MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            18 July 2000
	DOCKET NUMBER:   AR1999022621

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

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Promotion to lieutenant colonel (LTC) effective 1 December 1996 or earlier in view of his promotion eligibility date of 1 December 1995.  The applicant’s brief in support of his application contains additional requests.  On page 31, he requests that the ABCMR provide the answer to ten questions.  On page 32 (subparagraph d), the applicant also requests that the ABCMR recommend the Secretary of the Army initiate an investigation into the procedures of the Office of Reserve Components Promotions or that the ABCMR direct such an investigation if it is within the ABCMR’s purview.  Finally on page 33 (subparagraph c) the applicant states:  “If the ABCMR is not compelled by this brief, I request a face-to-face meeting to discuss and resolve the action.”

APPLICANT STATES:  As summarized, that he reported for duty at Fort Lewis, Washington, for assignment in a LTC position on 1 December 1996 when no Report of Suspension of Favorable Personnel Action (also properly known as a “flag”) was in effect.  He contends that on 5 December 1996 Army Reserve Personnel Command (ARPERSCOM) Promotions Office attempted to re-flag him for a Promotion Review Board (PRB) by voiding a 24 June 1996 action to lift a flag.  [The applicant has incorrectly identified the Office of Promotions, Reserve Components, as an ARPERSCOM agency, when in fact it is a U.S. Total Army Personnel Command (PERSCOM) agency].  He goes on to state that an Inspector General action to the Commander PERSCOM was not sufficient for the Commander to reverse the PRB action removing him from the promotion list.  The applicant contends that their action was not valid and the PRB was not valid. He further states that he was promoted by Title 10 law on 1 December 1996.  

The applicant requests that the Army Board for Correction of Military Records (ABCMR) overturn the actions of the Office of Promotions, Reserve Components, (which is hereafter referred to as the Office of Reserve Components Promotions) and promote him to the rank of LTC effective 1 December 1996, but he states that he should be promoted even though he was not in a LTC position effective 1 December 1995 as compensation for the injustice he has experienced.  He contends that the Office of Reserve Components Promotions directly violated Title 10 law and multiple procedures and policies in Army Regulation 135-155, and that the Office of Reserve Components Promotions acted unfairly, unjustly, and dishonestly in a PRB action.  He firmly believes that he was intentionally discriminated against and denied due process by the actions of the PERSCOM in upholding the PRB action to remove his name from a promotion list.

In support of his application, he submits a comprehensive 37-page typed statement, dated 1 February 1999, with 29 enclosures listed and described on pages 34-37 of this summary. He also submits two addenda to his application , dated 15 August 1999 and 14 November 1999, and an Officer Evaluation Report (OER) for the period 25 June 1998 through 24 June 1999.  All documents submitted by the applicant were provided to the Board.
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was serving on active duty in the Active Guard Reserve program in the rank of major at the time in question.  The applicant will complete 20 years of active Federal service on 18 July 2000 and is scheduled to retire in August 2000 with immediate entitlement to retirement benefits.

On 4 November 1994, a Reserve Components Promotion Selection Board recommended the applicant for promotion to LTC, USAR, with a promotion eligibility date of 1 December 1995.  He was not promoted at this time because he was serving in a duty position requiring the grade of major, not LTC.

On 10 July 1995, the applicant received a Memorandum of Reprimand from a General Officer.  This reprimand was tendered for “deliberate and repeated unwelcome verbal comments, gestures, and physical contact of a sexual nature with female cadets and student employees at the George Mason University ROTC Extension Center.”  After the applicant responded to the General Officer regarding the incidents cited in the memorandum of reprimand, the General Officer directed that the reprimand be permanently filed in the applicant’s Official Military Personnel File (OMPF).  The applicant was also tendered a relief for cause Officer Efficiency Report (OER) which was referred to the applicant for comment and to which he responded.  This OER was also placed in his OMPF.

On 6 September 1995 the Chief of the Officer Management Division of the Full Time Support Management Center of ARPERSCOM referred the applicant’s records to the U.S. Total Army Personnel Command (PERSCOM) Office of Reserve Components Promotions, for consideration by a PRB to determine if he should be removed from the LTC promotion list.  This memorandum also stated:  “A Suspension of Favorable Personnel Actions (flag) was initiated by the Full Time Support Management Center on 1 September 1995 pending outcome of the board (encl 3).”

On 19 January 1996 the Chief of the Office of Reserve Components Promotions signed a flag which was effective 16 January 1996 based on the consideration of the applicant’s promotion eligibility by a PRB.  
 
As a result of the filing of the adverse actions in the applicant’s OMPF, the applicant’s records were also referred to a Department of the Army Active Duty Board (DAABD) in January 1996 to determine if he should be involuntarily separated or retained.  

By letter, dated 9 February 1996, the Office of Reserve Components Promotions notified the applicant in writing of his pending PRB to reconsider his promotion eligibility.  He was also advised:  “Until a final determination is made, you [the applicant] are not in a promotable status.”
On 14 February 1996 the DAADB considered the applicant’s case and voted unanimously to separate him with an honorable discharge.  The Deputy Assistant Secretary of the Army (Army Review Boards) directed any flagging action be waived and lifted for the purpose of facilitating the applicant’s application for retirement under the Voluntary Early Retirement Program (VERP) as an alternative to immediate discharge as recommended by the DAADB.  However, when the Chief of the Army Reserve decided not to process the applicant’s request for early retirement, the Deputy Assistant Secretary of the Army (Army Review Boards) determined that the applicant would be retained in the Army.  

The applicant was directly involved in the matters regarding the option of early retirement under VERP and the ultimate decision to retain him, and he submitted matters in his own behalf by letter, dated 23 May 1996.  The applicant was formally notified of the decision to retain him by Full Time Support Management Center memorandum, dated 9 July 1996.  This memorandum also stated:  “We have closed the flagging action initiated by this center.  A copy of the final DA Form 268, Report to Suspend Favorable Personnel Actions, is enclosed.”  

The flag initiated on 16 January 1996 by the Chief of the Office of Reserve Components Promotions was removed effective 20 June 1996 with the annotation “Case closed favorably”.  This occurred shortly after the decision by the Deputy Assistant Secretary of the Army (Army Review Boards) to retain the applicant, but before the PRB considered the applicant’s promotion eligibility.

Subsequently, ARPERSCOM published orders, dated 11 September 1996, assigning the applicant assigned to a LTC position at Fort Lewis, Washington.  A Full Time Support Management Center memorandum, dated 13 November 1996 and addressed to the Office of Reserve Components Promotions, reflects that the applicant was authorized to be appointed to the next higher grade (LTC) since there was no flagging action or knowledge of such an action reflected in the personnel files maintained by the Full Time Support Management Center.  The applicant reported to duty at Fort Lewis on 1 December 1996.

On 5 December 1996 the Chief of the Office of Reserve Components Promotions notified the applicant that the flag initiated for the purpose of the PRB had been erroneously lifted and the 16 January 1996 suspension of favorable personnel action was still considered to be in effect.  The erroneous flag removal, with an effective date of 20 June 1996, was annotated with the handwritten entry “VOID”.

On 9 December 1996, the Office of Reserve Components Promotions requested a legal opinion from the Office of the Judge Advocate General of the Army (OTJAG) addressing whether or not the PRB action should be continued in view of the DAADB decision to retain the applicant.  On 28 January 1987, the Chief of the Military Personnel Law Branch of OTJAG responded as cited in part:

	“Provided that [the applicant] was either under or should have been under a suspension of favorable personnel action (a “flag”) when he was assigned to a higher graded position on 1 December 1996, there is no legal objection to referring [the applicant’s] case to a PRB.  A determination that an officer should be retained on active duty is not dispositive of whether an officer should be removed from a promotion list.”

	“An officer is promoted by operation of law on his or her promotion eligibility date (PED) unless he or she is flagged or should have been flagged on that PED.”

	“UP [under the provisions of] AR 135-155, paragraph 3-13a(6), an officer may be referred to a PRB based on an OMPF-filed reprimand or referred evaluation report, among other reasons.”

	“[The applicant] was flagged IAW [in accordance with] AR 135-155, paragraph 3-13b(1)(b), and AR 600-8-2, paragraph 1-12f, effective 16 January 1996 based upon his pending PRB; he should also have been flagged when he was referred to a DAADB, UP AR 600-8-24, paragraph 21f.  AR 135-155, paragraph 3-13b(1)(b), requires preparation of a DA Form 268 upon the favorable closing of a DA Form 268 that was or should have been imposed.  If the 24 June 1996 DA Form 268 was prepared to record the favorable closing of the DA Form 268 that should have been prepared for [the applicant’s] consideration by the DAADB, it should have no effect on the 19 January 1996 DA Form 268 prepared based on the pending PRB action, and the erroneous administrative termination of that DA Form 268 is without legal effect.  If so, [the applicant] remained flagged (despite the erroneous administrative lifting of the flag); he was not promotable and therefore may now have his promotion eligibility reviewed by a PRB.”

	“If however, [the applicant’s] flag was removed by HQDA [Headquarters, Department of the Army] based upon a decision of an appropriate official not to refer [the applicant] to a PRB, he was promoted by operation of law on 1 December 1996 when he reported to his new duty station at Fort Lewis and cannot now be referred to a PRB.  Whether [the applicant’s] flag was lifted based upon a decision not to refer him to a PRB or was not properly lifted because the flag that should have been imposed pending the DAADB was the flag addressed by the 24 June 1996 DA Form 268 is a question of fact that must be addressed by PERSCOM.”

On 28 February 1997, the applicant requested that the Department of the Army Suitability Evaluation Board (DASEB) move the General Officer memorandum of reprimand from his OMPF to his restricted microfiche.  The applicant’s primary argument was that the reprimand had served its intended purpose.  On 14 April 1997, the DASEB denied the applicant’s request.
On 9 April 1997, a PRB for reconsidered the applicant’s promotion status.  The PRB recommended that his name be removed from the LTC promotion list.  The Secretary of the Army approved the PRB’s recommendation on 19 September 1997 and the removal action was approved by the President of the United States on 4 December 1997.  

The applicant was notified by the Office of Reserve Components Promotions of his removal from the LTC promotion list by a memorandum, dated 19 December 1997.  He was also advised that the flag for PRB purposes was removed effective 12 December 1997 and that he would be considered for promotion to LTC by the 1998 Reserve Component Selection Board (RCSB).  The applicant was considered for promotion by the 1998 RCSB, but was not selected.

The applicant’s records contain a letter, dated 29 January 1998, from the U.S. Total Army Personnel Command Inspector General (PERSCOM IG) responding to the applicant’s Inspector General Action Request (IGAR), dated 29 July 1997. The IGAR identified issues concerning improper flagging procedures and promotion eligibility.  The PERSCOM IG letter states that the PERSCOM Judge Advocate reviewed the applicant’s investigative file and provided a legal review which is cited as follows: 

	“a.  Army Regulation 135-155, paragraph 3-13b (1) provides that a DA Form 268 will be prepared by HQDA upon favorable closing of a previous DA Form that was or should have been imposed while an officer is on a promotion list.  If the favorable action by the Department of the Army Active Duty Board (DAADB) resulted in the erroneous termination of the Promotion Review Board (PRB) flagging action, a separate DA From 268 “should have been imposed” continuing the PRB flagging action.  If the intent of the DA Form 268 dated June 24, 1996 was to terminate the PRB action, you should have been promoted effective December 1, 1996.  If the intent was to continue the PRB action, you remained flagged notwithstanding the erroneous termination of the flag on June 24, 1996. 

	b.  Based on the memorandum from the Chief, Management Support Division, to the PERSCOM Inspector General dated December 22, 1997, it appears that termination of the PRB action has never been approved.  The intent of PERSCOM has been to hold a PRB to adjudicate your promotion status.  Accordingly, the erroneous termination of the DA Form 268 was without effect and you remain flagged pending resolution of the PRB.”

The 29 January 1998 letter from the PERSCOM IG to the applicant also stated that the allegation involving improper actions by an official [name omitted] of the Reserve Component Secretariat for Department of the Army Selection Boards (which is a part of the Office of Reserve Components Promotions) to notify the applicant of his PRB was “neither substantiated or unsubstantiated.  On 9 February 1996 you were notified of your PRB (encl 1) and provided a written response dated March 7, 1997 (encl 2).  [The official (name omitted) of the Reserve Component Secretariat for Department of the Army Selection Boards] stated that he had various telephone conversations with you to inform you of the status of the PRB.  The RC [Reserve Components) DA (Department of the Army) Secretariat deemed this as proper notification since you submitted a written reply.”

In the processing of this case, a staff advisory opinion (COPY ATTACHED), dated 11 March 1999, was obtained from the Deputy Chief of the Office of Promotions, Reserve Components.  This opinion states that, in 1994, the applicant was selected for promotion to LTC with a promotion eligibility date of 1 December 1995.  The applicant was assigned to the Active Guard Reserve program but not assigned to a higher graded position and could not be promoted. In July 1995, he received a Memorandum of Reprimand and the reprimand was approved for filing in his OMPF on 17 August 1995.  Based on the reprimand, the applicant was advised on 9 February 1996 that his file was to be submitted to a PRB to determine if his name should remain on the promotion list.  The PRB determined that the applicant’s name should be removed from the promotion list and adjourned on 9 April 1997.  His removal from the promotion list was approved by the Secretary of the Army on 19 September 1997 and the President on 4 December 1997.  The applicant was notified of this action by memorandum, dated 19 December 1997.  In view of the facts presented, the Deputy Chief of the Office of Reserve Components Promotions concluded that the applicant’s request for promotion to LTC should be denied.

The applicant submitted a five-page rebuttal, dated 5 April 1999, to the advisory opinion.  He “strongly” disagrees with the opinion of the Promotions Office and contends that they continue to deny and ignore the real issues as presented in his ABCMR application.  In summary, he states that he assumed an assigned LTC position on 1 December 1996 and that he has been in this LTC position continuously since that date.  He cites their irregular flag and notification procedures and claims their response is a recurrent denial of due process against him based on misinformation and that the discrimination against him is significant, pervasive and intentional.  He states that he is appalled and provoked by the omissions and denial in their response which attempts to make the action look like a routine administrative procedure.  The applicant submits six enclosures as listed on page 5 of his rebuttal and contends that these documents and his rebuttal settle the chronology and actions fairly well when integrated with his original ABCMR application.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy and procedures for the selection and promotion of commissioned officers of the National Guard of the United States (ARNG) and the U.S. Army Reserve (USAR).  Paragraph 3-13 of this regulation provides for the removal of an officer from a selection board list and specifies that commanders and the Commanding General of the U.S. Total Army Personnel Command (TAPC-MSL which is the Office of Reserve Components Promotions in St. Louis, Missouri) will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally or professionally disqualified after being selected for promotion.  Officers may be recommended for removal for referred officer evaluation reports, nonjudicial punishment or court-martial if filed in the Official Military Personnel File (OMPF), a letter of reprimand placed in the OMPF, adverse material filed in the OMPF, and adverse material filed in the OMPF by the Department of Army Suitability Evaluation Board.

Paragraph 3-13b of Army Regulation 135-155 prescribes the procedures for processing recommendations for removal of an officer from a selection board list. The regulation requires that the “CG PERSCOM (TAPC-MSL) will initiate and control Suspension of Favorable Personnel Action per AR 600-8-2.  A DA Form 268 will be prepared by HQDA upon favorable closing of a previous DA Form 268 (Report to Suspend Favorable Personnel Action) that was or should have been imposed while an officer is on a promotion list or when an officer is recommended for removal.”

Paragraph 3-13b(1) requires that a promotion review board (PRB) will convene to consider the promotion status of each officer recommended for removal and that the PRB will consider the officer’s record as it exists at the time.  Requests for removal not supported by the promotion review board will be terminated and the CG PERSCOM (TAPC-MSL) will remove Suspension of Favorable Personnel Action and inform the officer of his or her promotion status.  

Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating task, and steps governing suspension of favorable personnel actions and is applicable to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 1-8 of this regulation states that the Department of the Army will operate a system to guard against the accidental execution of specified favorable personnel actions for soldiers not in good standing.

Paragraph 1-12 of Army Regulation 600-8-2 specifies the circumstances requiring a non-transferable flag.  Among those reasons for imposition of a non-transferable flag is “Removal from a promotion, command, or school selection list-field initiated. Remove the flag on the day the Headquarters, Department of the Army (HQDA) decision is received.”

Paragraph 1-14 of Army Regulation 600-8-2 specifies the actions which are prohibited by a flag among which is listed:  “d.  Promotion or reevaluation for promotion.”

Paragraph 2-1 of Army Regulation 600-8-2 specifies the rules for initiating a flag and states that a “separate flag will be initiated for each investigation, incident, or action.”

Army Regulation 600-8-24 prescribes the policies and procedures governing transfer and discharge of Army officer personnel, including commissioned and warrant officers of the Active Army, the Army National Guard of the United States and the U.S. Army Reserves when serving on active duty for a period of 30 days or more.  Paragraph 2-31 of this regulation specifies the rules for processing involuntary relief from active duty (REFRAD) by the Department of the Army Active Duty Board (DAADB).  Paragraph 2-31f specifically requires that a “DA Form 268 (Report to Suspend Favorable Personnel Actions) will be initiated (AR 600-8-2) when an officer is identified for DAADB actions.

Army Regulation 15-185 (Army Board for Correction of Military Records) governs the operations of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-2 of this regulation specifically states that the ABCMR will decide cases on the evidence of record and that it is not an investigative body.

Paragraph 2-11 of Army Regulation 15-185 states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant received a memorandum of reprimand from a General Officer for “deliberate and repeated unwelcome verbal comments, gestures and physical contact of a sexual nature with female cadets and student employees at the George Mason University ROTC Extension Center.”  Consistent with his rights, the applicant was provided the opportunity to submit comments prior to filing of this memorandum of reprimand in his OMPF.  After due consideration, the General Officer determined that the memorandum of reprimand should be filed in the applicant’s OMPF.

2.  The applicant received a relief for cause OER for the same events cited in the memorandum of reprimand.  The OER was properly referred to the applicant for comments and he submitted comments consistent with his rights.  After due consideration, the OER was filed in the applicant’s OMPF.

3.  As a result of the filing of this adverse information in the applicant’s OMPF, the Full Time Support Management Center at ARPERSCOM referred the applicant’s records to the PERSCOM Office of Reserve Components Promotions for consideration of his promotion eligibility by a PRB.  The Full Time Support Management Center also advised the applicant that it had initiated a flag on 1 September 1995.

4.  Evidence of record shows that the Office of Reserve Component Promotions initiated a flag effective 16 January 1996 based on pending review of the applicant’s promotion eligibility by a PRB.  The Office of Reserve Components Promotion also notified the applicant in writing that he was not in a promotable status until a final determination was made by the PRB.  There is no evidence that the Office of Reserve Components Promotions notified the applicant of any change to this non-promotable status until after the completion of the PRB action in December 1997.

5.  On 14 February 1996 the DAADB considered the applicant’s case and voted unanimously to separate him with an honorable discharge.  The Deputy Assistant Secretary of the Army (Army Review Boards) directed any flagging action be waived and lifted for the purpose of facilitating the applicant’s application for retirement under the Voluntary Early Retirement Program (VERP).  However, when the Chief of the Army Reserve decided not to process the applicant’s request for early retirement, the Deputy Assistant Secretary of the Army (Army Review Boards) determined that the applicant would be retained in the Army, but made no comment regarding the PRB action or permanent waiver or lifting of the flag in effect based on the PRB action . The applicant was formally notified of the results of the DAADB action to retain him by Full Time Support Management Center memorandum, dated 9 July 1996.

6.  Evidence of record shows that the flag initiated by the Office of Reserve Components Promotions based on the PRB was removed effective 20 June 1996 after the decision of the DAADB, but prior to consideration of the applicant’s case by the PRB.  It is also noted that the flag was annotated “Case closed favorably”, but there is no indication that the Office of Reserve Components Promotions had withdrawn, halted or otherwise terminated the PRB action.  Up to this point, the only action which had been closed was the DAADB case.

7.  Evidence of record shows that, on 13 November 1996, the Full Time Support Management Center advised the Office of Reserve Components Promotions that there were no known flagging actions against the applicant and that his promotion to the next higher grade of LTC in a position at Fort Lewis, Washington, was authorized.

8.  Evidence of record shows that on 5 December 1996, the Office of Reserve Components Promotions notified the applicant that the flag issued on 16 January 1996 based on the PRB action had been erroneously lifted effective 20 June 1996.  The Office of Reserve Components Promotion also advised that the flag effective 16 January 1996 was still in effect.

9.  On 9 December 1996, an official of the Office of Reserve Components Promotions requested a legal opinion regarding the affect of the decision to retain the applicant on proceeding with the PRB action.  The Chief of the Military Personnel Law Branch opined that there is no legal objection to proceeding with a PRB even though the DAADB action resulted in a decision to retain the applicant.  

10.  Evidence of record shows the PRB considered the applicant’s case on 9 April 1997 and determined that his name should be removed from the recommended list for LTC which was subsequently approved by the Secretary of the Army and the President of the United States.  

11.  The Board noted the applicant’s contention that the actions of the Office of Reserve Components Promotions should be overturned and that he should be promoted to LTC effective 1 December 1996.  He also contended that the Office of Reserve Components Promotions violated Title 10 law and multiple procedures and policies in Army Regulation 135-155 and acted unfairly, unjustly, and dishonestly in a PRB action.  The applicant also contended that he was intentionally discriminated against and denied due process by the actions of the “Personnel Support Command (PERSCOM, which includes the Promotions Office) in upholding the PRB action to remove [his] name from a promotable list.”

12.  The Board reviewed all documents submitted by the applicant, including the extensive brief, dated 1 February 1999, which was submitted as an addendum to his application.  Based on the applicant’s assessment stated at subparagraph c on page 33 of his brief, the Board concludes that the major contention set forth by the applicant is that he was not flagged at the time he reported for duty in a LTC position at Fort Lewis; therefore, he should be promoted to LTC with a date of rank effective on the date (1 December 1996) he reported for duty at Fort Lewis and was assigned to a duty position requiring the grade of LTC.  

13.  The Board noted the issues surrounding the flag initiated by the Office of Reserve Components Promotions and the erroneous lifting of the flag.  It is clear, based on regulation in effect at the time in question, that the applicant was flagged or should have been flagged while waiting consideration by the PRB.  The applicant was notified in writing on 9 February 1996 that a flag was initiated on 16 January 1996 by the Office of Reserve Components Promotions based on reconsideration of the applicant’s promotion eligibility by a PRB and that, until a final determination was made, the applicant was not in a promotable status. 

14.  The Board noted that the 16 January 1996 flag initiated by the Office of Reserve Components Promotions was lifted effective 20 June 1996; however, in accordance with regulation in effect at the time, the flag should have remained in effect while the PRB action was in progress.  The Chief of the Military Law Branch, OTJAG, and the PERSCOM Staff Judge Advocate both have opined in this case that, provided the Office of Reserve Components Promotions intended to proceed with the PRB action, then the applicant remained flagged notwithstanding termination of the flag on 20 June 1996.  The Office of Reserve Components Promotions has steadfastly maintained its intent to proceed with the PRB action and a PRB did in fact consider the applicant’s case and remove him from the LTC recommended list.  There is no evidence the Office of Reserve Components Promotions through action or inaction at any point terminated or intended to terminate the PRB action.  The fact that the Office of Reserve Components Promotions sought a legal opinion as to whether review by the PRB should continue, in view of the decision by the Deputy Assistant Secretary of the Army (Army Review Boards) to retain the applicant, shows the officials of the Office of Reserve Components Promotions intended to proceed, but only if legally proper. 

15.  Based on the information contained in paragraphs 12, 13, and 14, above, the Board determined that the applicant was not in a promotable status from the date the flag was imposed until the PRB completed its action.

16.  The applicant also contends that officials in the Office of Reserve Component Promotions perpetrated “egregious wrongs” in his case.  The major contentions raised by the applicant in this regard are that he was not notified of the PRB in a timely manner, that the PRB process was not timely, and that contrary to statements by the Office of Reserve Components his OMPF was available for use by a PRB.  The Board noted that the applicant argued each of these points in detail; however, the applicant has not provided evidence to support his conclusions, particularly the allegations that an official in the Office of Reserve Components Promotions “made a deliberate attempt to mislead the DA JAG” [Department of the Army Judge Advocate]; that the attempt to reflag the applicant with the voided flag was an “egregious error in procedure”; that the “Chief of the Promotion & Notification Branch …laxness and mismanagement in handling flags, notifications and return receipts, details in correspondence, and timeliness… and his probable involvement with the misinformation provided in the [Commander PERSCOM-name omitted] memo” need “further scrutiny and disciplinary action.”

17.  Regarding the allegations of “egregious wrongs” stated by the applicant, the Board notes that the Office of Reserve Components Promotions referral of the applicant’s case to a PRB took approximately 20 months which the Board views as excessively long.  It is also noted that the Special Assistant to the Assistant Secretary of the Army (Manpower and Reserve Affairs) and the Commanding General of PERSCOM became personally involved in moving the case to conclusion.  However, the Board does not find, as the applicant contends, that the slow process of getting his case to the PRB demonstrates intentional violations of law or regulation; unfair, unjust or dishonest acts; acts of discrimination; or denial of due process by officials of the Office of Reserve Components Promotions.  There also is no evidence the delay in processing the PRB action affected the decision of the PRB or the outcome in this case.

18.  The key facts in this case are the applicant repeatedly committed acts of unacceptable conduct which his chain of command found sufficiently serious to warrant filing of a General Officer memorandum of reprimand and a relief for cause OER in the applicant’s OMPF.  This adverse information resulted in actions provided for by Army regulation, specifically consideration by the DAADB and a PRB.  The Deputy Assistant Secretary of the Army (Army Review Boards) in reviewing the decision of the DAADB to separate the applicant with an honorable discharge acted with compassion by overruling the DAADB and by recommending instead that the applicant be allowed to retire under VERP.  When the VERP application was denied by the USAR, the Deputy Assistant Secretary of the Army (Army Review Boards) directed retention of the applicant.  Meanwhile, officials of the Office of Reserve Components Promotions were carrying out their responsibilities in referring the applicant’s case to a PRB.  Although slow in their actions, these officials properly referred the applicant’s case to a PRB and the PRB determined the adverse actions filed in the applicant’s OMPF warranted removal from the LTC promotion list.  The Secretary of the Army agreed with the recommendation of the PRB and the President approved removal of the applicant from the promotion list.  The DASEB considered the applicant’s request to transfer the General Officer memorandum of reprimand to the restricted microfiche, but did not find the applicant’s argument compelling and denied his request.  The applicant was again considered for promotion to LTC by the 1998 RCSB, but was not selected for promotion.  In view of these facts, the Board finds that the applicant has been treated fairly and equitably and consistent with his rights.

19.  The Board acknowledges the applicant’s request to provide the answers to ten questions listed on page 31 of his brief.  Some of those questions relate to procedures and to matters of “intent” already addressed in correspondence by the Office of Reserve Components Promotions, OTJAG, and the PERSCOM IG.  Other questions relate to procedures internal to the Office of Reserve Components Promotions, requests for records internal to ARPERSCOM, scheduling of boards, processing time for boards and management of flags.  The Board is not an investigative agency; therefore, it is not obligated to research these questions and provide answers to the applicant.  Further, each case before the Board is considered individually on its own merit based on the evidence of record and evidence submitted by the applicant.

20.  The Board noted the applicant’s request that the “ABCMR forward a recommendation to the SA [Secretary of the Army] to investigate the actions and procedures of the Promotions Office or the ABCMR may direct if that is within your purview.”  There are agencies whose responsibilities encompass conduct of investigations, such as the Department of the Army Inspector General.  The Board recommends that the applicant forward his evidence of wrongdoing or impropriety to one of those agencies for review and investigation.

21.  The Board noted the applicant’s statement:  “If the ABCMR is not compelled by this [the applicant’s] brief, I request a face-to-face meeting to discuss and resolve the action.”  An applicant does not have a right to a formal hearing before the Board.  Only the Board and the Director of the ABCMR may grant a formal hearing before the Board when justice requires.  The Board has determined that an appearance by the applicant before the Board in this specific case is not required in the interest of justice.

22.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy either of these requirements.

23.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___GDP_  ___MT ___  __EMB_  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999022621	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/07/18	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	131.0000.0000	
2.	131.0200.0000	
3.		
4.		
5.		
6.