ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20170016381 APPLICANT REQUESTS: his Unit Vacancy Promotion (UVP) to the grade of Major be reviewed and approved APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two sworn statements * UVP packet * recommendation for promotion * recommendation reference and letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, a. His Unit Vacancy Promotion (UVP) was submitted to the National Guard Bureau (NGB) on 8 November 2015 and returned to the State on 6 June 2016 due to an investigation regarding the Guard Recruiting Assistance Program (GRAP) found in his file. The investigation was closed on 11 December 2015. b. The GRAP investigation was dropped a few years ago; therefore, he does not deserve to be constantly punished for something that he was not convicted of. 3. The applicant provides: a. Two sworn statements from individuals which the applicant referred and helped recruit in to the Army National Guard. Both statements show, due to the amount of time that elapsed, their recollection of the events related to the GRAP were vague; however, both stated that the applicant was welcome to use them as references in support of his packet b. UVP packet that contains a National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board) and a recommendation memorandum, which reflects the applicant clearly demonstrated the required fitness for the responsibilities and duties of the position, grade and branch for which recommended. c. A letter of recommendation, authored by Lieutenant Colonel X___ X___, dated 8 November 2017, attesting to the applicant’s work ethics has and the fact that he continuously demonstrates his ability to serve at higher levels of responsibility. Further endorsing the applicant’s promotion to major. d. A copy of the promotion recommendation, signed by the New Mexico Adjutant General, Brigadier General X___ X___, dated 8 July 2006, reflects that based on the applicant being counseled, the suspension of favorable action removed, and the CID investigation being closed on 11 December 2015, the applicant be considered for promotion to major and placed back on his original scroll. e. Reference letter, dated 2 February 2017,which attests to the applicant’s unquestionable integrity, his consistent work performance, positive attitude and energy, his selfless service, and his moral and ethical character. f. A rebuttal statement, which reflects the following: (1) He received a General Officer Memorandum of Reprimand (GOMOR) on 11 September 2015 for receiving money through Document and Packaging Broker Inc. (DOCUPAK) as a recruiting assistant (RA) in 2006. He utilized the program to receive a bonus for two Soldiers, which happened more than more a decade ago. The incident occurred so long ago that the circumstances and details could not be recollected, which should not cast doubt on his reliability, trustworthiness, or good judgement. He had also lost his lost his Active Guard Reserve (AGR) position, as he was in his initial probationary tour of duty. There was substantial evidence provided that indicated that he did not commit the offenses stated in the memorandum to revoke his clearance and he had been cleared, (2) The GRAP rules and policies have changed more than five times since the start of the program in 2005. He uphold the Army Values in every way possible; he would never do anything that would be immoral, unethical or illegal. He has never received any type of disciplinary action during the 12 years he served with the New Mexico Army National Guard (NMARNG). He has served honorably, which includes a combat deployment in support of Operation Iraqi Freedom. He would never do anything to put the welfare and safety of his country in jeopardy for his own enrichment. He deserves to be promoted accordingly. 4. A review of the applicant's service record shows: a. The applicant enlisted in the Army National Guard on 1 June 2005, as a prior service member having no remaining statutory military service obligation. He held the military occupational specialty 92Y (Unit Supply Specialist). b. State of New Mexico, Department of Military Affairs, Orders 360-006, dated 26 December 2006, reflects the applicant was attached to 2nd Battalion, 515th Regiment, for the purpose of attending Officer Candidate School (OCS), with an effective date of 1 January 2007. c. On 27 July 2007, the applicant took the oath of office as a second lieutenant in the Army National Guard of the state of New Mexico. d. He was mobilized in support of Operation Iraqi Freedom on 5 May 2009 for 400 days. e. He was promoted to first lieutenant on 22 May 2009 and later to captain on 15 December 2011 f. Department of the Army, United States Army Physical Disability Agency, Order D 325-45, dated 21 November 2017, shows the applicant was placed on the permanent physical disability retired list, with an effective date of 21 December 2017. 5. The National Guard Bureau advisory opinion, dated 29 November 2018, states: a. A review of the applicant’s record in the Personnel Division (HRP) eTracker system shows that the ARNG Federal Recognition Section received the Soldier's promotion packet on 8 January 2016. On 26 February 2016, the Soldier was assigned to scroll PL07-16. b. During the post-board screening process, the Department of Military Personnel Management (DMPM) identified a founded CID investigation in the applicant’s record pertaining to GRAP. The applicant was reviewed by the Officer Review Board (ORB) where the case was referred to a Promotion Review Panel (PRP). On 6 June 2016, the applicant was removed from the scroll. In response to the removal notification, the NMARNG Adjutant General provided a memorandum (dated 8 July 2016) in support of the applicant's continued consideration for promotion and review through the PRP. c. In November 2016, notes in the HRP eTracker system state that the applicant was undergoing the PRP process. The applicant was placed on a single-nomination scroll for processing on 3 May 2017. d. Army Directive 2016-26, signed by the Secretary of the Army, called for the screening of officers and warrant officers for adverse and reportable information as defined in Department of Defense Instruction (DoDI) number 1320.04. Personnel Policy Operational Memorandum (PPOM) 17-025 describes this process for Army National Guard Officers and Warrant Officers in the ranks of 06 and below. The procedures used to review the applicant’s case were in line with those processes described in Personnel Policy Operational Memorandum (PPOM) 17-025. e. On 21 November 2017, the United States Army Physical disability Agency issued order D 325-45, placing the applicant on the Permanent Disability Retired List, effective 21 December 2017. Because the applicant was separated prior to the completion of the scroll, he was never promoted to the rank of major. Had the applicant remained in service, he would have likely been reviewed by the Secretary of the Army for final promotion determination. It should be noted that the applicant would not be guaranteed promotion to the next grade based on this review. PPOM 18-029 (update to PPOM 17- 025) sums up the SECARMY's role in this process as, "The SECARMY is the final approval on the following actions: directs retention on the promotion list, removal from the promotion list, or initiation of separation proceedings." f. Based on the evidence provided and the information described above, the NGB recommends denial of the applicant's request to be considered for promotion to major. There is no evidence that an error or injustice occurred during the consideration for promotion process. The appropriate actions were followed to comply with the exemplary conduct screening requirements of Army Directive 2016-26 and, based on the information found in the applicant’s record, the necessary processes were administered in accordance with PPOM 17-025. g. The Army National Guard Federal Recognition Section concurs with this recommendation. h. The New Mexico Army National Guard did not provide input regarding this recommendation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and the advisory opinion were carefully considered. The applicant was not in an approved promotable status when placed on the PDRL. The Board agreed there was no error or injustice in this case as he separated prior to the adjudication of his promotion consideration in which there was no guarantee he would have been placed on the promotion list to MAJ. 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. 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. Department of Defense Instruction (DoDI) number 1320.04, defines adverse and reportable information as follows: a. Adverse information is any substantiated adverse finding or conclusion from an officially documented investigation or inquiry or any other credible information of an adverse nature. To be credible, the information must be resolved and supported by a preponderance of the evidence. To be adverse, the information must be derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual. b. Reportable information is information other than adverse information requested to be reported by the SASC or by any member of the Senate or is information related to alleged misconduct or impropriety, which is subject to an on-going investigative, administrative, or judicial process. Normally a nomination will be delayed pending resolution of the investigative, administrative, or judicial process. 3. Personnel Policy Operational Memorandum (PPOM) 17-025 describes the Army National Guard Officer and Warrant Officer promotions and the exemplary conduct screening process for the ranks of O6 and below. a. The exemplary conduct certification is a continuous process to ensure that Officers and Warrant Officers meet the provisions of Title 10 U.S. Code §3583. On 18 July 2016, the Secretary of the Army (SA) signed Army Directive 2016-26, Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and below, directing all Army Officers and Warrants Officers, regardless of component, to be screened for adverse and reportable information as defined in DoDI 1320.04. b. To comply with exemplary conduct certification, State G1s and Personnel Division conduct limited screening of an Officer’s and Warrant Officer’s Army Military Human Resource Record (AMHRR) to include the restricted file. The Army G1, Directorate of Military Personnel Management (DMPM) conducts further screening for all Officers and Warrant Officers recommended for promotion. Screening includes adverse/reportable information in files held by Criminal Investigation Command (CID), Department of the Army Inspector General (DAIG), and the restricted portion of the AMHRR as well as special interest lists, i.e, Recruiter impropriety- Guard Recruiter Assistance Program (GRAP). No Officers or Warrant Officers will be promoted with open CID or DAIG investigations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016381 5 1