ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160014689 APPLICANT REQUESTS: Through counsel correction of his DD Form 214 (Certificate of Discharge or Release from Active Duty) to show he was medically retired in the rank/grade of major (MAJ)/O-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memo from Counsel * Military Times email article, Chaplains selected for promotion to MAJ * Navy Personnel Forms 1610/2 (Fitness Report and Counseling Record) * DA Forms 67-9 (Officer Evaluation Report) * 3 x DD Forms 214: 1993, 2010, 2015 * 19 March 2014, Memorandum, Subject: Administrative Reprimand and allied documents * 23 December 2014, DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * 10 March 2015, Memorandum, Subject: Delay of Promotion and Referral to Promotion Review Board (PRB) * 24 August 2015, email correspondence from HRC to applicant on PRB * 1 March 2016, DA Form 199 finding him physically unfit and 100% rating * Commendatory documents * Excerpt, Lone Survivor * Photographs FACTS: 1. The applicant states through counsel in pertinent part and essentially: * in February 2014, the applicant was a Chaplain and captain (CPT) in the Army and was recommended for promotion to MAJ * soon after his recommendation for promotion he was investigated by his command because of a conversation he had through text messages with a single middle-aged woman * in March 2014, after the applicant’s command completed the investigation, the Senior Commander, Fort Campbell, KY issued the applicant a General Officer Memorandum of Record (GOMOR), the applicant submitted a rebuttal apologizing for his conduct and the GOMOR was placed in his official file * an officer elimination board was also directed to determine whether the applicant should be eliminated from the Army for misconduct, the imposing officer also directed a health assessment and behavioral health evaluation to determine whether Medical Evaluation Board (MEB) proceedings should be conducted * on 26 June 2014, an officer elimination board was held * as of the date of the elimination board an MEB had already determined the applicant was medically unfit for continued service; the elimination board recommended the applicant remain on active duty to allow him to continue towards medical separation * on 23 December 2014, a PEB convened and found the applicant physically unfit for continued service with a combined disability rating of 80% and placement on the Temporary Disability Retirement List (TDRL) * on 10 March 2015, the U.S. Army Human Resources Command (HRC) notified the applicant his November 2013 recommendation for promotion to MAJ was being delayed and his records were being referred to a PRB * upon notification the applicant indicated he intended to submit rebuttal matters, he contacted HRC about the process and was told by Ms. X the PRB would not review his file because he was within weeks of a medical separation and was told to address the matter through the ABCMR * on 29 April 2015, he was medically separated from the Army at the rank of CPT, and as far as the applicant understands his promotion for MAJ was never reviewed by the PRB * on 1 March 2016, a PEB found the applicant physically unfit and recommended a combined rating of 100% and he be placed on the Permanent Disability Retirement List (PDRL) 2. A review of the applicant’s service records show the following on: * 1 February 2010 – after prior enlisted and commissioned service in the U.S. Navy (USN), he was appointed as a Regular Army Chaplain in the rank of CPT and executed an oath of office * 19 March 2014 – reprimanded by the Senior Commander, Fort Campbell, KY for conduct unbecoming an officer for soliciting indecent sexual conduct from a civilian female * 31 March 2014 – the applicant submitted a rebuttal to the GOMOR apologizing for his misconduct * 8 April 2014 – the imposing officer after reviewing the rebuttal, ordered the GOMOR filed in the applicant’s Army Military Human Resource Record (AMHRR) * 23 December 2014 – an informal PEB convened and found the applicant physically unfit with a recommended rating of 80% and his disposition be placement on the TDRL with reexamination in September 2015 * 11 February 2015 – Orders Number 042-0624, issued by Headquarters, 101st Airborne Division and Fort Campbell, placed the applicant on the TDRL in the rank of MAJ, effective 30 April 2015 * 12 February 2015 – Orders Number 043-0615, issued by Headquarters, 101st Airborne Division and Fort Campbell, amended Orders Number 042-0624 insomuch as changing his retired rank from MAJ to CPT * 1 March 2016 – an informal PEB convened and found the applicant physically unfit and recommended a rating of 100% and his disposition be PDRL * 23 March 2016 – Orders Number D083-03, issued by the U.S. Army Physical Disability Agency, removed the applicant from the TDRL and permanently retired him in the rank of CPT * his record is void of orders promoting him to the rank of MAJ, likewise, it is void of a PRB packet 3. The applicant provides through counsel: * Military Times web page showing the applicants recommendation and sequence number for promotion to MAJ * NAVPERS Forms 1610/2 showing his superior evaluations in the USN as both enlisted and officer * DA Forms 67-9 showing his exemplary performance as a Chaplain * DD Forms 214 1993 and 2010 when he served in the U.S. Navy and was honorably discharged * 19 March 2014, Memorandum, Subject: Administrative Reprimand and allied documents * 10 March 2015 Memorandum, Subject: Delay of Promotion and Referral to a PRB, wherein the applicant was informed his records were being referred to a PRB based on the GOMOR in his AMHRR and he would have 14 days to respond * 24 August 2015, email between the applicant and Ms. X- from HRC wherein she advised him not to apply for the PRB because it would be stopped and advised to apply for the ABCMR when he retired, and cited Title 10, USC, section 629(d) on how his name was administratively removed from the list of officers recommended for promotion * commendatory documents attesting to his exemplary performance in the USN and Army * excerpt, Lone Survivor with emphasis on his role during the recovery operations of a Navy special operator * personal photographs of the applicant and his family * DD Form 214 showing he was retired from the Army by reason of disability, temporary (enhanced) in the rank of CPT 4. On 20 July 2018, HRC reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Officer Promotions Special Actions Branch opined that: a. Based on a review of their records and the information provided, they find the applicant’s request for a continuance of his PRB may have merit in part. As noted in the documents provided, former employee Ms. X-'s reply to him notes, Title 10 USC, section 629(d) removal from a list of officers recommended for promotion administrative removal - under regulations prescribed by the Secretary concerned, if an officer on the active-duty list is discharged or dropped from the rolls or transferred to a retired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer's name shall be administratively removed from the list of officers recommended for promotion by a selection board. b. The applicant’s command received his formal PRB notification initially on 10 March 2015 and he himself directly on 26 March 2015; during this time the notification clearly stated the entire process would take between 8 and 12 months to complete, even so, he did not sign his intent acknowledgment until 15 April 2015, well aware of the upcoming 29 April 2015 separation date. They have no record of him ever being promoted to the rank of MAJ nor that he ever submitted a rebuttal (due 9 April 2015) to their office prior to him separating. There was no possibility whereby HRC could have boarded and receive the Secretary of the Army's decision within such a short time prior to his separation. c. They can only speculate that Ms. X response in kind was based on his admission of his separation/retirement from military service without clarifying its status as temporary or permanent. Title 10 USC, section 629(d), does not list a divide for separation or retirement status in class group as temporary or permanent. At this time, any further action to restart a PRB can only occur as an ABCMR directive. 5. On 7 August 2018, the applicant through counsel submitted a rebuttal that states: a. Much of the response from HRC was the same as what the applicant has shown in his petition to the ABCMR. Specifically, the GOMOR he received triggered a PRB. The applicant contacted HRC to ask how to submit rebuttal matters but was told, by Ms. XX at HRC, the PRB would not review his file because he was scheduled for medical separation in a matter of weeks. He was instructed the proper way to address the matter was through the ABCMR after he was discharged. HRC’s response also contains two curious comments. (1) HRC notes that 3-weeks elapsed from when the applicant received his formal PRB notification on 26 March 2015 and when he signed his intent acknowledgment on 15 April 2015. Yet HRC in no way explains how that is relevant. In fact, its letter even notes the entire PRB process took 8 to 12 months-seemingly far too long for 3-weeks to have made any difference given the applicant was medically separated 2-weeks later, on 29 April 2015. Even HRC's response does not say that those 3-weeks would have made a difference. (2) HRC says it "can only speculate that Ms. X-‘s response in kind was based on the applicant’s admission of his separation/retirement from military status without clarifying its status as temporary or permanent." Yet HRC’s response in no way explains why any possible confusion, if it even occurred, was relevant. It does not explain how the difference between temporary retirement or permanent retirement could have impacted Ms. X direction to the applicant that he wait to address the matter with the ABCMR, or how it would have changed the short timeline that HRC says prevented a PRB from occurring. b. Overall, nearly all of HRC's response aligns with what counsel and the applicant have already submitted. The two portions of its response explained above, and its overall statement that the applicant 's request "may have merit in part," as opposed to simply saying he is correct, seem to be HRC attempting to avoid complete responsibility. Nevertheless, the facts speak for themselves. HRC told the applicant in 2015, and says again in its recent comments, the issue of his promotion is for the ABCMR to address. 6. Army Regulation (AR) 600-8-29 (Officer Promotions) paragraph 8-1 states, the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (Title 10 USC, section 629(a)). PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. a. Headquarters Department of the Army (HQDA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for Memorandum of Reprimand being placed in the official file. b. 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. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation. (Fourteen days from the date of receipt of the information is considered a reasonable opportunity, unless good cause is shown for extending the time.) 7. Title 10, USC, section 1372, states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. 8. Title 10 USC, section 629(d) states, if an officer on the active-duty list is transferred to a retired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by a selection board BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant and his counsel’s contentions were carefully considered. Based upon the preponderance of evidence, the Board agreed the applicant was correctly removed from a promotion list to Major and was not in a promotable status when he was permanently retired. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 600-8-29 (Officer Promotions) paragraph 8-1 states, the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (Title 10 USC, section 629(a)). PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. a. HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for Memorandum of Reprimand being placed in the official file. b. 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. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation. (Fourteen days from the date of receipt of the information is considered a reasonable opportunity, unless good cause is shown for extending the time.) 3. Title 10, USC, section 1372, states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. 4. Title 10 USC, section 629(d) states, if an officer on the active-duty list is transferred to a retired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by a selection board. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014689 6 1