ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20180011030 APPLICANT REQUESTS: correction of his date of rank (DOR) to colonel (COL) from 1 January 2017 to a date that corresponds to his selection by the Fiscal Year 2014 (FY14) COL Army Competitive Category (ACC), Sequence Number 190. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FT14 ACC Selection Board Results, Release Date 28 August 2014 * Decision by the Officer Special Review Board (OSRB) to remove referred Officer Evaluation Report (OER) * Promotion Board Review (PRB) Results (PRB AP1508-02) * Secretary of the Army’s decision to remove [Applicant] from promotion list * Counsel’s legal brief * 2017 promotion orders FACTS: 1. The applicant states he was selected for promotion to COL on the ACC FY14 list (sequence number 190). An administrative error on his June 2014 OER resulted in him being removed from this promotion list in January 2016. In April 2016, he discovered the administrative error mentioned above, and submitted the June 2014 OER and supporting evidence to the U.S. Army Human Resources Command (HRC) (OER Appeal Process). HRC supported his appeal and he was granted a Special Selection Board (SSB) and selected for promotion to COL. HRC published the promotion order to COL with an effective date of 1 January 2017. However, his correct date of promotion to COL should be his original sequence number 190 in FY15. The reason being if the administrative error had not occurred, he would not have been removed from the selection list and promoted to COL in FY 15 (date of sequence number 190). 2. The applicant’s counsel states: a. The applicant requests that this board correct his DOR. In particular, he requests that his military records be corrected to reflect his promotion consistent with his original sequence number of FY14, sequence number 190. On 27 April 2017, the OSRB granted him appeal of his OER dated 20130703 thru 20140702. As a result of this action, an SSB published promotion orders on 24 May 2018 which selected and promoted him to COL with a date of rank of 1 January 2017. His promotion came two years too late. Specifically, the OSRB found "administrative errors" and corrected the OER accordingly. The OSRB ordered removal of the "X" in the Referred box, changed the reason for submission to Change of Rater, and removed the reference that erroneously claimed that he failed a record APFT (Army Physical Fitness Test) during this rating period. b. Based on this decision, he subsequently was re-boarded and promoted to COL effective 1 January 2017. These administrative errors resulted in his original evaluation to be a Referred OER. Undoubtedly, this report resulted in his name being pulled from consideration from the FY14, O-6 Promotion List. It seems apparent that if not for the errors and inaccuracies that are now removed from his OER he would not have been removed from the promotion list and he would have been promoted to COL in FY15 in accordance with his original sequence number. Consequently, despite his successful OER appeal, he has not been made whole and this inaccurate evaluation continues to impact his career; delaying his promotion nearly 2 years. This injustice should be corrected. 3. Review of the applicant’s service records shows: a. He was appointed as a commissioned officer on 12 January 1994. He entered active duty on 7 February 1994. b. He served in a variety of stateside or overseas assignments and he was promoted to lieutenant colonel (LTC) on 1 August 2010. c. He was selected for promotion to COL by the FY14 COL ACC selection board. This board results were released on 28 August 2014. His name was listed as a selectee with Sequence Number 190. d. During July 2014, he received a Referred OER covering the rating period 3 July 2013 through 2 July 2014. This OER was listed as an annual OER with an APFT entry of “Fail, 2014-06-27.” e. On 12 January 2016, by memorandum to the Deputy Chief of Staff (DCS), G-1, the Secretary of the Army (SA) stated, effective immediately, he directs the removal of [Applicant] from the FY14 COL, Army, Operations, Promotion Selection List, under the provisions of Title 10, U.S. Code, section 629(a), Executive Order 12396 and Army Regulation (AR) 600-8-29 (Officer Promotions), paragraph 8-1b. f. On 21 January 2015, by memorandum to the applicant, HRC informed him that in accordance with paragraph 8-2 of AR 600-8-29, his records were referred to a Department of the Army Promotion Review Board (PRB) for reconsideration of his promotion status. The SA decided to REMOVE him from the promotion list. g. On 5 April 2016, he appealed this ER to the OSRB. The OSRB granted relief in the form of changing the reason for this OER from annual to change of rater, changing the through date from 2 July 2014 to 26 June 2014, removing reference to the word “Referred,” and removing the APFT data and/or reference to APFT. The OSRB further determined that promotion reconsideration was warranted. h. He was considered and selected for promotion to COL by an SSB under the FY17 year criteria. i. On 24 May 2018, HRC published Orders 144-803 promoting him to COL with an effective date and DOR as 1 January 2017. The date of Senate confirmation is listed as 26 April 2018. j. His service record does not contain an APFT scorecard. It is unknown if and when he passed his APFT. His subsequent OER for the rating period 2014-07-03 through 2016-12-10 (Extended Annual) indicate she was on “profile on 25 May 2016.” k. Other LTCs who were selected for promotion by the FY14 COL ACC promotion board, Operations (OPS), and who were fully promotable with no disqualifying factors, and whose sequence numbers fell between 176 and 192 had their Senate confirmation on 11 December 2014 and their promotion to COL effective 1 September 2015. 4. By regulation (AR 15-185), 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. 5. 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. 6. By law (Title 10, U.S. Code, section 628), Sub-paragraph (d), Appointment of Persons Selected by Boards.— 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. 7. By regulation (AR 600-8-29), 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 PREB for a variety of reasons, including having a Referred OER. 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 relief was warranted. The Board unanimously voted to grant relief. In the Board’s opinion, had the applicant’s OER not been administratively incorrect, the applicant would not have been removed from the promotion list by the SA. The Board voted to grant him relief to the date he would have been promoted under original sequence number. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his effective date of promotion and date of rank to Colonel to a date consistent with his sequence number (190) as shown on the Army Competitive Category Fiscal Year 2014 promotion Selection Board. 10/3/2019 X CHAIRPERSON 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) 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. 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 PREB for a variety of reasons, including having a Referred OER. 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.