ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20160014364 APPLICANT REQUESTS: * promotion to Lieutenant Colonel (LTC) * back pay for promotion to LTC * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * profile dates * DA Form 3349 (Physical Profile) * results of fiscal year (FY) 2015 LTC Acquisition Work Force (AWF) Promotion Recommendation Review (PRR) * results of FY 2016 AWF PRR FACTS: 1. The applicant states: * she would like the Board to review her case and correct the injustice of not being promoted to LTC with pay * she was referred to a medical evaluation board (MEB) in November [2015] after several years of battling chronic pain * her work days were reduced to 4 hours per day for the last 2 years * she was eligible for LTC and placed on the promotion list for the prior 3 years * because of her profile and limited amount of work time, other Soldiers were able to be promoted above her * she was unable to attend additional military schools * she's not sure how long the pain will last * her doctor referred her to an MEB where she was found medically unfit to remain in the military * she wanted to stay in the military for as long as she could * her mandatory removal date would have been in August 2028 * she joined the service in 1986 and served 15 years as an enlisted member and 15 years as an officer * she honestly feels if she would have been allowed to continue in the military, she would have eventually made LTC * she asks the Board to please consider promoting her to LTC with pay 2. The applicant received a permanent profile on 16 December 2015. She went through the MEB processes on 15 December 2015 and was referred to a physical evaluation board. She was medically retired on 1 August 2016. 3. The applicant provides the results of the FY 2015 and 2016 AWF PRR. For FY 2015, she was placed 8 out of 8 Soldier on the order of merit list and 5 out of 5 in the Acquisition Workforce. For FY 2016, she was placed 4 out of 5 Soldiers in the Acquisition Workforce. 4. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS). Selection boards will be provided a promotion consideration file (PCF) for each eligible officer containing evaluation reports, commendatory information, disciplinary information, officer record briefs, a photograph taken within the past 5 years, and communications to the board president. The selection board will base their recommendations for promotion on impartial consideration of all personnel being considered. The board will determine those who are fully qualified and best qualified. To select those who are best qualified, the board must first determine which members of a group are fully qualified. The best qualified are then selected from that group. 5. In the processing of this case, an advisory opinion was obtained on 16 July 2018, from the Chief, Personnel Policy Division, National Guard Bureau (NGB). The advisory official recommended disapproval of the request and opined: a. The applicant underwent a PRR for FYs 2014, 2015, and 2016. The applicant placed 5 out of 5 in FY 2015 and 4 out of 5 in FY 2016 and was not selected for promotion by the Department of the Army (DA) in FY 2016. The applicant underwent an MEB and was retired for a permanent disability on 1 August 2016. b. There is no evidence present to support the applicant's statement that she was discriminated against due to her physical disability or medical issues or that other Soldiers were able to be promoted over her. The applicant reports the Soldiers recommended for promotion to LTC for their states were 1 and 2 of in their career field. This disproves the impression that peers in the applicant's career field unjustly surpassed her in promotion. c. The applicant implies she was pending promotion for 3 years but an approval authority did not complete the promotion action. The evidence shows the applicant was low-ranking on the order of merit list for two of those years and was not selected for promotion by DA in the third year. There is no evidence to support a promotion was afforded by not processed. d. There is no evidence to show the Soldier suffered an error or an injustice. 6. The applicant was provided a copy of this advisory opinion. She states, she failed to tell her story on why she believes there was a miscarriage of justice on the behalf of NGB's promotion process. As she reflects back on several incidents, she should have filed an Inspector General complaint against NGB Acquisitions Promotion Board and Acquisition Division. She addressed each bullet of the advisory as follows: a. LTC X was the first to carry out a miscarriage of justice. The Officer Evaluation Reports (OER) were top blocked based on the number of transactions the Officer completed instead of the quality of work the Officer performed. If she did not have any errors on her contracts, it was counted as one transaction. If she had to do a modification because of errors on her contracts each transaction was counted. It was like getting rewarded for making errors. LTC X instructed the Soldiers this is the way he was making his decision to get top blocked on their evaluations. Because of her lack of errors she was not top blocked. The person with the most errors was top blocked and eventually made LTC. b. She asks the Board to review the individuals who were promoted. A soldier that was promoted was only certified on paper as an Acquisition Officer. The Soldier was moved to the Finance Division where he was passed over for promotion several times. He had never performed in the Acquisition field but was more qualified then herself. He was promoted to the rank of LTC in FY 2015. One of the other male Soldiers on the list wasn't certified and managed to be ranked higher than her, she would like that explained to her. This was the year a Soldier who was only qualified on paper was also promoted. c. The Soldier was told by LTC X she would not be promoted because she was working half days and the LTC position required a person to be on the site full-time. This was a devastating blow to the applicant because she felt that regardless of how she performed her ranking on the board would always be below the number of vouchers NGB would receive. d. She was not selected the third year pending medical discharge. She was qualified with all the requirements to be eligible for promotion. LTC X brought her into his office and stated she could not be promoted because of how long she was at work. If she were able to get into her military email account, she would be able to show the Board email transactions between herself and an LTC in Minnesota who was in the contracting division. e. It took two years for her request to be completed. There is written evidence if the Board takes the time to look. She understands this is an emotional letter but she has no reason to lie. She is retired and receives her retirement plus disability. She can only hope when the Board asks COL X if he suggested she would not be promoted because of medical issues that he is honest. f. She knows there were other issues and she was extremely vocal about them to Colonel X . She was the only one person, and everyone else was too afraid, to say anything. She was not afraid. She asks if the Board is really going to investigate this matter than investigate it and not just sit behind a desk, wait several months, and then write a report that could have been done in two days. 7. AR 15-185 (ABCMR) states 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. 8. The ABCMR may correct an officer’s date of rank/effective date of rank when a proper appointment has already occurred. a. 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer…appointed to a higher grade...if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes “unusual circumstances” will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. Memorandum (Limitation on the Authority of Military Department correction Boards) from the Under Secretary of Defense, dated 10 February 2015 states only the President appoints officers of the United States above the grade of Captain and Reserve officers above the grade of Lieutenant Colonel. Only the Secretary of Defense may appoint all other officers in accordance with the Appointment Clause of the United States Constitution. BOARD DISCUSSION: Based upon all documents submitted by the applicant and that found within the military service record, to include enclosed NGB advisory opinion, the Board found the advisory opinion’s findings that no error or injustice was present compelling. The Board did see that the applicant relied to those findings, but in the Board’s opinion, the applicant’s reply failed to show an error in the advisory findings. For that reason, the Board recommended denying the applicant’s request. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant X X X: Deny 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. 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. REFERENCES: 1. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; 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 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve. a. Paragraph 2–10 provides, mandatory selection boards will convene each year. These boards will consider ARNGUS and USAR officers on the reserve active - status list (RASL) for promotion to LTC. These boards will consider officers for promotion without regard to vacancies in the next higher grade. b. Paragraph 3–3 provides, selection boards will be provided a promotion consideration file (PCF) for each eligible officer. The PCF will contain the following items: * Officer evaluation reports * Academic evaluation reports * Commendatory information * Disciplinary information * An officer record brief * A photograph taken within the past 5 years, the officer’s signature, height, and weight must be entered on the back of the photograph. * Communications to the board president * other * Physical evaluation forms (SF Form 93 (Report of Medical History) and DD Form 2808 (Report of Medical Examination)) * Derogatory information will not be presented unless it is processed per AR 600-37 c. Paragraph 3-4b, provides, each ARNGUS and USAR officer in the zone of consideration for mandatory selection board consideration will be notified. This notice will be dispatched at least 90 days before the convening date of the board, and will include the date on which the board is to convene and the name and date of rank of both the junior officer and senior officer in the primary zone as of the date of the notice. Officers will be directed to: * Review their records and submit copies of missing documents or other corrections to: for ARNGUS, the adjutant general, or, for USAR, the CDR, HRC, Chief, Office of Promotions (RC) * Ensure an official photograph is included in their PCF d. Paragraph 3-14 provides, the selection board will base their recommendations for promotion on impartial consideration of all personnel being considered. The board will determine those who are fully qualified and best qualified. To select those who are best qualified, the board must first determine which members of a group are fully qualified. The best qualified are then selected from that group. 3. Memorandum (Limitation on the Authority of Military Department Correction Boards) from the Under Secretary of Defense, dated 10 February 2015 states under the Appointments Clause of the United States Constitution, the President appoints Officers of the United States by and with the advice and consent of Senate unless by law congress has vested appointment authority for inferior officers in the President alone, in Courts of Law, or in the Heads of Departments. Accordingly, only the President may appoint Regular officers above the grade of 0-3 and Reserve officers above the grade of O-5 following Senate Confirmation. Only the Secretary of Defense may appoint all other officers because Congress has vested such appointment authority in the President alone, and the President has assigned that function to the Secretary of Defense. ABCMR Record of Proceedings (cont) AR20160014364 2