MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 September 2000
	DOCKET NUMBER:   AR2000040502

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  Reinstatement to the Fiscal Year (FY) 1997 Major Army Promotion Selection Board, promotion to the rank of Major effective 1 September 1998, and payment of all back pay and allowances from that date.

APPLICANT STATES:  In effect, that he was unjustly removed from the FY97 Major Army Promotion List and denied promotion to that rank without being properly notified prior to the effective date of his promotion that he was being recommended for removal.

COUNSEL CONTENDS:  In effect, that the applicant should have been promoted to the rank of Major on 1 September 1998 because he was not properly notified prior to the effective date of his promotion that he was being recommended for removal from the promotion list.  He further states that the applicable laws and regulations provide that notification of removal from a promotion list is required before the effective date of the promotion; otherwise, the officer is to be promoted as scheduled.  He goes on to state that the applicant was not promoted as scheduled and was not notified until 11 September 1998 (11 days after the effective date of promotion) that action was being taken to recommend his removal from the promotion list.  He continues by stating that the applicable regulations provide for automatic delays in promotions when soldiers are undergoing punishment or serving a sentence; however, none of the provisions served to delay his promotion after the sentence was announced.  Accordingly, he should have been promoted on 1 September 1998 based on the order in which his name appeared on the promotion list.  In addition, he cites a Board for Correction of Naval Records (BCNR) case which the decision of that board supports the relief he is seeking and cites several court-cases in which he contends ruled that the Department is obligated to follow its own regulations.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant initially enlisted on 22 July 1982 for a period of 3 years and served until he was honorably released from active duty in the pay grade of E-4 on 21 July 1985.  

He was commissioned as a United States Army Reserve (USAR) Second Lieutenant from the Reserve Officer Training Corps (ROTC) on 12 May 1987 with a concurrent call to active duty.  He was promoted to the rank of Captain on 1 March 1992 and accepted a Regular Army appointment on 15 May 1995.

He was considered and selected for promotion to the rank of Major by the FY97 Major Army Promotion Selection Board that was released on 16 April 1997.

A suspension of favorable personnel actions (Flag) was initiated against the applicant on 14 October 1997.

On 6 May 1998, he was convicted by a General court-martial of assault consummated by a battery.  He was sentenced to be reprimanded.  The      court-martial conviction was published in General Order (GO) number 4 by his command in Panama on 26 April 1999.

On or about 1 September 1998, PERSCOM announced promotions to the rank of Major which included individuals who had sequence numbers on the promotion list that were both prior to and subsequent to the applicant’s sequence number.  The applicant’s name was not on the published list for promotion to the rank of major on 1 September 1998.

On 11 September 1998 the applicant’s brigade commander initiated action to remove the applicant from the promotion list based on his court-martial conviction.

On 2 October 1998, the Total Army Personnel Command (PERSCOM), Promotions Branch initiated a suspension of favorable personnel actions (Flag) (DA Form 268) for removal from the selection list.

The PERSCOM sent the applicant a notification on 21 October 1998 informing him that he was being referred to a Promotion Review Board (PRB) to determine if he should be removed from the promotion selection list based on his         court-martial conviction.  He was also informed that he had 30 days to submit information on his behalf on why he believed that he should be retained on the promotion list.  The applicant acknowledged receipt of the notification on 4 November 1998 

The applicant retained civilian counsel and on 1 February 1999 his counsel responded to the PRB notification with a rebuttal.  He asserted that because the notification was initiated after the effective date of promotion, the applicant should have been promoted and that the PRB action was in fact legally nullified.  He further contended that because the Department took no action to suspend favorable personnel actions until after the effective date of the applicant’s promotion, it in effect could not be done after the fact because the applicable laws and regulations required action beforehand.  Inasmuch as no delays of the applicant’s promotion were ever initiated at any level, he was entitled under law and regulation to be promoted as scheduled because the Department is obligated to follow its own regulations.

On 1 June 1999, the PRB voted unanimously to remove the applicant from the promotion list.  The Secretary of the Army approved the results of the PRB on 8 July 1999.

On 26 August 1999, GO number 6 was published by his command in Puerto Rico which rescinded GO number 4.  It reiterated the applicant’s court-martial conviction and incorporated the reprimand that he received as punishment. 

The BCNR case cited by the applicant’s counsel was obtained by a staff member of the Board.  The cited case essentially involves a Marine Corps officer who received nonjudicial punishment, was selected for promotion to the rank of Captain, was identified as potentially requiring removal action and was referred as such to the Secretary concerned prior to the approval of the promotion list.  At the time the list was approved, the applicant’s name was not on the list.  However, it appears that action to notify the applicant of possible removal was unnecessarily delayed for about 15 months before he was eventually reconsidered for promotion and released from active duty due to being twice nonselected for promotion. 

In the processing of the case an advisory opinion was obtained from the PERSCOM Promotions Branch which opined, in effect, that the applicant was properly referred to and considered by a PRB and that relief was not warranted in his case. 

The opinion was referred to the applicant for comment and the applicant’s counsel responded to the effect that the Army did not follow its own regulations by causing the delay of the applicant’s promotion before the effective date and thus missed its chance to deny him his promotion.  He further opined that the Board should grant the applicant’s request. 

A review of the applicant’s records failed to reveal when the original flag           (14 October 1997) was lifted by the applicant’s command.

Army Regulation 624-100 provides the policies and procedures for the conduct of a PRB.  It states, in pertinent part, that a PRB is convened to consider the promotion status of an officer who is recommended for removal from a promotion list.  The Department will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected.  An officer may be referred to a PRB based on a court-martial conviction.  When an officer is referred to a PRB, a DA Form 268 will be prepared by the Department upon favorable closing of a previous DA Form 268 that was or should have been imposed while an officer was on the promotion list or when the officer was recommended for removal.    

Paragraph 1-9 of that regulation provides that an officer’s promotion is automatically delayed when in a non-promotable status, therefore an officer is not promoted (in spite of publication of promotion orders) when serving a     court-martial sentence or punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), to include suspended punishments or if they are under, or should be under suspension of favorable personnel actions.

Title 10, section 624, Unites States Code, provides, in pertinent part, that officers will be promoted to the next higher grade in the order in which they appear on the promotion list.  However, the promotion may be delayed if the officer is under charges that have not been disposed of, is under investigation to determine whether disciplinary action of any kind should be brought against the officer, or the officer is being considered for separation for substandard performance of duty and certain other reasons.  If no disciplinary action is taken against the officer, if the charges against the officer are withdrawn or dismissed, if the officer is not ordered removed from active duty by the Secretary concerned, or if the officer is acquitted of the charges against him, then unless action to delay an appointment has been taken, the officer will be retained on the promotion list and shall, upon promotion to the next higher grade, have the same date of rank and effective date as he would have had if no delay had intervened.  However, the appointment of an officer may also be delayed in any case in which there is cause to believe that the officer is morally or professional unqualified to perform the duties of the grade for which he was selected for promotion.  If the Secretary concerned later determines that the officer is qualified to perform in the higher grade, the officer will be given his original effective date and date of rank for promotion as if the delay had not occurred. 

It also provides that an appointment of an officer may not be delayed under this subsection unless an officer has been given written notice of the grounds for the delay, unless it is impractical to give such written notice before the effective date of the appointment, in which case written notice shall be given as soon as practicable.  In addition, the law mandates that an officer whose promotion has been delayed under this subsection shall be afforded an opportunity to submit a written statement to the Secretary concerned for his careful consideration. 

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

1.  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 this requirement.

2.  While the Board cannot determine with any degree of certainty when the original suspension of personnel actions (FLAG) was lifted prior to the Department initiating a DA Form 268 on 2 October 1998, it is apparent that the applicant should have been under such a suspension until such time as the punishment he received at his trial by court-martial had been accomplished.

3.  It is also likely that given his assignment to an overseas command, there was a time delay between the time personnel actions were taken and the time they reached the Department.  In any event, it appears that the Department was aware that he was under a suspension of favorable personnel actions due to the fact that his name was omitted from the list of personnel to be promoted at the time his sequence number was reached.

4.  In any event, the Board finds that the applicant’s contention that because action was not taken to remove him from the promotion list before his sequence number was reached, in effect, nullified the Department’s right to do so at a later date, is without merit.  The provisions of applicable law and regulation provide that an officer will be given the original date of rank and effective date of promotion as they originally would have received, had a delay in promotion not occurred.  

5.  Although not explained in the available records, it is also noted that the punishment was not finalized against the applicant until 26 August 1999, just 5 days prior to his sequence number being reached.  While it is likely that the delay was due to an appellate review of the court-martial, the Board does not find that the delay in referring the applicant to a PRB to be unreasonable under the circumstances.  It is also reasonable to believe that the applicant was aware that his case had not been finalized due to his not having received his punishment (reprimand).

6.  The Board also finds that the applicant was properly removed from the promotion list by a duly constituted PRB in accordance with the applicable laws and regulations in effect, with no indication of any violations of the applicant’s rights.

7.  The Board agrees with the applicant’s assertion that the Department is obligated to follow its own regulations; however, the Board does not agree with the applicant’s interpretation of the applicable regulations or his assertion that they were not properly followed in his case.

8.  After reviewing the BCNR case cited by the applicant’s counsel, the Board finds that the circumstances are dramatically different in their application to the applicable laws and regulations and finds that the delay of the applicant’s promotion was consistent with the intent of the applicable laws and regulations, was initiated within a reasonable period of time under the circumstances, and that the applicant’s rights were fully protected.

9.  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

___ena__  ___jhl___  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR2000040502	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/09/21	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  312	131.0200/rem fr prom list	
2.		
3.		
4.		
5.		
6.