IN THE CASE OF: BOARD DATE: 8 November 2018 DOCKET NUMBER: AR20170011203 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 8 November 2018 DOCKET NUMBER: AR20170011203 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests correction of his records to show promotion to lieutenant colonel (LTC) with a date of rank (DOR) of 17 February 2011 and an effective date of 2 April 2013. 2. The applicant states he was never informed or provided an opportunity for promotion to LTC per Department of the Army (DA) Personnel Policy Guidance (PPG) dated 1 July 2009 (updated on 9 August 2013) for Army National Guard (ARNG) Mandatory Promotion Board without delay or declination, he exceeded maximum time-in-grade (TIG), and he was a mobilized officer on an approved DA promotion list. He met with the Chief of Staff (COS) and Joint COS (JCOS) who supported his request and forwarded it to the Career Management Board (CMB) for redress within the state. The CMB denied his request because they did not want to set a precedent to resolve an institutional injustice within the ARNG (NCARNG). The CMB did not publish notes for their decision. He was informed of this decision and the context of the meeting notes by the on 17 July 2017. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * U.S. Army Human Resources Command (HRC), memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 1 April 2013 * DD Form 214, period ending 7 March 2014 * DA PPG for Overseas Contingency Operations, dated 1 July 2009 (updated 9 August 2013) * National Guard Bureau (NGB), memorandum for The Adjutant Generals, Subject: Promotion of Mobilized ARNG Officers who are Selected for Promotion by a DA Mandatory Promotion Board * DA Form 1559 (Inspector General Action Request) * Joint Force Headquarters (JFH) NCARNG IG letter, dated 19 July 2017 * emails threads 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense (DoD) records and systems: * Official Military Personnel File and Military Personnel Records Jacket * DA Forms 214 * DA Form 4037 (Officer Record Brief) * Biographical Summary * JFH NCARNG memorandum, Subject: Selection for Retention Under the Provisions of National Guard Regulation (NGR) 635-102 * NGB advisory opinion REFERENCES: 1. Title 10 U.S. Code section 14304(a)(1) states officers described in paragraph (3) shall be placed in the promotion zone for that officer’s grade and competitive category, and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) (promotion boards) of this title, far enough in advance of completing the years of service in grade specified in the following table so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. The table shows 7-years as the maximum years of service in the grade of major (MAJ)/O-4. 2. Title 10 U.S. Code section 14304(a)(3) states that paragraph (1) applies to an officer who is on the reserve active-status list of the Army and who holds a permanent appointment in the grade of first lieutenant, captain, or major as a reserve of the Army, while holding that appointment, has not been considered by a selection board convened under section 14101(a) or 14502 of this title for promotion to the next higher grade. 3. Title 10 U.S. Code section 14304(b) states an officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade specified in subsection (a). The preceding sentence is subject to the limitations of section 12011 of this title. 4. Title 10 U.S. Code section 14104 (Nondisclosure of board proceedings) states the proceedings of a selection board convened under section 14101 or 14502 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. 5. DA PPG for Overseas Contingency Operations, dated 1 July 2009, consolidates Theater and DA PPGs into one document in support of contingency operations. Paragraph 13-10 (Commissioned Officer Promotions) provides the Army’s existing policy for promoting Reserve Component (RC) officers to the ranks of captain through colonel (COL) in the Selected Reserve (includes both the ARNG and Army Reserve and the Individual Ready Reserves (IRR). a. Time-in-Grade requirement states that by law, all RC officers, mobilized or non-mobilized, whose promotions are not voluntarily delayed, involuntarily delayed, or declined, must be promoted on the date on which they complete the maximum TIG: five years for first lieutenants, and seven years for captains and majors. Mobilized officers promoted upon reaching their maximum time-in-grade will be transferred immediately to the IRR upon demobilization. b. Mobilized officers and officers on active duty operational support (ADOS) states: (1) Officers mobilized under the provisions (UP) of Title 10 U.S. Code (USC) section 12302 and officers other than Army Reserve officers on ADOS tours (UP Title 10 USC 12301(d)) may be matched against a vacant higher grade Selective Reserve (SELRES) position to be promoted. Upon release from active duty (REFRAD)/completion of the tour of active duty on which the officer is promoted, the officer will be assigned against that position within 180 days. If the officer, upon completing his or her current tour of active duty declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, then the officer - whether a member of the USAR or ARNG - shall be transferred immediately to the IRR unless assigned to some higher grade RC position within 180 days after completing his/her current tour of active duty. (2) In accordance with (IAW) Title 10 USC 14304(B) and 14316(b) and 14316(d), all RC officers who have been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion board, and who are on an approved promotion list (excluding PVB), shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade on the date on which the officer completes the maximum years of service as specified in Title 10 USC 14304(a), unless the officer has voluntarily delayed or declined promotion IAW Title 10 USC 14312(c). This also applies to Sanctuary (12686) officers. c. Active Guard Reserve (AGR) managers are responsible for briefing AGR Soldiers on the impact that promotions received while mobilized could have upon the Soldiers’ re-accession into the AGR program. The AGR program has assignment and controlled grade restrictions. While mobilized, AGR Soldiers will not be promoted over-grade in the mobilized MTOE position. States will not be authorized additional controlled grades solely for the purpose of reassessing into the AGR program Soldiers who were promoted while mobilized. d. Mobilized Army National Guard (M-Day and AGR) officers who are on an approved mandatory selection board promotion list may be promoted immediately when appointed in the State against a vacant position of the higher grade in a federally recognized unit in the National Guard. All ARNG officers promoted under the provisions of this new policy must be assigned to that position against which they are matched or appointed within 180-days after demobilization or transfer to the IRR. The promotion authority for ARNG officers and warrant officers ordered to active duty under the provisions of Title 10 USC 12302 or 12304 is the Chief, National Guard Bureau. Mobilized ARNG officers, regardless of the units to which they are assigned or mobilized, may be unit vacancy promoted against positions within their respective States provided they meet the qualifications outlined in NGR 600-100, Chapter 8-7. The position to which the officer will be assigned upon promotion must be a valid and vacant (no double-slotting) MTOE or TDA position of the higher grade. e. ARNG officers DA selected for promotion by a DA mandatory promotion board, but not promoted before being mobilized, or who were selected for promotion by a DA mandatory promotion board while mobilized, will have the following options: (1) Officers may be promoted immediately when appointed in the state against a position, of the higher grade, the officer will occupy upon demobilization. This policy applies only to DA mandatory promotion selectees; it does not apply to unit promotions or to officers selected for promotion to captain who do not possess a baccalaureate degree. While this is authorized the states are not required to promote individuals utilizing this procedure. Guidance on the procedures to be utilized for promotion of officers was published in the memorandum, NGB-ARH, Subject: Promotion of Mobilized Army National Guard Officers who are Selected for Promotion by a Department of the Army (DA) Mandatory Promotion Board, dated 30 January 2004. (2) Delay the promotion for up to three years for LTC and below. Upon approaching maximum time in grade (TIG) date while still mobilized, the officer can request a delay of promotion IAW AR 135-155, Chapter 4, Section IV. This may be to the officer‘s advantage if the officer‘s maximum TIG date is late in the period of mobilization, affording the officer a longer period to find a suitable position in the selected reserve. (3) Decline the promotion. At any time prior to or upon reaching maximum TIG date, the officer can choose to decline the promotion. Upon doing so, the officer’s name will be removed from the promotion list and the officer will be considered to have been non-selected for promotion. The provisions of AR 135- 155, paragraph 4-28, apply. (4) A mobilized officer who is selected for promotion by a DA mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on table 1. (The reference for this is section 14304(b) Title 10) 6. National Guard Regulation 600-5 (AGR Program Title 32, Full Time National Guard Duty (FTNGD) Management) sets policy and procedures for the management of ARNG Soldiers serving on FTNGD in the AGR Program. It provides National Guard Bureau policy and procedures for selection, utilization, career management, professional development, release from FTNGD, and the administration of ARNG Soldiers serving on FTNGD per 32 USC 502(f) for the purpose of organizing, administering, recruiting, instructing, or training the ARNG. It contains guidance that states AGR Soldiers will be released from the AGR Program without board action for the reasons stated below regardless of the expiration date of their current period of duty. Officers who reach their mandatory removal date (MRD) per NGR 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), unless an extension has been approved will be released from the AGR Program. Involuntary release procedures will not be used. For the following, the Human Resources Officer/AGR Manager will notify the Soldier, in writing, one year in advance of the appropriate date, that they will be released from active service and identify the effective date. The effective date should be the last day of the month in which the Soldier reaches the appropriate date. This will provide sufficient time to allow the Soldier to be properly processed for transition, either REFRAD or retirement. 7. Army Regulation 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. DISCUSSION: 1. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT) on 28 April 1990. When he submitted his application to the Board he was serving in the rank of MAJ in an AGR status (NCARNG). 2. Orders 315-830, issued by the NCARNG Office of TAG (NCOTAG) on 10 November 2004, promoted the applicant to MAJ with an effective date and DOR of 22 October 2004. 3. Special Orders Number 303 AR, issued by the National Guard Bureau on 7 December 2004, extended him Federal recognition for promotion to MAJ effective the same date. 4. Orders 014-059, issued by the NCOTAG on 21 January 2005, ordered the applicant to full-time National Guard duty (FTNGD) in AGR status on 29 January 2005, with an indefinite active duty commitment. 5. An HRC memorandum dated 28 October 2010, states the applicant a member of the ARNG was selected for promotion by a special selection board (2010SS10R) under the provisions of Title 10 paragraph 14502. His promotion eligibility date for LTC was 17 February 2011. The promotion eligibility date would be used in computing TIG for Reserve promotion to the next higher grade. The earliest DOR he could receive was the Presidential approval date of the criteria year (2009) selected under (30 December 2009). 6. On 29 February 2012, NCARNG notified the applicant that he was selected for retention in the NCARNG. 7. Orders 067-895, issued by the NCARNG Joint Force Headquarters on 8 March 2013, ordered the applicant to FTNGD in AGR status on 15 March 2013, with an indefinite active duty commitment. 8. On 1 April 2013, the applicant completed his required active service and mobilized in support of Multi-National Force and Observers (MNFO). His DD Form 214 showed the rank of MAJ with an effective date of 18 February 2004, and he had completed 8 years, 2 months, and 3 days of net active service this period. 9. Orders 063-110, issued by the NCOTAG on 4 March 2013, mobilized the applicant for a period not to exceed 400 days, in support of MNFO on 2 April 2013. 10. Orders 036-0017, issued by Joint Base McGuire-Dix-Lakehurst, released the applicant from active duty effective 13 February 2014. 11. Orders 049-185, issued by the NCOTAG on 18 February 2014, amended Orders 063-110 not to exceed 318 days. 12. A DD Form 214, shows the applicant was released from active duty in support of MNFO and transferred back to NCARNG AGR status on 7 March 2014. His rank was MAJ with an effective date of 18 February 2004, and he had completed 6 days and 11 months of net active service this period. 13. His record contains an ORB dated 8 January 2015, showing his date of projected mandatory retirement/removal as 30 April 2018. 14. On 17 July 2017, a DA Form 1559 shows the applicant submitted a request to the IG office for assistance with promotion to LTC, and to redress or correct a material injustice to his career based on gross manipulation of the NCARNG officer vacancy promotion system. 15. On 19 July 2017, the IG office notified him that the proper regulatory redress for his request was his chain of command. 16. On 30 April 2018, the applicant retired with sufficient service in the rank of MAJ. His DD Form 214 shows he was in an AGR status on the date of retirement and he had completed 4 years, 2 months and 17 days of net active service this period. He had 15 years, 9 months, and 29 days of total prior active service. 17. In support of his request, he provided email threads showing his desire and coordination to meet with the NCARNG COS and NCARNG Joint Force Headquarters COS. The applicant requested the opportunity to be promoted to LTC prior to retirement or upon retirement in lieu of filing a claim for redress to correct a material injustice based on a broad usage of the NCARNG’s officer vacancy promotion system to pre-select candidates for promotion through the NCARNG CMB over candidates that were qualified for promotion. He also provided extracts from the PPG for Overseas Contingency Operations and a copy of page one of NGB memorandum dated 30 January 2014, Subject: Promotion of Mobilized ARNG Officers who are Selected for Promotion by a DA Mandatory Promotion Board. 18. The National Guard Bureau provided an advisory for this case on 30 January 2018. The Chief, Personnel Policy Division reviewed the applicant’s case, supporting documentation, and recommended disapproval. He also stated: a. The NCARNG reported at the time of the applicant’s REFRAD from Title 10 active duty, NCARNG was two LTC/O-5 positions over its allowed LTC/O-5 controlled grade authorizations. The over-grade issue was resolved by 30 September 2014; however, there was an additional three (DA Selected) AGR Battalion Commander's waiting on LTC/O-5 authorizations who could not be promoted at the time due to lack of authorizations. Before, during, and even after his deployment, the applicant had been considered by the NCARNG Career Management Board (CMB) for positions at the LTC/O-5 level; however, he was not selected as the best qualified. All Soldiers who are DA selected are considered by the NCARNG CMB for available vacancies and will continue to be considered by the NCARNG CMB. b. PPG for Overseas Contingency Operations, chapter 13 (Personnel Management), discusses personnel procedures conducted throughout mobilization and deployment. Paragraph 13-10 (Commissioned Officer Promotions) states the Army's existing policy for promoting RC officers to the ranks of captain (CPT)/O-3 through COL/O-6. The AGR Program has assignment and controlled grade restrictions. Title 10, U.S. Code, section 12011, legally limits or sets control grade restrictions for the total number of RC officers serving on full-time RC duty at the end of any fiscal year in the ranks of MAJ/O-4, LTC/O-5, and COL/O-6. States will not be authorized additional controlled grades solely for the purpose of reaccessioning Soldiers into the AGR Program who were promoted while mobilized. c. Officers mobilized under the provisions of Title 10, U.S. Code, section 12302, and officers other than Army Reserve officers on active duty for operational support tours under the provisions of Title 10, U.S. Code, section 12301 (d), may be matched against a vacant higher grade Selected Reserve position to be promoted. Upon release from active duty/completion of the tour of active duty in which the officer is promoted, the officer will be assigned against that position within 180 days. If the officer declines or is unwilling or unable to occupy the position against which he/she was matched or appointed upon completion of his or her current tour of active duty, the officer (whether a member of the USAR or ARNG) shall be transferred immediately to the IRR unless assigned to some higher-graded Reserve Component (RC) position within 180 days after completing his/her current tour of active duty. Had the applicant been promoted, his discharge date would have been 7 September 2014, 180 days post deployment/REFRAD instead of April 2018 which will allow him to achieve 20 years of Title 32 active federal service for retirement. The alternate options to delay promotion would have been to decline the promotion or agree to release from AGR status and transfer to the IRR within 180 days of release, thus freeing him from the control grade limitations and allowing for the promotion at that time. d. The NCARNG addressed the applicant's statements concerning the failure to publish certain notes regarding his promotion in the minutes of the CMB meeting. The applicant’s request for a LTC/O-5 position for promotion prior to retirement was published on the minutes used by the NCARNG CMB for consideration, however, was not resolved in his favor and therefore considered a personal matter. Items of a personal nature that are not resolved favorably for the officer are not published in the general public minutes out of consideration for the officer but rather handled personally face to face with the officer. e. This advisory opinion was coordinated with the ARNG Officer Policy Branch. The NCARNG concurs with this recommendation. 19. On 20 February 2018, the applicant responded by email to the NGB advisory opinion and stated: a. It appears that the central theme of his case was about due process which was never addressed in the advisory opinion. The main thrust of his case is that this was not a vacancy promotion and the PPG clearly states under ARNG Mandatory Promotion Board "(d) A mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on Table 1. (The reference for this is section 14304(b) Title 10).” b. Nowhere in the advisory opinion is this mentioned or addressed. Additionally, this PPG policy has been used in the past for AGR officers to be promoted to the next higher grade. Furthermore, the advisory opinion does not even cite the proper regulatory guidance about the officer being promoted during mobilization; not after mobilization. Therefore, he was never afforded an (due process) opportunity for promotion through the PPG guidance and/or to make a decision about his career advancement on the basis of the provided regulatory guidance. c. In regards to the advisory opinion, NGB only utilized the opinion of NCARNG that all DA selected officers were sent to the NCARNG CMB to be reviewed for promotion to the next higher grade (Did NCARNG provide NGB the list for every CMB for all AGR officers that were considered for promotion?). This was not a factual representation of how the CMB and/or officer promotion system worked in NC during the period in question. The State of North Carolina did not review every qualified AGR officer for the purposes of promotion during the period in question and relied on the recommendations of the Chief of Staff for the career management of the AGR officer workforce (selective officers were submitted to the CMB). Furthermore, he was number one or in the top three on the COS's promotion list for the entire period in question and was deemed qualified for promotion through a DA selection process as well (not sure how NCARNG can claim that he was not qualified when his records were never submitted to the CMB to be compared against other officers being considered for promotion). However, he (and other officers who were similarly qualified as well) was bypassed repeatedly by officers who were neither DA selected and/or did not meet the minimum TIG requirements for promotion. d. During the period in question, the North Carolina CMB utilized the vacancy, promotion system to promote a large number of officers to "vacant positions" that effectively bypassed the DA selection ) process (on numerous occasions) which eventually led to an over-grade situation. The overuse/misuse of the vacancy promotion system created a pool of officers whose careers were effectively ended. This process created a surplus of promoted officers who were never going to be looked at or considered for promotion unless you fell within the COS criteria for promotion versus published policy or guidance (whatever that might be; never published until the current COS). Anyway, he is a little concerned (not because he don't agree with the finding) with the advisory opinion and the lack of objectivity in fully reviewing his case on the basis of the established regulatory guidance of the PPG. e. Lastly, the first paragraph is taken out of context in regards to the basis of his conversations with the North Carolina Joint Forces Headquarters COS and NCARNG COS who both supported his request for promotion upon retirement. At that time, the conversations were not about the PPG guidance; simply to correct a material injustice to his career from the past misuse of the vacancy promotion system to promote pre-selected officers for early promotion. 20. The applicant contends he was never afforded due process nor informed or provided an opportunity for promotion to LTC per PPG guidance (1 July 2009 with update on 9 August 2013) for an ARNG mandatory promotion board. He met with the Chief of Staff and Joint Forces Headquarters Chief of Staff, who supported his request for promotion upon retirement based on correcting a material injustice to his career from the past misuse of the vacancy promotion system to promote pre-selected officers for early promotion. He also asserts the CMB did not want to set a precedent to resolve the error and failed to publish the notes for their decision not to promote him. 21. The NGB, Chief of Personnel Policy Division and the NCARNG stated: a. The NCARNG reported at the time of the applicant’s REFRAD from Title 10 active duty, NCARNG was two LTC positions over its allowed LTC controlled grade authorizations. The over-grade issue was resolved by 30 September 2014; however, there was an additional three (DA Selected) AGR Battalion Commander's waiting on LTC authorizations who could not be promoted at the time due to lack of authorizations. Before, during, and even after his deployment, the applicant had been considered by the NCARNG CMB for positions at the LTC level; nonetheless, he was not selected as the best qualified. All Soldiers who are DA selected are considered by the NCARNG CMB for available vacancies. b. The AGR Program has assignment and controlled grade restrictions. Statutory requirement limits or sets control grade restrictions for the total number of RC officers serving on full-time RC duty at the end of any fiscal year in the ranks of MAJ, LTC, and COL. States will not be authorized additional controlled grades solely for the purpose of reaccessioning Soldiers into the AGR Program who were promoted while mobilized. c. Had the applicant been promoted to LTC, his discharge date would have been 7 September 2014, 180 days post deployment/REFRAD instead of April 2018 which allowed him to achieve 20 years of Title 32 active federal service for retirement. d. The NCARNG addressed the applicant’s statements concerning the failure to publish certain notes regarding his promotion in the minutes of the CMB meeting. His request for a LTC position for promotion prior to retirement was published on the minutes used by the NCARNG CMB for consideration, nevertheless, it was not resolved in the applicant’s favor and therefore considered a personal matter. Items of a personal nature that are not resolved favorably for the officer are not published in the general public minutes out of consideration for the officer but rather handled personally face to face with the officer. 22. The evidence shows the applicant was eligible for promotion to LTC; however, he was not promoted to LTC, which would have resulted in him being separated into the IRR. Nevertheless, he was allowed to remain in the AGR program in the rank of MAJ, and retired on his MRD. There is no evidence in this case that his chain of command supported his promotion. He was not selected for a LTC position; thus, he was not promoted to LTC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170011203 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2