IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20150006287 


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 date of rank to lieutenant colonel (LTC) from 9 March 2015 to 1 May 2012.

2.  The applicant states 

	a.  She has served in the Army for more than 29 years and on feels an injustice has occurred with respect to her promotion to LTC.  On 27 November 2011, she was considered a subject of a criminal investigation and therefore, she was flagged.  She has been fighting the flagging action for almost 4 years.  When the Department of Justice (DOJ) cleared her from the investigation in January 2015, her chain of command decided to take administrative action in the form of a General Officer Memorandum of Reprimand (GOMOR) for an allegation that was dated between June and December 2011.

	b.  She request an exception to the provisions of Army Regulation (AR)    600-8-29 (Officer Promotion) so that her date of rank can be corrected to reflect her actual effective date of rank of 1 May 2012.  Her current date of rank of 
9 March 2015 is due to receipt of a GOMOR but the circumstances that led to this were an injustice to her.  Currently she is being asked to adhere to regulations that were put into place to support Army flagging actions and requirements for a local GOMOR in which the investigations have reasonable time lines, not DOJ cases which can take up to 5 years.

	c.  AR 600-8-2 (Suspension of Favorable Personnel Action) clearly states that "Flags are not to be used for punishment or restriction, but as an administrative tool."  Since she was promotable and flagged for over 3 years this action turned into punishment.  Her effective date of rank is not 1 May 2012 only because she was flagged since 27 November 2011 pending the results of a civilian investigation.  The flag was not removed properly once DOJ cleared her.  Instead, she received a locally filed GOMOR.  According to AR 600-8-29, paragraph 1-21, when an officer's promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the active date of rank (ADOR), effective date (for pay and allowances), and position on the Active Duty List (ADL) he or she would have received had there been no delay.  However, if promotion was delayed because of disciplinary action resulting in a Memorandum of Reprimand, regardless of filing disposition, then the ADOR and effective date will be the day after the date the reprimand was actually imposed or directed to be filed in the official military personnel file (OMPF) or Military Personnel Records Jacket (MPRJ), whichever is later.

	d.  She clearly understood the reason why she was flagged in 2011 due to an ongoing investigation.  What she does not understand is after her status changed in the investigation and she was no longer a subject how she was now pending adverse action (AA).  Her chain of command, instead of closing out the "M" code flag, changed it to an “AA” flag and made a recommendation for her to receive a GOMOR using the same allegations that the DOJ cleared her from.  The reason why she believes this was injustice is that her original reason for being flagged should have been closed favorably.  This is fundamentally unfair.  She was reprimanded for the sole purpose of holding her accountable for alleged actions that happened over 3 years ago and of which she was cleared, plus the flagging action already took care of holding her accountable.  She understands the purpose of a GOMOR is to hold someone accountable for their actions but yet be given the opportunity to overcome this.  Because of a regulation she cannot overcome this due to the ripple effect of both actions.  Pursuant to AR 600-8-29, if she receives a GOMOR, no matter how it is filed, her DOR will be the effective date of the GOMOR and this is what she is requesting an exception to policy for. 

	e.  She deployed in July 2011 with I Corps but was tasked out to support the National Training Mission Afghanistan on 6 July 2011.  One of her duties while in Afghanistan was as a Contracting Officer Representative (COR).  In this capacity she oversaw a contract between Computer Science Corporation (CSC) and Communications Electronic Command (CECOM) along with 19 other contracts supporting the National Training Mission Afghanistan (NTMA).  The contractor was under investigation and she was a subject because she allegedly supervised him (all this was proven not true). 
	f.  The Impact of the flag and locally filed GOMOR on her career is substantial.  She believes she was effectively reduced in rank without due process.  The delay of her promotion and now the effective DOR will keep her behind her peer group both in rank and in duty positions.  Additionally, on 
1 December 2013, she had 19 years of active service and should have been eligible to request retirement; yet again because of the flag this option that she earned was taken away from her.  Now with the current DOR if she wanted to retire as a LTC she will not be eligible until March 2018.  Furthermore, in May 2012, she was assigned as the I Corps G6 Plans & Policy Division Chief, clearly a LTC position, but due to the flag this would be one of three Officer Evaluation Reports (OERs) reflecting her grade as major (promotable) (MAJ (P)).  What board would give her a fair opportunity for promotion to colonel without questioning why she was a MAJ (P) for 3 years?  Lastly, on or about 1 January 2012, she should have had the opportunity to compete on the Command Select List (CSL) board but the flag has caused her to miss three opportunities to be selected for command and the Army cannot give her those opportunities back.  The Military Personnel (MILPER) Message 13-158 states officers will only be eligible for selection to CSL command/key billet positions for three consecutive years following promotable status.

	g.  In summary, her flag should have been removed upon notice that the DOJ had changed her status and she would have been promoted with an effective DOR of 1 May 2012.  She has tried every other option available to accomplish her goal of promotion with the correct date of rank so she can continue meritorious service.

3.  The applicant provides:

* GOMOR, allied documents, rebuttal, and GOMOR filing decision memorandum
* Letter from DOD Inspector General (IG)
* Correspondence to and from DOJ
* DA Form 268 (Report to Suspend Favorable Personnel Actions) (initiation and closure)
* DOD Instruction 5505.07 (Titling and Indexing of Criminal Investigations within the DOD)
* Multiple OERs and certificates of training, achievement, and completion
* Request for exception to the provisions of AR 600-8-2 with chain of command endorsements, and denial by the U.S. Army Human Resources Command (HRC), 



CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army and Army National Guard, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 17 December 1994. 

2.  She served in a variety of stateside or overseas assignments and she was advanced to MAJ on 1 November 2005.  She deployed to Afghanistan in July 2011 with I Corps out of Fort Lewis, WA and served as contracting officer representative (COR), overseeing contracts between (CSC) and (CECOM). 

3.  On 27 November 2011, as the COR she became the subject of an investigation involving illegal activities with a CECOM contract to CSC, valued at $5.5 M to build a housing compound.  The CSC investigation was transferred to the DOJ.

4.  In December 2011, HRC initiated a FLAG against the applicant citing the ongoing investigation.

5.  On 21 May 2013, the DOD IG submitted a memorandum in relation to the applicant's issue.  The memorandum states: 

* the applicant is a titled Subject of a criminal investigation; her name was recorded by this office and other law enforcement agencies 
* the investigation was coordinated with DOJ, U.S. Attorney's Office for the District of Maryland
* the investigation is still ongoing and the applicant is still considered a subject of the investigation 
* the decision to remove her as a subject rests with the DOJ 

6.  On 24 July 2013, she submitted a request for an exception to the provisions of AR 600-8-2 so that any flag may be lifted and she may be promoted to LTC.  She indicated she had been flagged since 27 November 2011 and she had been promotable since 1 May 2012.  Her request was reviewed for legal sufficiency and forwarded by the CG, I Corps, to HRC. 

7.  On 30 September 2013, HRC denied the request.  HRC indicated the applicant was selected for promotion by the Fiscal Year 2011 LTC Army, Promotion Selection Board.  She was flagged based on the DOJ investigation.  She was also flagged by HRC Promotion Branch in accordance with AR 600-8-2. There is no exception to policy that will allow the removal of a flag from a promotable officer prior to the adjudication of her or his case.  This prevents the possibility of embarrassment to the Soldier, Army, Command, and HRC n the event that the outcome of the investigation may warrant revocation of the promotion orders and referral to the Promotion Review Board.  It is a fair and equitable process with many safeguards to ensure high standards are maintained and the integrity of the process is absolute and above reproach.

8.  On 29 January 2015, she was reprimanded by the Commanding General (CG), I Corps for committing acts of misconduct.  The GOMOR essentially stated: 

* she circumvented CECOM personnel responsible for the CECOM contract with CSC to obtain funds, valued at $5.5 million
* she failed to obey an order to keep information from her supervisor between government employees; she passed the information to CSC
* she exhibited dereliction in the performance of her duties; failed to report offers (expensive gifts, concert tickets, free hotel room, and employment of her son) from CSC 
* she routinely exchanged emails with CSC contractors indicating a level of familiarity that was inappropriate for a professional relationship expected between a COR and contracted personnel 

9.  She acknowledged receipt of the GOMOR and submitted a rebuttal.  After carefully reviewing the GOMOR, on 8 March 2015, the supporting documents, and the rebuttal, the CG ordered the GOMOR to be filed in her local file. 

10.  On 10 March 2015, the applicant's flag was removed by reason of "case closed unfavorably."  Following this removal, the applicant's senior commander dispatched a memorandum to HRC requesting the removal of the promotion flag. 

11.  On 20 March 2015, HRC published Orders Number 079-003 promoting the applicant to LTC with an effective date and DOR as 9 March 2015.

12.  An advisory opinion was received on 29 May 2015 from HRC in the processing of this case.  An advisory official stated: 

	a.  Based on a review of the information provided, AR 600-8-29, paragraphs 1-19,1-21 d. (4) and AR 600-8-2, HRC finds the applicant s' request for an adjustment to her LTC date of rank does not have merit.  The applicant was flagged for Adverse Action, code (AA) on 27 November 2011 as a subject/person named in a DOJ investigation.  She remained as a subject until January 2014; however, her AA flag was not lifted by her command until 9 March 2015 (Case Closed Unfavorably) the day after she received a GOMOR.

	b.  Per AR 600-8-29 paragraph 1-21 d. (4), disciplinary action resulting in a Memorandum of Reprimand, regardless of filing disposition; then the ADOR and effective date will be the day after the date the reprimand was actually imposed or directed to be filed in the OMPF or MPRJ, whichever is later.

	c.  While the applicant's frustration is understandable, her promotion orders were completed in accordance with applicable law, regulation and policy of the U.S. Army, there was/is not an exception that would allow removal of a flag from a promotable officer prior to the final adjudication of his or her case.  Therefore, any adjustment of her LTC date of rank can only occur as a directive by the ABCMR in lieu of paragraph 1-21 d. (4) of AR 600-8-29.

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

14.  AR 600-8-29 prescribes the officer promotion function of the military personnel system.

	a.  Paragraph 1-20 (Delay of promotion) states : 

		(1)  The promotion of any officer who is in a non-promotable status is automatically delayed.  DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay. The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible (AR 600–8–2).  If a DA Form 268 is in effect at the time an officer’s name is announced on a promotion list, the officer’s commander will immediately notify him or her of the reason for the delay.

		(2)  Delays under this provision will be resolved within 6 months of the date the officer would have been promoted.  An officer’s promotion will not be delayed more than 6 months unless the SA or the Secretary’s designee grants a further delay.  The CG, HRC will monitor cases involving delay and designate an authority to grant a further period of delay in cases involving non-promotable overweight officers and in extraordinary cases. Additionally, a “further period of delay” is deemed to have been granted in any case that has been referred to a promotion review board; the delay in such cases extends until the SA takes final action.  In no case may an officer’s promotion be delayed more than 90 days after final action in any court martial or criminal case against the officer in Federal or State court, or more than 18 months after the date on which the officer would otherwise have been appointed, whichever is later.

		(3)  If within 6 months after the effective date of promotion, new information results in a determination by Headquarters, Department of the Army (HQDA) that an officer was, on the effective date of the promotion, in a non-promotable status, that promotion will be deemed to have been automatically delayed.  In such a case, the officer’s promotion is void and the order announcing the promotion will be revoked.  The officer must be immediately notified of this fact.  Also, immediate steps will be taken to resolve the case or seek further delay.  However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the delay had not been imposed.

	b.  Paragraph 1–21 (DOR and effective date of promotion after a delay). 

		(1)  When a delay in promotion is ended, the promotion approval authority will determine if the officer was in fact unqualified (as opposed to ineligible) for promotion during all or part of the delay and will adjust them DOR and effective date of promotion accordingly.  For officers on HQDA-centralized promotion lists, the promotion approval authority is the CG, HRC or their designee.

		(2)  Information required to support the decision includes the following, as appropriate, the reason for the delay, date the case was closed, type of punishment received, date all punishment will be completed (including all periods of suspension and date all fines were paid), date that the Memorandum of Reprimand was directed to be filed in the officer’s OMPF (not the date the memorandum is actually imposed or filed), and/or other information as provided in AR 600–8–2.

		(3)  When an officer’s promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that the officer was qualified for promotion during the entire period of delay, the officer will be promoted with the ADOR, effective date (for pay and allowances), and position on the ADL he or she would have received had there been no delay, However, the ADOR and effective date will be adjusted as follows if promotion was delayed because of disciplinary action resulting in a Memorandum of Reprimand, regardless of filing disposition; then the ADOR and effective date will be the day after the date the reprimand was actually imposed or directed to be filed in the OMPF or MPRJ, whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a subject named in a DOJ investigation on 27 November 2011.  She was accordingly flagged for Adverse Action, code (AA) on that date.  Meanwhile, she was selected for promotion o LTC by the Fiscal Year 2011 LTC Army, Promotion Selection Board.  She remained as a subject until January 2014; however, her AA flag was not lifted by her command until 9 March 2015 (Case Closed Unfavorably) the day after she received a GOMOR.

2.  By regulation (AR 600-8-29 paragraph 1-21(d)(4)), in cases where disciplinary action results in a Memorandum of Reprimand, regardless of filing disposition, the promotion DOR and effective will be the day after the date the reprimand was actually imposed or directed to be filed in the OMPF or MPRJ, whichever is later. The CG made the filing disposition on 9 March 2015.  Immediately thereafter, her flag was removed, as required by regulation, and she was promoted to LTC on that date (9 March 2015).

3.  Although the applicant's frustration is understandable, her promotion orders were completed in accordance with applicable law, regulation(s) and policy.  There is no exception to the policy that allows the removal of a flag from a promotable officer prior to the final adjudication of his/her case.  Regrettably, she is not entitled to 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)                                         AR20150006287



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ABCMR Record of Proceedings (cont)                                         AR20150006287



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