IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20160000352 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 IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20160000352 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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20160000352 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 reinstatement to the Fiscal Year 2014 (FY14) Colonel (COL) promotion list. 2. The applicant states: a. He should not have been removed from the FY14 COL promotion list. He received a referred Academic Evaluation Report (AER) based on not completing the Senior Service College (SSC). SSC is not a requirement for promotion to COL. Although a referred AER was generated, the AER was not in in his Promotion Board File (PBF) and was placed in his file after the FY14 promotion board was over. b. The AER was not due to any action unbecoming of an officer that would require Uniformed Code of Military Justice (UCMJ) action and he completed his assignments within the resources provided. Officers can be promoted to COL without attending SSC. His performance record allowed him to be selected for SSC and promotion to COL. He earned and deserves to be placed on the FY14 COL promotion list. He remained a solid officer based on his last Officer Evaluation Report (OER) and should be reinstated on the FY14 COL promotion list. 3. The applicant provides: * an Officer Record Brief, dated 4 September 2014 * 21 DA Forms 67-9 (OER) for rated periods from 4 May 1996 through 26 June 2013 * three DA Forms 1059 (Service School Academic Evaluation Report (AER)), dated between 16 March 2000 and 21 March 2008 * two self-authored U.S. Army War College (USAWC) Strategic Articles, dated November 2013 and 1 March 2014 * four memoranda, dated between 23 December 2013 and 26 January 2015 * self-authored memorandum for record (MFR), dated 25 March 2014 * DA Form1059-1 (Civilian Institution AER), dated 4 April 2014 * two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 28 August 2014 and 26 January 2015 * self-authored memorandum to the Promotion Review Board (PRB), dated 4 September 2014 * four statements of support addressed to the PRB, dated between 8 and 29 September 2014 * DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) OER) for the rated period 10 June 2014 through 9 June 2015 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed a second lieutenant Reserve officer on 31 December 1991 with a concurrent call to active duty. He served in a variety of stateside and overseas assignments including three deployments to Kuwait and Iraq. On 1 October 2009, he was promoted to the rank of lieutenant colonel (LTC) in the Regular Army. 2. On 15 July 2013, he was assigned to the USAWC Fellowship Program, USAWC, Carlisle Barracks, PA, with duty at Carnegie Mellon University (CMU), Pittsburgh, PA. 3. The applicant provides a 10-page USAWC Strategic Article titled Insider Threats: The Psychological Aspects, dated November 2013, wherein he stated the paper was submitted as partial fulfillment of the requirements of the USAWC Fellowship Program. 4. In a memorandum, dated 23 December 2013, the applicant was notified by COL CEG, Faculty Instructor, USAWC, that the Fellowship Strategic Paper he submitted did not meet academic requirements. COL CEG stated: a. The writing suggested the applicant would not be able to prepare a civilian research paper. He received an assessment of "2 - Paper reflects a strategic analysis that is modest and/or not aptly supported by well organized, high quality evidence. Writing facility is poor to modest at best and tends to be vague and unclear. Greater attention to writing clarity, efficiency, and detail is needed." b. The applicant had 10 days, then requested and received a 7-day extension to revise/resubmit his strategy paper. The latest submission did not meet acceptable academic rigor for a strategy paper. 5. The applicant provides a 20-page USAWC Strategic Article titled Identifying Psychological Traits, Cyberspace Growth, and Security Measures, dated 1 March 2014, wherein he stated the paper was submitted as partial fulfillment of the requirements of the USAWC Fellowship Program. 6. On 25 March 2014, he received a Civilian Institution AER from CMU, a referred AER for the rated period 27 July 2013 through 6 June 2014. The AER stated the applicant was a Senior Service College (SSC) Board selectee and a USAWC Fellowship Program participant. He was assigned to the USAWC while conducting a resident fellowship at a civilian institution. The applicant was involuntarily disenrolled for failure to maintain academic standards and progress. 7. In a self-authored MFR, dated 25 March 2014, the applicant stated, in part: a. Aside from his failure to maintain academic standards according to the grading rubric, he was a valuable asset to the USAWC, CMU, and U.S. Army. In order to complete the strategy paper, he worked through several drafts with his USAWC faculty advisor and relentlessly tried his best to incorporate his recommendations in order to produce a successful paper. He worked doctorate degrees and felt he developed a paper that met USAWC standards. However, his USAWC advisor disagreed. b. He recognized that research writing was one of his weaknesses but the experience at CMU was invaluable. He would apply the knowledge he attained to advance network security and modernization in his service to the U.S. Army. 8. He was subsequently selected for promotion to COL by the FY14 COL, Operations Support (OS), Army Selection Board. 9. On 2 June 2014, the referred AER was added to his official military personnel file (OMPF). 10. On 25 July 2014, he was assigned to the U.S. Army Network Enterprise Technology Command (NETCOM), Fort Belvoir, VA. 11. In a memorandum, dated 28 August 2014, subject: Delay of Promotion and Referral to a PRB, from the U.S. Army Human Resources Command (HRC), the applicant was notified that: a. The FY14 COL, OS, Army Selection Board which convened on 5 May 2014 recommended him for promotion to COL. In accordance with Title 10, U.S. Code (USC), section 624(d)(2) and Army Regulation 600-8-29 (Officer Promotions), chapter 8, the appointment of an officer may be delayed in any case in which there is cause to believe the officer was mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion. b. He received a referred AER that was not filed in his OMPF until after the convening date of the promotion selection board. His records would be referred to a PRB which would recommend to the Secretary of the Army (SA) one or more of the following: (1) that he be retained on the promotion list, (2) his name be removed from the promotion list, (3) and/or that he show cause for retention on active duty. 12. On 28 August 2014, a flag was initiated by Headquarters, Department of the Army (HQDA) pending consideration of his removal from the selection list. 13. In a rebuttal to the PRB, dated 4 September 2014, the applicant stated, in part: a. He was extremely grateful and humbled by his selection to COL by the FY14 COL promotion board. His was highly capable and expressed his willingness to serve the country as a COL in the U.S. Army. He was a primary selectee to attend the SSC Fellowship Program. As a fellow with CMU, he had to submit a 1,500 word strategy paper of strategic importance for publication, a 5,000 word civilian research paper, monthly significant activity (SIGNET) reports, and participate in university outreach and engagements. b. He felt he had the expertise and knowledge to strategically research and generate a product that would describe the psychological aspects of insider threats. He began his research in August 2013, submitted the paper on 15 November 2013, and the paper was returned to him with comments. He adjudicated the comments and resubmitted it on 20 December 2013. On 3 January 2014, he received a grade of 2 and was subsequently notified that the SSC would determine whether to disenroll him from the Fellowship Program. While awaiting the final decision, he attended classes and continued his research. On 1 March 2014, he resubmitted the civilian research paper and on 10 March 2014 he was notified of his disenrollment. He received the referred AER for not achieving a grade of 3 on the strategy paper. c. Aside from the referred AER, his Army records are unblemished. He had served as a Command, Control, Communications, Computer and Intelligence Systems Officer; Vice Director J6 Information; and Liaison Officer for the Multinational Division Central South (MND-CS) Iraq. He had earned six consecutive "above center of mass" ratings and his past performance had demonstrated his potential for increased responsibility to lead Soldiers and civilians. d. His awards included the Bronze Star Medal, Defense Meritorious Service Medal, Meritorious Service Medal, Joint Service Commendation Medal, Army Commendation Medal, Joint Service Achievement Medal, Army Achievement Medal, and Joint Meritorious Unit Award. e. The selection process for COL was extremely competitive and his performance appeared to be the discriminator. He was qualified to perform the duties of a COL mentally based on his performance in stressful jobs from Iraq to the U.S. Army Cyber Command. Based on the criteria used in the FY14 COL promotion board, he recommended the SA retain him on the promotion list. 14. In a memorandum for the Deputy Chief of Staff (DCS), G-1, the SA directed the immediate removal of the applicant's name from the FY14 COL, OS, Army Promotion Selection List, under the provisions of Title 10, USC, section 629(a), Executive Order 12396, and Army Regulation 600-8-29, paragraph 8-1b. 15. On 26 January 2015, he was notified by HRC that his records were referred to a DA PRB for reconsideration of his promotion status and the SA decided to remove him from the promotion list. An officer who is removed from the promotion list under Title 10, USC, section 629, continues to be eligible for consideration for promotion. However, if the officer was not recommended for promotion by the next regular promotion selection board, he/she shall be considered to have twice failed selection for promotion. 16. On 26 January 2015, the flag was removed from his records as the case was closed unfavorably. 17. On 11 March 2016, an advisory opinion was obtained from Officer Promotions, HRC. The advisory official recommended denial of the applicant's request and opined: a. The applicant received a referred AER for the period 27 July 2013 through 6 June 2014 which was not filed in his OMPF until after the convening date of the promotion selection board. Therefore, in accordance with Title 10, USC, section 624(d)(2) and Army Regulation 600-8-29, chapter 8, his records were referred to a PRB. b. The applicant was given due process and was informed the PRB would recommend to the SA one or more of the following: (1) that he be retained on the promotion list, (2) his name be removed from the promotion list, (3) and/or that he show cause for retention on active duty. He was able to provide any documents of his choosing for the PRB's and the SA's review prior to the SA final decision. The exact reason the SA elected to remove the applicant from the FY14 COL, OS, Army promotion list was not known as the SA did not divulge his reason(s) to their office. 18. On 15 March 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned officers and warrant officers (WO) on the active duty list (ADL). a. Paragraph 1-10 states promotion eligibility is determined by the DCS, G-1 and approved by the SA. A LTC must serve at least 3 years’ time in grade (TIG) to be considered for promotion. Table 2-2 shows the educational requirement for promotion to COL is completion of the Command and General Staff Officers Course (CGSOC). b. Paragraph 1-19 states an officer’s promotion is automatically delayed when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her, or when under, or should be under, a flag, and/or when a memorandum of reprimand (directed for filing in the OMPF before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion. c. Paragraph 8-1 states if the SA recommends removal of the name of an officer from a selection board’s report and the recommendation includes information that was not presented to the selection board, the information will be made available to the officer. The officer will be afforded a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation. An officer who has been provided with 14 days from the date of receipt of such information to submit comments is considered to have been provided a reasonable opportunity, unless good cause is shown. d. Paragraph 8-2 states an officer may be referred to a PRB when derogatory information not filed in the OMPF is received by HQDA, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. In addition, an officer may be referred to a PRB if he/she receives a referred OER, punishment under Article 15, UCMJ, any court-martial conviction, and a memorandum of reprimand or other adverse documentation is filed in the OMPF. e. Paragraph 8-3 states flags will be as prescribed in appropriate regulation. HQDA will prepare a DA Form 268 upon referral of a case to a PRB by HQDA. HQDA will remove the flag (if not earlier removed by the SA or the Secretary’s designee) when the President or the President’s designee decides whether the officer should be removed from the promotion list. f. The DCS, G-1 or designee is authorized to refer cases to a PRB except those involving promotion to or within general officer grades. Before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board. g. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB. The PRB’s recommendation is only advisory to the SA. An officer who is removed from a promotion list continues to be eligible for consideration for promotion. Officers considered by a PRB will be informed of the results, in writing, through their chain of command. 2. Title 10, USC, section 624(d)(2) (Promotions, how made) states that under regulations prescribed by the Secretary of Defense, the appointment of an officer under this section may also be delayed in any case in which there is cause to believe that the officer has not met the requirement for exemplary conduct set forth in section 3583, 5947, or 8583 of this title, as applicable, or is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion. DISCUSSION: 1. Each promotion board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints. The SA establishes limits on the number of officers to be selected. The selection process is an extremely competitive process based on the "whole officer" concept. 2. The evidence of record confirms that in July 2013 the applicant was assigned to the USAWC Fellowship Program with duty at CMU. In March 2014, he was involuntarily disenrolled from the USAWC Fellowship Program for failure to maintain academic standards and academic progress. 3. On 2 June 2014, the referred AER documenting his removal from the fellowship program was added to his OMPF. However, prior to the filing of the referred AER he had been selected for promotion by the FY14 COL selection board that convened on 5 May 2014. 4. The fact that SSC was not required for promotion to COL is a moot point. As he received a referred AER that had not been considered by the selection board, his records were properly referred to a PRB as required by governing regulations. He was afforded the opportunity to comment on the adverse information and he did so. After consideration of all the facts, the SA directed his removal from the promotion list. There was no injustice or error. 5. Although he was removed from the FY14 COL Army Selection List, he remained eligible for consideration for promotion to COL by subsequent promotions boards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000352 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000352 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2