PROCEEDINGS

	IN THE CASE OF:    

	BOARD DATE:            23 June 1999                  
	DOCKET NUMBER:   AR1998005118

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests his promotion to colonel be adjusted retroactively to 8 March 1995, with the same date of rank.  In addition, he requests back pay from 10 March 1995 to 2 June 1996.

3.  The applicant states that on 10 March 1995, the Office of the Chief Army Reserve (OCAR) Colonel slating board slated him against four colonel positions, and since three of the positions were vacant, his assignment would have been assured and would have been effective immediately, i.e. 10 March 1995.  On 15 March 1995 he was notified of a flagging action pending results of an investigation.  He was informed that his assignment to a colonel’s position and subsequent promotion to the rank of colonel was on hold pending the completion of the investigation.  He further states he was found innocent and his peer group was promoted ahead of him.  In a rebuttal letter to the Board, he states Army Regulation 135-155 is not applicable to the facts of his situation.  That Army Regulation 600-8-29 specifically states that when an officer is exonerated of any wrongdoing, the officer will be promoted with the adjusted date of rank and position on the active duty list (ADL) he would have received had there been no delay  (Steph  what about effective date/pay?).  He submits a copy of his promotion order and ADD ADD ADD ADD ADD

4.  The applicant’s military records show that he was appointed in the Reserve, Medical Services Corps, as a first lieutenant effective 7 September 1973.  He attained the rank of lieutenant colonel effective 13 September 1989.  His promotion eligibility date for colonel was 12 September 1994.

5.  He was a member of the Active Guard/Reserve program during the period of promotion eligibility to colonel.  He was not accessed into the active Army or placed on the ADL.

6.  He was considered and selected for promotion to colonel by the 1994 Reserve Components Selection Board, Army Medical Department with a promotion eligibility date of 12 September 1994.  The Board convened on 7 June 1994.  The results were released on 29 September 1994 and confirmed by the Senate on 6 October 1994.

7.  He was considered by the Reserve Component AGR Order of Merit Board which convened on 14 February 1995.  He was placed within the top 25 percent for an assignment to an AGR colonel position.

8.  A Report of Suspension Favorable Personnel Actions (Flagging Action) was initiated on the applicant effective 15 March 1995.
9.  On 1 May 1995, he declined nonjudicial punishment under Article 15, UCMJ for wrongfully and dishonorably attempting to influence the outcome of the 1994 Reserve Component National Security Course, and demand trial by court-martial.
10. On 8 May 1995 Court-martial charges were preferred against the applicant for violation of Article 133, UCMJ.  The applicant was arraigned on 27 September 1995.  A General Court-Martial convened on 16 October 1995.  It ended in a mistrial on 17 October 1995.  On 7 November 1995, the charges were reviewed by the convening authority and referred for a new trial.  On 8 January 1996, a General Court-Martial convened.  The applicant pleaded not guilty.  On 
9 January 1996, he was found not guilty of the charge and specification.

14. On 17 January 1996, a final Report of Suspension Favorable Personnel Actions was closed favorably and the flagging action was removed effective 
9 January 1996.

15. On 8 March 1996, the applicant was notified of his relative standing resulting from the 1996 Colonel/Lieutenant Colonel (Promotable) USAR AGR Order of Merit Board.  He was advised that he was placed in the third quartile.

16. Orders published on 29 April 1996 continued the applicant on active duty in the AGR.

17. Promotion orders dated 1 May 1996, promoted the applicant to colonel effective 3 June 1996, with a DOR of 12 September 1994.  He was promoted based on transfer from St. Louis, MO, and assignment to a colonel position in Washington, DC. ****Steph-  Is this trans info correct?*****

XX.  ADL…… (Steph-  put ADL definition here)

XX.  Policy concerning promotion to colonel within the Reserve AGR program provides for order of merit listing (OML) of those eligible for promotion.  Once listed on an OML, individuals may be selected to fill higher graded vacancies in the program and promoted.  This process may take from 3 to 6 months for selections and local transfers and 6 to 9 months for transfers to other locations.

18. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that AGR officers who have been selected for promotion and are not assigned to a position calling for a higher grade may remain in the position list and serve on active duty in the AGR program until they are reassigned to an AGR position calling for the higher grade.

19. Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on the ADL.  This regulation specifies that an officer’s promotion is automatically delayed when the officer is under investigation that may result in disciplinary action of any kind being taken against the officer.  The regulation further provides that when an officer’s promotion suspension is ended favorably and the officer is exonerated or a determination is made that the officer is qualified for promotion during the entire period of delay, the officer will be promoted with the adjusted date of rank, effective date (pay and allowances) and position on the ADL he or she would have received had their been no delay.

21. The Chief, Promotion and Notifications Branch, Office of Promotion, PERSCOM, expressed the opinion (COPY ATTACHED) that the applicant was not assigned to a higher graded position until 3 June 1996, and under the provisions of Army Regulation 135-155, paragraph 4-14a(2), that is the earliest effective date he can be given for promotion, which is the date of his promotion letter.  He stated that in view of the facts presented; however unfortunate as the surrounding circumstances may have been, it was recommended that the applicant’s request be denied.

22.  An official of the Office of the Chief, Army Reserve (OCAR), concurred with PERSCOM that the applicant’s effective date of promotion to colonel should remain 3 June 1996.

23. The applicant submits a comprehensive rebuttal (COPY ATTACHED) in response to the opinion provided by the PERSCOM and OCAR.  A copy is attached and need not be reiterated here.

CONCLUSIONS:

1.  Notwithstanding the advisory opinion from PERSCOM and OCAR officials, the applicant was selected for promotion to colonel, and continued to be otherwise qualified for promotion during the entire period of delay.  The applicant’s records were flagged and he lost the opportunity at the time for assignment in a colonel position.  The applicant was found not guilty, and later assigned to a colonel position and promoted.

2.  While the Board agrees with the applicant’s contention that Army Regulation 600-8-29 provides relief in circumstances such as his, the regulation pertains only to officers on the ADL.  Army Regulation 135-155 applies in the applicant’s case and does not provide the same relief for officers on the ADL.

3.  The Board concludes that the applicant has provided evidence that he was slated for four positions and he was eventually transferred and assigned to the higher graded position effective 3 June 1996.

X.  It is noted that had it not been for the flagging action at the time, the applicant would have received consideration for a position requiring a transfer to another location.  It is reasonable to conclude that had it not been for the flagging action, and based on his subsequent selection, the applicant would have been selected from the OML for a colonel vacancy, and subsequently promoted upon filling the vacant position within 12 months of being placed on the OML.  Based on his placement on the OML, as of 10 March 1995, future selection, transfer and assignment to a colonel position, the Board concludes that had he not been under the flagging action he would have been promoted to colonel effective 
1 January 1996.

X.  In cases such as this, where a flagging action is favorably removed from an individuals record, i.e., based on being found not guilty of charges, he/she should not be penalized for lost opportunities occurring during the flagging period.  As in this case, the applicant clearly would have been promoted to colonel at an earlier date than 1996 had his records not been flagged.  Also as in this case, individuals on the ADL would receive relief.  The Board therefore should recommend relief in his case.

X.  The applicant’s DOR of 12 September 1994 is proper based upon his previous DOR for lieutenant colonel of 13 September 1989.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to colonel effective 1 January 1996, with a DOR of 12 September 1994.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

mkp_____  gfg_____  le ______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998005118	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 June 23	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.