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Can my Commander choose to keep me on the Promotion List if I am in the Overweight Program?

I failed tape and asked the Commander for a retape that was declined. I got off the ABCP three weeks later having met tape. 6 months later, I am told that the flag was never put through and I was counseled by my 1SG for removal from the promotion list. I read that is is waiverable by the commander and discussed it with my CO and he chose to still removed me from the promotion list. Is this a legal move? What are the recourses for this action? I am following up with legal but I reach RCP in 6 months and have training (ALC) in between allowing me to only go to one board before the training and have only one chance after the training to get my (P) back before I RCP.

Battlefield Deception Guide - From Alexander the Great to Norman Schwarzkopf

Based on AR 600-8-19 you can remain on the promotion list and the Commander can make the exception.  See extract below.

Based on the information provided the Commander can definitely keep you on the list.  The question is why did he remove you?  You might consider see JAG asking them to prepare a legal opinion that supports your position with all the regulatory information.  Then you could consider writing a factual and professional formal request to your Commander explaining your position and asking him to place himself in your position.

If he still refuses you can submit an Article 138 (Redress against a Commander).  Remember this should be your last course of action in my opinion as I consider it a Nuclear Option.

Extract of  AR 600-8-19

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Mark is a Retired Command Sergeant Major with 26 years of military leadership experience. He held 3 military occupational specialties (Field Artillery, Nuclear Weapons Tech, and Ammunition Ordnance). Mark is one of the leading military authors in the fields of leadership, counseling, and training.

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