He deployed to Afghanistan in support of OEF in January 2010.  He was awarded the Purple Heart for wounds received in action on 4 May 2010.  He was also awarded the Combat Action Badge.

6.  He was promoted to SPC/E-4 effective 1 July 2010.

7.  Orders A-07-019828, issued by Landstuhl Regional Medical Center on 8 July 2010, reassigned him to Battery B, 321st Field Artillery Battalion, Fort Bragg, NC, with attachment to the Warrior Transition Battalion, Fort Bragg, NC, to report to WAMC on 8 July 2010 for a period not to exceed 10 days ending on 17 July 2010.  The orders also show his unit commander had responsibility for personnel service support, to include UCMJ and all other forms of personnel and legal administrative support, except Reserve Component promotion authority.

8.  Two DA Forms 4187 (Personnel Actions) show his duty status was changed from:

* present for duty (PDY) to AWOL, effective 0630 hours, 18 November 2010
* AWOL to DFR, effective 0630 hours, 17 December 2010

9.  A DD Form 616 (Report of Return of Absentee), dated 8 August 2012, shows he surrendered to military authorities and returned to his unit, effective 0800 hours, 31 January 2011.

10.  There is no evidence of record that shows he was recommended for promotion to the rank/grade of SGT/E-5.

11.  On 14 December 2012, he submitted a DD Form 149 (Application for Correction of Military Record under the Provisions of Army Title 10, U.S. Code, Section 1552) to the Army Board for Correction of Military Records (ABCMR).

12.  In the processing of the case, an advisory opinion was obtained from the Chief, Department of the Army (DA) Promotions, U.S. Army Human Resources Command (HRC).

   a.  The advisory official provided a favorable analysis regarding the applicant's eligibility for promotion to SGT/E-5 and SSG/E-6, but a lack of eligibility for consideration by the Fiscal Year 2013 (FY13) SFC Promotion Selection Board (PSB), based on his estimated SSG/E-6 DOR.

   b.  The advisory official stated the applicant's effective date and DOR for SPC/E-4 should reflect 21 January 2008, his effective date for SGT/E-5 would have been 1 January 2009; and he would have been eligible for consideration for promotion to SSG/E-6 on 1 January 2010.

   c.  Using information consolidated from the applicant's military records, a
DA Form 3355 (Promotion Point Worksheet) was constructed that produced an estimated 539 promotion points, effective 1 January 2010, which resulted in his estimated promotion to SSG/E-6 with an effective date of 1 August 2011.  In reviewing the prerequisites for the FY13 SFC PSB, the Basic Active Service Date (BASD) was from 5 February 1991 through 5 February 2007 with a DOR of 
5 February 2010 or earlier.  The applicant met the BASD requirement, but did not qualify with the (above) estimated SSG/E-6 DOR and effective date.

   d.  The advisory official provided a timeline for review in support of the advisory opinion that shows –

      Date		   Action			Rank/Grade	   Effective Date/DOR   Verification

 17 May 04	Promotion	 	   SPC/E-4			1 May 04			  eMILPO
 27 Nov 05	Lateral Promotion  CPL/E-4 		    26 Oct 05			  eMILPO
 12 Jun 07	Reduction		   PFC/E-3		    21 May 07				NJP
   8 Feb 08	Promotion		   SPC/E-4		    21 Jan 08			  eMILPO
 14 Oct 09	Flag Initiated	   	   SPC/E-4		    14 Oct 09		   Flag History
 18 Nov 09	Reduction		   PFC/E-3 			2 Nov 09			  eMILPO
 29 Mar 10	Flag Closed	   	   PFC/E-3 		    14 Oct 09		   Flag History
 26 May 10	Purple Heart		   PFC/E-3 			4 May 10			   OMPF
   9 Jun 10	MEDEVAC		   PFC/E-3							    Commander
 28 Jun 10	MEDEVAC		   PFC/E-3								 Applicant
 30 Jun 10	Flag Initiated	   	   PFC/E-3		    30 Jun 10		   Flag History
  10 Jul 10	Failure to Report	   PFC/E-3							    Commander
 18 Nov 10	AWOL				   PFC/E-3		    18 Nov 10			   OMPF
 17 Feb 11	PDY				   PFC/E-3		    31 Jan 11		    Unit Report
   2 Mar 11	Flag Initiated	   	   PFC/E-3		     2 Mar 11		    Sep. Action
 30 Apr 12	Flag Closed		   PFC/E-3		     2 Mar 11		    Sep. Action
 30 Apr 12	Flag Closed		   PFC/E-3		    30 Jun 10		    Flag History
 16 Aug 12	Promotion		   SPC/E-4			1 Jul 10			  eMILPO

Advisory Official's Notes:

18 November 2009 – No record of NJP or derogatory information in his Official Military Personnel File (OMPF); Flag closed favorably; E-4 should have been restored with effective date/DOR of 21 January 2008/29 March 2010 – Flag closed favorably after 5 months;  E-4 should have been restored with effective date/DOR of 21 January 2008/30 April 2012 – 2 Flags were in effect, 13 months and 2 years, respectively, that prevented applicant from being promoted; no adverse action taken.

13.  On 10 April 2013, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  He was informed that the advisory opinion from HRC contains a favorable recommendation.  He was advised that the ABCMR can adopt the advisory opinion recommended in whole, in part, or reject the recommendation based on the Board's analysis of the facts and circumstances of his case.  The applicant did not provide a response.
 
14.  DAIG, Washington, DC, memorandum, dated 18 October 2013, subject:  Request for Release of IG Records for Official Use (pertaining to the applicant), shows the Deputy Legal Advisor informed the Army Review Boards Agency that the DAIG was unable to approve the request for IG records because the IG investigation was on-going.

15.  Two ABCMR, Arlington, VA, memoranda, dated 24 October 2013 (AR20130000321) and 27 November 2013 (AR20130020236), returned the applicant's applications for retroactive promotion to the ranks/grades of SGT/E-5 through SFC/E-7 because he had ongoing investigations being conducted by the DAIG and 82nd Airborne Division IG, respectively.  He was informed that those administrative remedies must first be exhausted prior to consideration of his case by the ABCMR.

16.  In support of his application the applicant provides the following documents:

   a. 	Headquarters, 82nd Airborne Division, Fort Bragg, NC, memorandum, dated 8 April 2014, that shows the Office of the IG concluded an inquiry of reprisal the applicant made against service members assigned to the
82nd Airborne Division and informed him they were unable to complete the inquiry without further information from him.

   b.   A memorandum for record (MFR), dated 10 July 2014, with enclosures, that shows the applicant provided the 82nd Airborne Division, Office of the IG, additional documentation pertaining to promotions and requested the IG open a new case concerning retroactive promotion to the ranks/grades of SGT/E-5 through SFC/E-7.

   c. 	Headquarters, 82nd Airborne Division, Fort Bragg, NC, memorandum, dated 22 July 2014, that shows the Office of the IG conducted a thorough inquiry into his request for assistance.  The applicant was informed that Soldiers must seek and exhaust the prescribed redress or remedy process before an IG can provide assistance.  He was also informed that the IG is limited to a review of the redress process to determine if the Soldier was afforded the due process provided by law or regulation.  Accordingly, the applicant was informed the
82nd Airborne Division IG would take no further action pertaining to the issue at this time.

   d.  DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag), that shows a Flag was initiated, effective 30 June 2010, based on adverse action.  It also shows the commander signed it, on 5 April 2011, after the effective date.

17.  In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's military pay account, including dates for his promotions/reductions, any time lost, and pay inquiries.  A DFAS official provided the following information:

   Grade				Effective Date
   E-1				15 August 2002
E-2 				15 February 2003
E-3				15 April 2003
E-4 				1 May 2004
E-3 				21 May 2007
E-4 				21 January 2008
E-3 				2 November 2009
E-4 				1 July 2010


Duty Status			Period (from – through)
Leave					25 August 2010 – 18 September 2010
Leave					13 October 2010 – 16 October 2010
AWOL					18 November 2010 – 17 December 2010
Deserter				18 December 2010 – 30 January 2011
PDY					31 January 2011 – 30 August 2011
Leave					31 August 2011 – 20 September 2011

18.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) provides policies, operating tasks, and steps governing the OMPF.

   a.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   b.  Table B-1 (Authorized Documents) provides guidance for filing the 
DA Form 2627.  It shows no UCMJ, Article 15, or supporting documents will be filed for E-4 and below.

19.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Chapter 3 (NJP) prescribes requirements, policies, limitations, and procedures for commanders at all levels imposing NJP; members on whom this punishment is to be imposed; and other persons who may take some action with respect to the proceedings.

   a.  Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents), subparagraph b (Original of DA Form 2627 - Place of filing), for Soldiers who are at the rank of SPC or corporal and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files (emphasis added).  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of 
DA Form 2627 as "not applicable."  When the transfer of a Soldier to a new GCMCA jurisdiction is for the purpose of receiving medical treatment, TDY or deployment, the Article 15, UCMJ form will accompany the Soldier to the new GCMCA, and back to the imposing GCMCA if the Soldier returns to that imposing 
GCMCA jurisdiction following the medical treatment, TDY, or deployment.  The 
2-year rule will apply in these situations.
   
   b.  Paragraph 3-28 (Setting aside and restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.
   
    	(1)	 NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15.  In addition, the imposing commander or successor-in-command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the UCMJ, Article 15, itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15, or punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  

    	(2)  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

    	(3)  In cases where administrative error results in incorrect entries on a 
DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

    	(4)  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627-2.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.


20.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions –
Flag) prescribes policies, operating rules, and steps governing the suspension of favorable personnel actions, hereafter referred to as "Flag."  The purpose of a Flag is to prevent and/or preclude the execution of favorable actions to a Soldier who may be in an unfavorable status (not in good standing).

21.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 1 (Introduction), paragraph 1-10, provides, in pertinent part, that Soldiers (E-4 through E-8) are nonpromotable to a higher grade when the Soldier has incurred a Flag under the provisions of Army Regulation 600–8–2.

22.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to SGT/E-5 on 1 February 2011, SSG/E-6 on 1 October 2011, and SFC/E-7 on a date to be determined, based on military/civilian education waivers and due to injustice.  In addition, all unfavorable information should be removed from his military records, his security clearance should be reinstated, he should be scheduled for attendance at Army Recruiting School, and reclassified into MOS 79R.

2.  Although he tries to justify or excuse his behavior, the applicant acknowledges he received NJP and that he was reduced to grade E-3 shortly before his unit deployed to Afghanistan in January 2010.  In addition, the evidence of record shows he was previously reduced to grade E-3 on 2 November 2009.

   a.  There is no evidence of record that shows the commander who imposed the punishment, a successor-in-command, or a superior authority set aside any of the punishment imposed upon the applicant under the NJP.

   b.  The evidence of record shows the Army regulation that governs the filing of documents in the OMPF provides that UCMJ, Article 15, or supporting documents will not be filed in the OMPF for E-4 and below (emphasis added).

   c.  Thus, the evidence of record does not support the HRC advisory official's rationale that the applicant's grade should have been restored to grade E-4, with an effective date of 21 January 2008, based upon the fact that there is no record of NJP in the applicant's OMPF.

3.  Records show his most recent promotion was to SPC/E-4, effective 1 July 2010.

4.  The evidence of record shows he had lost time (i.e., was in an AWOL and DFR status) from 18 November 2010 through 30 January 2011 and that a Flag was imposed during this period.

   a.  This period of lost time is recorded in both his OMPF and military pay records.  There is no available evidence of record that shows this information is incorrect or that the period of lost time was found to be invalid.  As such, the applicant was in a non-promotable status (at a minimum) during the period of lost time.
 
   b.  Thus, the evidence of record does not support the HRC advisory official's rationale that the Flag improperly prevented the applicant from being promoted because there is no record of NJP or other derogatory information in his OMPF.  Moreover, this erroneous conclusion invalidates the subsequent conclusions the advisory official arrives at with respect to the applicant's promotion eligibility status for grades E-5 through E-7.

5.  The evidence of record shows the two most recent Flags imposed against the applicant were both closed on 30 April 2012.  However, there is no evidence of record that shows the applicant was recommended by his commander for promotion to grade E-5 during the more than 2 years of time that has elapsed since the two Flags were lifted.  Thus, it is reasonable to conclude the applicant did not demonstrate the potential for promotion to the next higher grade during this period and, therefore, he is not entitled to promotion. 

6.  The applicant provides no evidence in support of his contentions that NCOs and officers in his chain of supervision/command did not follow Army regulations, failed to act on a request for medical attention, conspired against him, were deceitful and hostile toward him, harassed and improperly treated him, subjected him to belittling and derogatory comments, displayed unfair treatment, and deprived him of his rights and privileges.  In addition, he provides no evidence that any of his allegations were substantiated by the various offices/agencies that investigated his claims.

7.  Therefore, based on the evidence of record, and as a result of the aforementioned conclusions, there is no basis 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 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)                                         AR20140013096



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ABCMR Record of Proceedings (cont)                                         AR20140013096



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