145ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20160018936 APPLICANT REQUESTS: in effect, to be reinstated to the Colonel (COL) promotion list and be promoted to the rank of COL, with retroactive effect. Also a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney letter and statement, dated 8 December 2016 * Attorney letter with letter of endorsement from General M.A.M., 23 January 2017 * Freedom of Information Act (FOIA) request letter from attorney, dated 22 October 2015 * Letter from Army Human Resources Command (AHRC), dated 9 December 2015 * Documents pertaining to the Promotion Review Board (PRB) of the applicant between May and October of 2013 * Letter from FOIA Division, dated 12 January 2016 * Selection Board Instructions for the Fiscal Year (FY) 2014 COL, Maneuver, Fires and Effects (MFE), Centralized Selection List (CSL) Command and Key Billet Board * Letter from Office of the Deputy Chief of Staff G-1, dated 10 February 2016 * Further response to FOIA request documents relating to PRB convened between May and October 2013 * Letter from attorney to AHRC, dated 10 March 2016 along with AHRC letter to the applicant, dated 9 December 2015 * Letter from AHRC, dated 19 April 2016 * Documents pertaining to the PRB that convened between May and October of 2013 * Email notification attaching voicemail from A.S. of AHRC, dated 20 April 2016 with transcription of voicemail * Letter from attorney to AHRC, dated 20 April 2015 [2016] * Memorandum for record in reference to Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation into allegations involving 1-506th Infantry, dated 28 January 2009 * Inspector General (IG) investigation report DIH 10-8xxx Update, dated 28 August 2010 * IG investigation report DIG ##-#xxx#, dated 19 November 2010 * Synopsis of IG investigation report DIH 12-0xxx, dated 12 December 2012 * Officer Evaluation Report (OER) for period 9 February 2008 – 15 December 2008 * U.S. Army Criminal Investigation Command Memorandum: Criminal Investigation Division (CID) Final Report of Investigation SSI - 0197-2008-CID3xx-4xxx3 -5Y2E / 5C2B, 2 February 2009 * Letter from General. X__ X. X__, dated 23 October 2010 * Statement of MAJ (Major) X__ X. X__, dated 5 May 2011 * Statement of CPT (Captain) X__ X. X__, dated 20 May 2011 * Statement COL X__ X. X__, dated 23 May 2011 * Statement of CPT X__ X. X__, dated 22 May 2011 * Statement of MAJ X__ X. X__, dated 25 May 2011 * Statement of CPT X__ X. X__, dated 26 May 2011 * Statement of CPT X__ X. X__, Jr., dated 28 May 2011 * Statement of CPT X. X__ X__, dated 28 May 2011 * Statement of SSG (Staff Sergeant) X__ X. X__, dated 30 May 2011 * Statement of LTC (Lieutenant Colonel) X__ X. X__, dated 30 May 2011 * Memorandum from AHRC reference PRB notification, dated 18 May 2011 * Email from X__ X. X__ to the applicant and others reference results of promotion selection boards are set to be released on 30 October 2012 (and attaching MILPER Message number 12-332), dated 23 October 2012 * Email from LTC X__ X__ reference selection for promotion to COL and attaching information briefing reference the Developmental Opportunities Module, dated 30 October 2012 * Email from X__ X__ reference record referred to a PRB, dated 23 April 2013 and attaching Report to Suspend Favorable Personnel Actions (FLAG), dated 18 December 2012, memorandum from X__ X. X__ reference Delay of promotion and referral to a PRB, dated 23 April 2013; and PRB frequently asked questions * AR 600-8-29 (Officer Promotions), paragraph 8-7 (Information Considered), dated 25 February 2005 * Army Directive 2010-10 (Enhancement of the Promotion Review Board Process), dated 3 December 2010 * Email from the applicant to X__ X__ attaching the first of two parts of rebuttal package for PRB, dated 9 May 2013 (attachment included personal statement to PRB, dated 8 May 2013 * Email attaching part two of rebuttal package for PRB (including statements from 11 personnel, memorandum reference AR 15-6 investigation into allegations involving 1-506th Infantry; and Captain X__ X. X__ OER * Email from X__ X__ to applicant acknowledging receipt of two emails containing rebuttal package for PRB, dated 9 May 2013 * Memorandum for record from X__ X. X__, AHRC, reference PRB results, dated 9 December 2013 FACTS: 1. The applicant states via counsel, the PRB, which reviewed the promotion status of the applicant in the fourth quarter of 2013, apparently committed two procedural errors. First, the PRB failed to review the applicant’s timely submitted rebuttal statement because it evidently was not included in his PRB file, in violation of AR 600-8-29, paragraph 8-7. Second the PRB failed to review the base IG investigation report from which adverse information was drawn because the base report evidently was not included in the applicant’s PRB file, in violation of Army Directive 2010-10. In addition to these two procedural errors, the PRB's decision to remove the applicant from the promotion list was clearly an error. a. The Rebuttal Packet, which the Army acknowledges was the applicant’s "only opportunity to speak on [his own] behalf or to point out why [he] should be retained on the promotion list," was a critically important collection of information regarding the applicant’s suitability for promotion. Its absence from the PRB's record on review betrays a gross administrative oversight. Among other statements from high-ranking Soldiers, all of whom uniformly discredited the results of the IG investigations that triggered the PRB, then-MG X__ X__ noted the applicant is an officer with exceptional leadership who has handled an intense investigation with rock-solid integrity and honor, and consummate professionalism and dignity. MG X__ went on to note that he “would not hesitate to have [his] son or daughter serve under [the applicant’s] command in the most challenging combat situations.” These are just some of the many statements that the PRB apparently failed to consider. b. Had the PRB had access to all of the relevant explanatory and exculpatory records, the applicant would have remained on the promotion list and would therefore have received the promotion he earned through years of dedicated service and proven leadership. c. The applicant’s counsel argues the PRB did not comply with chapter 8 of AR 600- 8-29, paragraph 8-7, which requires the PRB to consider any information provided by an officer in rebuttal to adverse information that triggers PRB review of the officer’s promotion status. Counsel also argues was the PRB's apparent failure to comply with Army Directive 2010-10's provisions, which require that in all cases referred to a PRB on the basis of adverse information from a Department of the Army Inspector General (DAIG) investigation, the officer's PRB file shall contain a complete copy of the base report from which the adverse information is drawn. A review of the applicant’s PRB file, obtained through multiple overlapping FOIA requests, reveals that the relevant base report was not part of his PRB file, in clear violation of Army Directive 2010-10's requirements. d. Counsel lays out reasons that led to the applicant’s decisions while in Afghanistan and eventually claims the applicant’s actions towards the subordinates within his command were reasons that led to false claims and disdain towards the applicant. He discusses the applicant’s professional history, mock executions and cover up in August of 2008, four investigations from 2009-2012, the rebuttal packet, request for information, and again failure of the applicant’s rebuttal packet to be a part of his PRB, along with failed consideration of the investigation base reports to include procedural errors based on hopeless investigations that were flawed. 2. The applicant/counsel provides: a. Attorney letter and statement, dated 8 December 2016 addressed above. b. Attorney letter, dated 23 January 2017 supplementing the application with letter of endorsement from General M.A.M., dated 10 January 2017 to extend his full support for promotion of the applicant to COL. Also stating the applicant did what was right at the time and did what is expected from a battalion commander and initiated an investigation into allegations of a war crime which later proved true. The subjects in that investigation did not like it and subsequently set out to destroy the applicant’s reputation and promotion potential. c. Index of Appendix documents pertaining to PRB. Correspondence to AHRC, Department of the Army, and Army G-1 obtaining documents and evidence. AR 15-6 investigation into allegations involving 1-506th Infantry memorandum, dated 28 January 2009. IG investigation reports (DIH 10-8077), dated 28 August and (DIG 11-70003), dated 19 November 2010 as well as the synopsis of IG investigation report (DIH 12- 0530), dated 12 December 2012. Several statements of support 3. A review of the applicant’s service records shows the following: a. He was appointed as a commissioned officer on 1 June 1989. He served in a variety of stateside or overseas assignments and he was promoted to LTC on 1 June 2006. b. In a removal from promotion list packet entails the following: (1) On 28 January 2009, an AR 15-6 Investigation into allegations involving 1- 506th Infantry concluded with only one of the allegations made in the anonymous letter had any merit. The recommendation was although the mission was not properly planned, and a proper investigation was not done at the time, no further investigation is required. (2) A memorandum for PRB notification, dated 18 May 2011, showed he was selected for promotion to COL in fiscal year (FY) 2010. During post board screening his name was selected due to being the subject of substantive derogatory information. His records were forwarded to a PRB. He chose to submit a rebuttal for consideration. He did not receive the notification until late on 20 May 2011. (3) On 13 June 2011, the applicant submitted his rebuttal to the PRB. It included a personal statement in which he pled his case to be retained on the promotion list. He expanded his responses to allegations to include the IG investigation being incomplete, the credibility of key IG witnesses were questionable, key IG witnesses spread the rumors and therefore are the responsible parties for creating the misperceptions, his actions with CPT X__ did not lead to perceptions of inappropriate behavior nor his actions with SGT X__, he did not conduct himself in a manner unbecoming an officer and a gentleman, he met the Central Command’s policy for food safety, and remarked on the importance of appropriate relationships with women as an Army leader. He also included recent a performance summary with an officer record brief, summary of recent senior rater comments, recent OERs, and selected comments from subordinate commanders and leaders. Eight statements from character witnesses endorsing him to be retained on the promotion list. Lastly, he submitted material witness statement over 20 other personnel in support of his command or mission. c. Memorandum for the Secretary of the Army, dated 23 August 2011 to consider the case of the applicant being referred. The recommendation stated after reviewing his overall record, a majority of the members of the board recommend that the applicant be removed from the FY 2010 (FY10) Colonel (COL), Army (Maneuver, Fires & Effects (MTE), Operations Support (OS), Force Sustainment (FS) Army Promotion Selection List. d. Memorandum for Deputy Chief of Staff, G-1, dated 7 December 2011 directed immediate removal of the applicant from the FY10 COL, Army, Maneuver, Fires & Effects, Promotion Selection List, UP (under the provisions) of 10 U.S.C. § 629 (a), Executive Order 12396, and AR 600-8-29, paragraph 8-1b. e. On 6 January 2012, AHRC sent the applicant a memorandum that notified him of his removal from the promotion list after a PRB. f. On 6 December 2013, Memorandum for Deputy Chief of Staff, G-1, directed immediate removal of the applicant from the FY12 COL, Army, Maneuver, Fires & Effects, Promotion Selection List, UP (under the provisions) of 10 U.S.C. § 629 (a), Executive Order 12396, and AR 600-8-29, paragraph 8-1b. g. On 9 December 2013, AHRC sent the applicant a memorandum that notified him of his removal from the promotion list after a PRB. h. On 31 July 2014, he was honorably retired in the rank of LTC/O-5. 4. On 28 August 2019, AHRC provided an advisory opinion on this case and concluded the following: a. Based on a review of the records and the information provided, they found that the applicant’s request does not have merit. He went through two PRBs, for his FY10 COL Promotion Selection Board (PSB) and for his FY12 COL PSB, and was removed by the Secretary of the Army both times. b. For both PRBs, the applicant was withheld from the scroll and referred to a PRB based on US Army Inspector General Agency (Case DIG 11-7xxx3) and DoD Hotline Completion Report DIH 10-8xxx, dated 28 August 2010. US Army Inspector General Agency (Case DIG 11-7xxx3) substantiates four of ten allegations and one additional founded issue that then, the applicant: * Improperly failed to have veterinary personnel conduct inspections of a restaurant operating on Forward Operating Base (FOB) Airborne in violation of MOD Nine to US Central Command (CENTCOM) Individual Protection and individual/Unit Deployment Policy, dated 10 September 2008 * Participated in an inappropriate relationship with a subordinate Army officer, and in violation of AR 600-20, (Army Command Policy) * Participated in an inappropriate relationship with an enlisted Soldier in violation of AR 600-20 * Engaged in conduct unbecoming an officer and gentleman in violation of Article 133, Conduct Unbecoming an Officer and Gentleman, Uniform Code of Military Justice (UCMJ) * Was derelict in the performance of his duties by allowing an individual to accompany the deputy Governor of Wardak, Afghanistan to Beshoud, Afghanistan, on a Humanitarian Assistance (HM) mission alone in November 2008 c. DoD Hotline Completion Report DIH 10-8xxx, dated 28 August 2010, concludes that an allegation that the applicant participated in an inappropriate relationship with a subordinate Army officer in violation of AR 600-20, Army Command Policy, was substantiated. d. The applicant’s claim that the PRB did not review his rebuttal is unfounded. His 101 page rebuttal packet submitted on 13 June 2011 was seen by the FY10 COL PSB PRB members and the Secretary of the Army before the final promotion decision was made. His 27 page rebuttal packet dated 8 May 2013 was seen by the FY12 COL PSB PRB members and the Secretary of the Army before the second final promotion decision was made. e. The applicant’s claim that the PRB did not review the base IG investigation report is unfounded as well. Both US Army Inspector General Agency (Case DIG ##-#xxx#) and DoD Hotline Completion Report DIH 10-8xxx, dated 28 August 2010 were requested and received from The Office of The Inspector General of the Army (OTIG) and provided to the both PRBs as directed by the DCS, Army, G-1. f. There were no procedural errors in either PRB conducted on the applicant. AHRC has no authority to overturn the decision of the Secretary of the Army to remove an officer from a promotion list. g. If DAIG has a new outcome of the two investigations that reverse the substantiated findings from US Army Inspector General Agency (Case DIG ##-#xxx#) and DoD Hotline Completion Report DIH 10-8xxx, that would be important to verify before making a final ruling on this case. 5. On 16 September 2019, the applicant was provided with a copy of the advisory opinion from the AHRC and provided an opportunity to submit comments/rebuttal. He did not respond as of 16 October 2019. 6. By law, (Title 10, U.S. Code, section 624), when the report of a selection board convened under section 611(a) of this title is approved by the President, the Secretary of the military department concerned shall place the names of all officers approved for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of the seniority of such officers on the active- duty list or based on particular merit, as determined by the promotion board. A promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence. With some exceptions, officers on a promotion list for a competitive category shall be promoted to the next higher grade when additional officers in that grade and competitive category are needed. Promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. 7. By law, Title 10, U.S. Code Section 629 (a), Executive Order 12396 delegate certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, the authority vested in the President by Section 629(a) of Title 10 of the United States Code, to remove the name of any officer from a promotion list to any grade below commodore or brigadier general. 8. By regulation (AR 15-185) (ABCMR), 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. 9. By regulation (AR 600-8-29), prescribes the promotion of commissioned and warrant officers: a. Before the selection board report is approved by the President or his designee, the name of an officer in a grade above second lieutenant, recommended for promotion by a selection board, may be removed from the report of the board only by the President. A report of a selection board exists after a promotion board issues a signed board report. The board report becomes a promotion list after approval by the President or his designee. 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. b. 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 (10 USC 629(a)). This authority has been delegated to the SA. PRB are used to advise the SA 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. In such instances, a PRB may also be conducted when an officer’s name appears on a report of a selection board, although the SA’s final decision or recommendation under paragraph 8–8, below, may not be made until the report is approved by the President or his authorized designee. An officer, in a grade above second lieutenant, is considered to be on a promotion list when the officer’s name appears on a report of a promotion selection board which has been approved by the President or his authorized designee. c. An officer will be referred to a PEB for a variety of reasons, including having derogatory information received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.. For officers selected for promotion to COL, HQDA will conduct a post-board screening of the restricted fiche of recommended officers and information in other official files such as those maintained by the Criminal Investigative Command and the DA Inspector General. A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, or the DCS, G-1’s designee, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB. d. The PRB’s recommendation is only advisory to the SA. In cases involving promotion to the grade of COL or below, the board’s report will be forwarded to the SA who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the DCS, G-1, or direct other appropriate action. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, the Board found relief was not warranted. Based upon the applicant’s raised basis for granting his request being unsupported by the facts as reflected in the HRC advisory opinion, and the applicant failing to provide any rebuttal to those findings by HRC, the Board concluded there was insufficient evidence or an error or injustice which would warrant making a correction to the military record of the applicant. 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. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. Title 10, U.S. Code, section 624 states (in selected sub-paragraphs): a. (1) When the report of a selection board convened under section 611(a) of this title is approved by the President, the Secretary of the military department concerned shall place the names of all officers approved for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of the seniority of such officers on the active-duty list or based on particular merit, as determined by the promotion board. A promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence. b. (2) Except as provided in subsection (d), officers on a promotion list for a competitive category shall be promoted to the next higher grade when additional officers in that grade and competitive category are needed. Promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. 3. Title 10, U.S. Code, section 628, Sub-paragraph (d), Appointment of Persons Selected by Boards, states (in selected sub-paragraphs): a. (1) If the report of an SSB convened under this section, as approved by the President, recommends for promotion to the next higher grade a person whose name was referred to it for consideration, that person shall, as soon as practicable, be appointed to that grade in accordance with subsections (b), (c), and (d) of section 624 of this title. b. (2) A person who is appointed to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the active-duty list as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him. 4. Title 10, U.S. Code Section 629 Sub-paragraph (a), Executive Order 12396 delegate certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, the authority vested in the President by Section 629(a) of Title 10 of the United States Code, to remove the name of any officer from a promotion list to any grade below commodore or brigadier general. 5. Army Regulation 600-8-29 (Officer Promotions) prescribes the promotion of commissioned and warrant officers. a. If an officer is Flagged for APFT failure or non-compliance with AR 600–9 (The Army Weight Control Program), DA Form 268 will be closed by the initiating commander, unless the officer is being recommended for consideration by a promotion review board in accordance with chapter 8 of this regulation. b. Before the selection board report is approved by the President or his designee, the name of an officer in a grade above second lieutenant, recommended for promotion by a selection board, may be removed from the report of the board only by the President. A report of a selection board exists after a promotion board issues a signed board report. The board report becomes a promotion list after approval by the President or his designee. 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. c. 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 (10 USC 629(a)). This authority has been delegated to the SA. PRB are used to advise the SA 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. In such instances, a PRB may also be conducted when an officer’s name appears on a report of a selection board, although the SA’s final decision or recommendation under paragraph 8–8, below, may not be made until the report is approved by the President or his authorized designee. An officer, in a grade above second lieutenant, is considered to be on a promotion list when the officer’s name appears on a report of a promotion selection board which has been approved by the President or his authorized designee. d. An officer will be referred to a PRB for a variety of reasons, including having derogatory information received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.. For officers selected for promotion to COL, HQDA will conduct a post-board screening of the restricted fiche of recommended officers and information in other official files such as those maintained by the Criminal Investigative Command and the DA Inspector General. A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, or the DCS, G-1’s designee, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB. e. The PRB’s recommendation is only advisory to the SA. In cases involving promotion to the grade of COL or below, the board’s report will be forwarded to the SA who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the DCS, G-1, or direct other appropriate action. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160018936 9 1