BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160002381 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160002381 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160002381 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, in effect, retroactive promotion to the rank/grade of lieutenant colonel (LTC)/O-5, with an effective date and date of rank (DOR) of 1 October 2010, and entitlement to back pay and allowances based on this promotion. He also requests a personal appearance before the Board. 2. The applicant states he was passed over for promotion due to an unjust FLAG [suspension of favorable personnel actions] placed in his official military personnel file (OMPF), which prevented him from continuing his military education. There was an improper handling of credentialing records to prejudice career advancement and the improper destruction or loss of personnel and medical records between 1991 and 2003. 3. The applicant further states: There were several dates of discovery beginning on or about June 2003 when the Service member was sent on a two-year PCS assignment to South Korea following notification of military personnel regarding discriminatory practices of the National Board of Medical Examiners which then required addressing by the US Federal Courts; April 2004 derogatory was placed in my OMPF without my knowledge; February 2006 while in Afghanistan being notified that records expected to be maintained by HRC had been sent to the National Personnel Record Center in St. Louis, MO; 2007 August informed that derogatory information in the OMPF would most likely be used to prevent promotion to the next rank of higher; 2009 September while deployed in Iraq unlawful attempt to force reparation from active military service in a dishonorable manner; 2010 April discovered a flag was placed in my official to prevent selection for promotion or service school; 2011 August informed by an investigator during an interview for a Top Secret Clearance investigation to file a Congressional Inquiry owing to unjustified information observed in the personnel record; 2014 November discovered that all personnel records from 1991 to early 2003 were missing from the HRC archive or database; 2015 May discovered that HRC Portal which contains vital information had grossly incorrect information regarding civilian education and service component. The website listed civilian education as Baccalaureate degree. The service member earned a BS, MS and Ph.D. degree prior to joining the service and a M.D. in 1999 since joining the service,; The Service member the military service as a HPSP Scholarship recipient in the Medical Corps July 1991 and was transferred to the Medical Service Corps in 2005 with the intent to end his military career; 2015 June additional meaningless changes were made to the Service member's records to indicate insufficient time in service to qualify for full retirement benefits. The Service member is an outstanding officer who intended to serve with honesty and integrity and who expected fair professional growth while in the service. 4. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the Army on 5 June 2003, as a captain (CPT) in the Medical Corps. 2. Orders A-06-392791, issued by the U.S. Total Army Personnel Command (TAPC), St. Louis, MO on 5 June 2003, ordered the applicant to active duty with assignment to Company A, 168th Medical Battalion, APO, AP (Republic of Korea) to fulfill his active duty requirement. He was issued a report date of 15 July 2003, which was later amended to 4 August 2003. 3. A review of the applicant's record reveals the following: a. He was promoted on 1 October 2004 to the rank of major (MAJ). b. He received a General Officer Memorandum of Reprimand (GOMOR) on 13 July 2005, from the Commander, Eighth U.S. Army following a CID investigation, for failing to maintain proper control over his personal finances. (1) In particular, on two separate occasions, he cashed personal checks in the amount of $6,500 and $5,000, when he did not have sufficient funds in his account. Additionally, he attempted to deposit into his account a counterfeit cashier's check in the amount of $120,000. (2) He failed to uphold the standards of conduct expected of all Soldiers, and tarnished the reputation of the Officer Corps. As an officer, he had a moral and ethical responsibility to practice the highest degree of honesty, candor, and personal accountability. His actions compromised his integrity and brought disrespect on the Officer Corps and greatly reduced a level of trust as a result. (3) On 14 July 2005, he acknowledged receipt of the GOMOR and submitted matters of rebuttal on 15 July 2005. He stated his sincere apologies for any impropriety, that the checks were in error, and he was a victim of a potential fraud regarding the cashier's check. He requested the GOMOR not be placed in his OMPF. On 27 July 2005, the Commander, Eighth U.S. Army directed the GOMOR be filed in his OMPF. c. A DA Form 1059 (Service School Academic Evaluation Report), dated 21 May 2008, shows he completed the Army Medical Department (AMEDD) Captain's Career Course. It further showed his MOS as 70H (Health Services Plans, Operations, Intelligence, Security, and Training) and his branch as MS (Medical Services Corps). 4. On or about 1 May 2009, he appealed his GOMOR to the Department of Army Suitability Evaluation Board (DASEB) and requested it be removal from his OMPF, or in the alternate, that the GOMOR be placed in the restricted portion of his OMPF. On 29 May 2009, by unanimous vote, the DASEB denied his request for the removal of the GOMOR but granted his request for the transfer of the GOMOR to the restricted portion of his OMPF. The DASEB's action was not to be considered retroactive; therefore, it did not constitute grounds for referral to a special selection board for a previous non-selection. 5. On or about 11 January 2010, the applicant received a memorandum from the Commander, U.S. Army Human Resources Command (HRC), subject: Initiation of Elimination. This memorandum stated: a. He was identified by the FY09, LTC, Medical Service Corps (MS), Promotion Selection Board to show cause for retention on active duty because of misconduct, moral or professional dereliction. b. The action was based on the following specific reasons for elimination: the series of substantiated derogatory activity resulting in a GOMOR, dated 13 July 2005, and filed in his OMPF; and conduct unbecoming an officer as indicated by the above. c. In conjunction with this action, a DA Form 268 (Suspension of Favorable Personnel Actions (Flag)) was initiated according to applicable regulations. 6. Several memoranda from the applicant's chain of command, to include the Commander, I Corps, dated 8 March 2010, recommended his elimination from the Army for acts of personal misconduct. 7. On 28 June 2011, the Commander, HRC, after reviewing the applicant's rebuttal and all relevant documentation, including the recommendation from his chain of command, decided to terminate the elimination proceeding against him. On the same date, a DA Form 268 was initiated to remove the previous flag action. 8. A DA Form 1059, dated 20 August 2014, shows he successfully completed the common core curriculum of Command & General Staff Officer Course (Intermediate Level Education (ILE)) from 19 August 2011 through 12 August 2014. 9. The applicant reached 62 years of age on 16 September 2015. 10. A DA Form 199-1 (Formal Physical Evaluation Board Proceedings (PEB)), shows a PEB was convened on 19 April 2016 at the National Capital Region. It states his medical conditions were evaluated on or about 8 April 2015, and he was within 12 months of his mandatory retirement date due to reaching age 62. This board found the applicant physically fit and that his disposition was fit. 11. Orders 102-0004, issued by U.S. Army Garrison, Fort Detrick Army Element, Walter Reed National Military Medical Center on 11 April 2016, reassigned him to the transition center for the purpose of retirement, effective 30 April 2016, with placement on the retirement list on 1 May 2016. 12. The applicant was honorably retired on 30 April 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired by reason of reaching maximum age in the grade of MAJ and transferred to the USAR Control Group (Retired). He completed a total of 12 years, 8 months, and 27 days of net active service this period with 12 years, 1 month, and 3 days of total prior inactive service. 13. A review of the applicant's eligibility and consideration for promotion to LTC was conducted by Chief, Department of the Army Officer Promotions Branch, Special Actions, HRC, who confirmed the applicant was considered by the FY09 (below the zone), FY10, FY11, FY12, FY13, FY14, FY15, and FY16 promotion boards for promotion to LTC. 14. In connection with the processing of this case, an advisory opinion was obtained on 27 September 2016 from the Chief, Department of the Army Officer Promotions, Special Actions, HRC. The advisory opinion states: a. Based on a review of our records and the information provided, we find that [Applicant]'s request does not have merit. b. The exact reason(s) for [Applicant]'s non-selection for promotion are unknown because statutory requirements set forth in Title 10 Law, U.S. Code Armed Forces, subsection(s) 613a and 14104 prevent disclosure of board proceedings to anyone outside of the promotion board in question. Therefore any comments, conjuncture, or hearsay by non-voting board members are purely speculative. The decision not to select [Applicant] for promotion to LTC does not mean that he was not a qualify officer, nor was it a wrongful act. Rather, it is indicative of the very competitive nature of the promotion system and the quality of the Army officers that he competed against for promotion. In addition, suspension of favorable action(s) information (flag) is not considered in the selection process. c. All promotions selection board announcements allows for a considerable amount of time for every officer to review and update their board files as they see fit, it also allows the officer an opportunity (if desired) to submit correspondence to the President of the Board and its members to address any issues he or she feels is important during consideration, failure to do so does not constitute material unfairness or a material error to be reconsidered for promotion by a Special Selectin Board. d. A review of [Applicant]'s file and DD Form 214 reflects that he retired as of 30 April 2016 by reason of maximum age. 15. The advisory opinion was provided to the applicant on or about 19 October 2016, to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) prescribes Army policy for the suspension of FLAG function of the military personnel system. Paragraph 2-9b, Rules for removing a FLAG, states, in pertinent part, a FLAG will be removed when UCMJ action is closed or dropped without action, or when punishment from court-martial, civilian trial, or NJP is completed. A FLAG on a Soldier who is on a HQDA promotion list may only be removed by the Commander, HRC. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty (AD) to the Reserve component and discharge functions for all AD for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. An officer may only be retained past separation date for medical reasons when continued hospitalization and/or physical disability processing is required. An officer being retired (voluntary or involuntary) due to maximum age or length of service will not be retained on AD unless the medical condition requires referral to a physical evaluation board (PEB). An officer who is medically fit for retention will not be retained beyond the established separation date. An officer found fit for duty by a PEB will retire on the first day of the month following the month the officer is found fit. b. A mandatory retirement is required by law and is initiated by Headquarters, Department of the Army. An officer must be retired on the date established by the applicable statue unless specifically provided by law. An officer may request retirement and be retired voluntarily on mandatory retirement date. Unless otherwise retired or separated, an RA commissioned officer will retire effective the first day of the month following the month the officer reaches age 62 (Title 10, US Code 1251). 4. Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of Regular Army officers. A special selection board may be convened to consider or reconsider a commissioned officer for promotion based on erroneous non-consideration or material error which existed in the record at the time of consideration. A material error is of such a nature that, in the judgment of the reviewing official, it caused the individual's non-selection by a promotion board and had the error been corrected at the time the individual was considered, a reasonable chance would have resulted in the individual having been recommended for promotion. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. a. The performance section is used for filing performance, commendatory, and disciplinary data. It is routinely used by career managers and selection boards. Documents placed on this fiche are limited to those that provide evidence of a Soldier’s demonstrated performance. These documents are used for evaluation and selection purposes. Documents will not be obliterated or moved from this section unless directed by an authority authorized to correct or move documents filed in this section. Commanders, MPD/PSC, or other Department of the Army (DA) agencies may request the complete section, or specific documents thereon, to conduct legal proceedings, investigations, qualitative management, or elimination actions. If there are no legal objections and the OMPF custodian determines the request to be justified, the OMPF custodian may authorize the release of the performance section. b. The restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent. This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. 6. The HRC Selection Boards Frequently Asked Questions website states the military education requirement of completion of the Command and General Staff Officers Course or ILE is not mandated for promotion for active duty LTC boards. DISCUSSION: 1. The applicant contends that he was passed over for promotion due to an unjust flag placed in OMPF thereby preventing continued military education. Per regulatory guidance and the AHRC advisory opinion, a flag is not considered in the selection board process. It is only after a selection board recommends an officer for promotion, that is becomes a possible inherence. The applicant was never in a promotable status; thereby, making the contention a non-issue. Secondly, he continued his military education during this period with the completion of ILE from 2011 through 2014. 2. Additionally, he contends of improper handling of credentialing records to prejudice career advancement and the improper destruction or loss of personnel and medical records between 1991 and 2003. These issues are not within the purview or expertise of the board; therefore, these contentions are non-issues. 4. The Chief, DA Promotions, HRC confirmed he was not in a promotable status prior to his separation from the Army. He was considered and not selected for promotion to LTC by the seven selection boards (FY10 to FY16) after his FY09 below the zone look in which he was required to show cause for retention on active duty. As pointed out by the advisory opinion, suspension of favorable action information is not considered in the selection board process. 5. Promotion selection boards use the "whole file concept" when making promotion recommendations. Board members do not put undue focus on any one item. They review all evaluation reports, a record of the officer's training history, civilian and military education and other critical elements, the photograph, and awards and decorations. 6. Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints. The Secretary of the Army, in his MOI, establishes limits on the number of officers to be selected. The selection process is an extremely competitive process based on the "whole officer" concept. It is an unavoidable fact that some officers considered for promotion are not selected. There are always outstanding officers who are fully qualified to perform duties at the next higher grade, who are not selected because of selection capability restrictions. 7. It is unfortunate that the applicant was not selected for promotion to LTC; however, after a comprehensive review of the evidence in his record and his contentions and arguments in support of his application, other than his dissatisfaction and beliefs regarding the reason, the evidence does not show his non-selection for promotion was a result of material error, inaccuracy, injustice, and/or inequity. 8. 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. There is a presumption of regularity in the conduct of government affairs. There is no evidence of error or injustice in this case. 9. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002381 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002381 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2