IN THE CASE OF: BOARD DATE: 5 March 2016 DOCKET NUMBER: AR20150002547 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 major (MAJ) based on the Fiscal Year 2011 (FY11) Chaplain (CH) MAJ Promotion Selection Board (PSB). He also requests a personal hearing. 2. The applicant states where his name should have appeared on the recommended list, the word "controlled" is entered. 3. The applicant provides: * Recommended List of selectees for promotion * Redacted page of the members of the FY11 PSB * U.S. Postal Service certified receipt * Photograph * Letter from him to the U.S. Army Criminal Investigation Command (CID) * Letter of support from a retired CH. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the Regular Army (RA) (2 September 1982 to 2 July 1986), the applicant was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant and executed an oath of office on 8 April 2003. 2. He completed the CH Officer Basic Course from 23 April to 23 May 2003. He was promoted to captain (CPT) with an active duty date of rank as 21 April 2003. 3. Following verification of his professional and ecclesiastical qualifications of Religious Ministry Professionals, he was appointed as an RA officer in the rank of CPT on 11 November 2005. He completed the CH Captain Career Course from January through July 2007. 4. He was considered for promotion to MAJ by the FY10 and the FY11 CH MAJ PSB, but he was not selected by either board. Accordingly, he was honorably discharged from the RA on 1 October 2011 as a two-time non-selection for permanent promotion. 5. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 5 months, and 11 days of active service with entitlement to separation pay. 6. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 October 2011. He was assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 7. On 20 March 2012, the U.S. Army Human Resources Command (HRC) published Orders B-03-202152 promoting him to MAJ with an effective date and date of rank of 7 March 2012. 8. An advisory opinion was received from the Officer Promotions Branch at HRC on 13 April 2015 in the processing of this case. An advisory official stated: a. The Officer Promotions Branch conducted a review of the applicant's request for correction of military records to determine if he was selected for promotion to MAJ. The applicant was considered and not selected for promotion by the FY11 MAJ, CH, PSB. His reason(s) for non-selection for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613a, prevent disclosure of board proceedings to anyone outside of the promotion board. Therefore any comments, conjecture, or hearsay for non-selection are purely speculative. The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered. This office can only conclude that the previous promotion board determined that his overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected for promotion. b. Regarding his allegation that an adverse action (flag) was illegally placed in his promotion file, the Total Officer Personnel Management Information System, which is the system of record for officers, did not display any type of flag at the time the board convened. c. Regarding the name "Controlled" and social security number (SSN) and the number of candidates selected by the FY11 MAJ CH PSB, the Privacy Act of 1974, the Freedom of Information Act (FOIA) (Exemption 6), Army Regulation 340-21 (The Army Privacy Program), and Army Regulation 25-55 (Department of the Army FOIA) prohibit the disclosure of personal information without the person's written consent; therefore, HRC cannot discuss anything related to the SSN in question. However, personnel coded as "Controlled" serve under the Special Management Division and the Command General, U.S. Army Human Resources Command, (through policy letter 21) prohibits the release of the names of any "Controlled" personnel to the public. As a result only 57 names were released. d. Without question, the applicant received fair and equitable consideration for promotion and was not selected. There was not an erroneous flag placed in his file, and the name "Controlled" and SSN are not his. 9. The applicant responded with a rebuttal on 5 May 2015. He stated: a. Honor is never to be compromised, and no one is above the law. The recent scandal with General Petraeus is a solemn reminder of the damage caused by a senior leader who betrays the trust of others. He too has suffered incredible injustice from a senior officer. He has yet to be fairly treated, and must seek assistance for an impartial investigation regarding the FY11 CH MAJ Promotion Board list. b. He has probable cause to believe the published [promotion] list was tampered with. In many ways it is the perfect crime. What is required for justice is a review of record. The President of his last PSB was CH (MG) Do----s Ca--er, now retired. CH Ca--er held a grudge against him for a manuscript he wrote. He had a very high record of service and outperformed all of his peers in religious leadership on a national level. He was one of the top CH’s in his Corps. He suspects that CH Ca--er wanted him out of the force. He held him in contempt. This is what he can make of a motive. The only way he could do it was by altering the promotion list which he was responsible for publishing. c. In March of 2011, his commander informed him that he was passed over for promotion. He and the brigade commander were stunned. He (the applicant) was very suspicious, but could do nothing about it, since he was stationed in Korea. The Army Times CH promotions list was incomplete. It took a year to get the list by the FOIA. Sure enough there was another entry in line where his name would appear alphabetically. That entry was "CONTROLLED," belonging to [a Ranger-qualified individual identified by the applicant]. This is an interesting fact which deserves further scrutiny. CH Ca--er was also a Ranger. He had no voting authority and he must suspect that he illegally flagged his promotion, and changed it to [the individual named by the applicant] to get rid of him (the applicant). d. He wants the Board to review the record utilizing the promotion memorandum issued by the Secretary of The Army in October of 2010. It is a very interesting memorandum. The Promotion Board panel was told to seek CH’s with joint service experience, promote Army values, leaders that would act instead of react, and take care of our Soldiers and their families. Very few CH’s have joint service experience of any merit. At the Defense Language Institute, he had the opportunity to work with every branch of the U.S. Armed Forces. He challenges the Army to find anyone who was more devoted or accomplished in this realm. He received a Meritorious Service Medal signed by General Petraeus himself for his work at “DU.” So too, he would be decorated by both the Air Force and Navy. To promote Army values, he led multiple national tributes of honor to our World War II (WWII) dead. He completed three memorial tributes in Bedford, VA on his own initiative for airmen killed in service. Each incident was complete with a ceremony and monument. None of his peers would even think of doing this. From his research in Bedford, he discovered three WWII Naval aircrews missing in the Monterey Bay from training mishaps. Once more he took on the mantle of leadership, finding their families, raising funds, researching and ordering a bronze memorial; and working jointly with each branch to honor our fallen. e. He received the Navy Achievement Medal for this accomplishment. In attendance were World War II Naval aviators and an authentic “Grumman Avenger” torpedo bomber to tell the story. This event was glorious. He would also be the only Army CH to volunteer to pray at the ceremony to honor Meriwether Lewis, 200 years after his mysterious death. He had the opportunity to meet with his relatives. They were so grateful. It was a very moving event. Not to be outdone, he is the only CH in the history of the Army to honor the 38 Women Air Force Service Pilots who were killed during World War II. The Board is encouraged to do a Google search for "Operation Celestial Flight. There is also a video of the ceremony he organized, and financed, for the last missing WASP from the war. Google YouTube "WASP Gertrude Tompkins Silver" and you will find her Veteran's Day tribute from 2008. f. He was the Class Leader for his Basic CH Class and was CH of his class for the CH Captain Career Course. Something is up. He must suspect criminal misconduct. He has a right to appeal the promotion list that put him out of the Army. He has serious misgivings that this is the list which his last board gave to CH Ca--er. Now the records must speak for themselves. g. He wants this Board to direct a review of record for [the controlled name he alleges replaced his] and himself. He saved many lives when he was with the 101st Airborne [Division], and took the heat for it. At this time the 101st Airborne Division was leading the Army in “completed suicides.” This was a very demanding assignment but he never failed his Soldiers. There, he prevented two murders and over a dozen suicides. Also he would be the only CH not to lose a Soldier during their deployment in Afghanistan. This in itself was of the supernatural, and will always remain miraculous. For over 3 years, he has been trying to get the true story of his last promotion board, but he has been blocked at every turn. No one wants to do an investigation to support the Army values. Until this review is completed, he has not been treated fairly. h. His record does not sound like the record of someone who was a failure to be selected for permanent promotion. Until this is properly investigated and answered, a great injustice remains to be addressed. He was persecuted and targeted for sharing the truth. Now, he is asking the Army to live up to its creeds, and honorably review itself. He wants a more positive response. Criminal misconduct comes from spiritual starvation. He wants to be interviewed by CID at the earliest opportunity. He has reported this matter to them numerous times. There must now be proper action. He believes it is the Board's duty to examine his claims carefully. He sent (or will send) a copy of this letter to President Obama. No general is above his Commander In Chief. 10. Title 10, USC, section 613a (Non-disclosure of board proceedings) states a. (a) Prohibition on Disclosure.— The proceedings of a selection board convened under section 573, 611, or 628 of this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. This prohibition is a statutory exemption from disclosure, as described in section 552(b)(3) of title 5. b. Prohibited Uses of Board Discussions, Deliberations, Notes, and Records.—The discussions and deliberations of a selection board described in subsection (a) and any written or documentary record of such discussions and deliberations (1) are immune from legal process, (2) may not be admitted as evidence, and (3) may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned. c. Applicability.— This section applies to all selection boards convened under section 573, 611, or 628 of this title, regardless of the date on which the board was convened. 11. Title 10, USC, section 14505 (Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy), states unless retained as provided in section 12646 or 12686 of this title, a captain on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant on the reserve active-status list of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade and who has not been selected for continuation on the reserve active-status list under section 14701 of this title, shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. 12. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. a. Paragraph 1-35 Selection board recommendations, states PSB’s will base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the Memorandum of Instruction (MOI) and keep confidential their reasons for recommending or not recommending any officer considered (emphasis added). For commissioned officers, selection boards use the method of selection directed by the MOI of fully qualified and best qualified. b. Paragraph 7-2 (Special Selection Board (SSB)), states SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. The SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required)., the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). c. Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. 13. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR reviews all applications that are properly before them to determine the existence of error or injustice. The Board directs or recommends changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record and/or recommends a hearing when appropriate in the interest of justice. b. 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. The ABCMR will decide cases on the evidence of record. The ABCMR is not an investigative body. c. 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. DISCUSSION AND CONCLUSIONS: 1. In addition to contending he should have been promoted to MAJ by the FY11 PSB and requesting a personal hearing, the applicant also contends his promotion file should be reviewed by this Board and he expresses his desire to be interviewed by CID at the earliest opportunity. 2. The applicant served on active duty from 21 April 2003 to 1 October 2011. He was twice considered for promotion to MAJ and he was not selected. As required by law, he was honorably discharged and received separation pay. a. Each PSB 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 will not be selected. There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions. b. It is unfortunate that the applicant was not selected for promotion to MAJ while he was in an active status; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations. Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time. After all, selection for promotion is recognition of potential for service in the higher grade; it is not a reward for past service. c. His contention that CH Ca--er played a role in his non-selection is speculative at best. By law, promotion boards do not reveal the basis for selection or non-selection. Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the promotion board did was correct. d. Since PSB’s are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known. A non-selected officer can only conclude that a PSB determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion. 3. With respect to the word "Controlled" and SSN and the number of candidates selected by the FY11 MAJ CH PSB, the Privacy Act of 1974, FOIA and Army Regulation 340-21 and Army Regulation 25-55 prohibits the disclosure of personal information without the person's written consent. Personnel coded as "Controlled" serve under the Special Management Division and HRC CG (through policy letter 21) prohibits the release of the names of any "Controlled" personnel to the public. 4. 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. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 5. Regarding the applicant's contention that his promotion file should be reviewed by this Board: a. The ABCMR corrects records; it is not an investigative agency. The ABCMR is not a promotion board and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR decides cases on the evidence of record. b. If an error or an injustice regarding non-selection for promotion is discovered and is substantiated, the ABCMR corrects promotion errors via the SSB. The applicant seems to misunderstand the intent of the SSB. In order to support an SSB, there must be a material error. Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. c. The applicant has not shown a material error exists. The available evidence offers no basis for granting him an SSB. 6. The applicant also contends he should be interviewed by the CID at the earliest opportunity. Such action is not within the purview of this Board. If the applicant suspects illegal activity by senior officials, a recommended course of action is to raise such issues within an appropriate forum, such as the Inspector General, law enforcement agencies, or a court of appropriate jurisdiction. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x ___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150002547 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002547 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1