DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 9 October 2019 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , XXXXXXXXX, AR20190003257 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 9 September 2019, in which the Board members recommended relief. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find that there is sufficient evidence to grant relief. However, the recommended relief exceeds the Board’s authority; the ABCMR lacks the authority to promote officers as to do so would violate the Appointments Clause of the U.S. Constitution. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all relevant Department of the Army Records of the individual concerned be corrected by submitting his records for consideration by a Special Selection Board for the FY2017, Colonel Operations Support Promotion Selection Board. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 13 December 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: X Encl Deput y Assist ant Secret ary of the Army CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20190003257 APPLICANT REQUESTS: retroactive promotion to the rank/grade of colonel (COL)/O-6 with the same date of rank and position on the Active Duty List that he would have had his name had not been removed from the promotion list. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, U.S. Army Trial Defense Service, Fort Meade, MD, dated 26 February 2019, subject: Application for Correction of Military Record, Request for Retroactive Promotion (Applicant) * Email, Mr. S , dated 12 June 2016 * DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) for the period 21 May 2016 through 10 May 2017 * Email, Captain A , Commander, Joint Spectrum Center, dated 14 June 2017, subject: Follow up * Memorandum, White House Military Office (WHMO), Washington, DC, dated 10 July 2017, subject: Request for Headquarters, Department of the Army (HQDA) Supplementary Review of OER for (Applicant) * Email, Mr. P , dated 24 August 2017, subject: RE: Request for Support * Memorandum, Phoenix Air Ground Communications Network Program Management Office, dated 25 August 2017, subject: Supporting Statement for Evaluation Report (Applicant) * Memorandum, WHMO, Washington, DC, dated 28 August 2017, subject: OER Referral for (Applicant) * Memorandum, U.S. Army Trial Defense Service, Atlantic Region, Fort Meade, MD, dated 5 September 2017, subject: Rated Officer Comments (Applicant) * Memorandum, U.S. Army Trial Defense Service, Atlantic Region, Fort Meade, MD, dated 11 September 2017, subject: Request for Commander's Inquiry into OER (Applicant) * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 26 September 2017 * Lieutenant Colonels, Operations Support (OS) Competitive Category, Consideration/Recommended for Promotion to the Grade of COL, released 26 September 2017 * Email, Captain (CPT) W , dated 20 October 2017, subject: RE: Request for Inquiry into OER Comments * Affidavit, U.S. Army Trial Defense Service, dated 26 October 2017, subject: Metro Usage Data * Email, CPT W , dated 27 October 2017, subject: Freedom of Information Act (FOIA) Request * Email, Mr. R , dated 31 October 2017, subject: RE: Employee Start Date * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 4 January 2018, subject: Delay of Promotion and Referral to a Promotion Review Board (PRB), with acknowledgement * Memorandum, U.S. Army Trial Defense Service, Fort Meade, MD, dated 25 January 2018, subject: Rebuttal for Delay of Promotion and Referral to PRB (Applicant) * Record of Proceedings, Officer Special Review Board (OSRB), dated 17 April 2018 * Memorandum, Secretary of the Army, Washington, DC, dated 1 August 2018, subject: PRB AP1803-XX, Fiscal Year 2017 (FY 17) COL, OS, Promotion Selection Board (PSB) * DA Form 1574-2 (Report of Proceedings by Board of Officers), dated 14 November 2018 * Memorandum, U.S. Army Military District of Washington, Fort McNair, DC, dated 20 December 2018, subject: Report of Inquiry Proceedings (Applicant) FACTS: 1. The applicant states: * his retroactive promotion is appropriate under the law because the sole basis for his removal from the FY 17, COL, OS promotion list was an unsubstantiated OER * all derogatory remarks in the OER were unsubstantiated by an HRC-directed Board of Inquiry * the previous PRB was performed before the Board of Inquiry * the decision of the PRB to remove his name from the promotion list was influenced by what is now determined to be an unsubstantiated OER * removal of this OER from his Army Military Human Resource Record (AMHRR) has also been requested * he was recommended for promotion to COL on 18 April 2017 * he was notified of the delay of his promotion and referral to a PRB because of a referred OER on 4 January 2018 * he was removed from the promotion list on 1 August 2018 * the unjust actions were based solely on unsubstantiated allegations in a referred OER * the OSRB denied his appeal to remove the referred OER on 17 April 2018 * the Board of Inquiry determined the derogatory information in his OER was unsubstantiated on 14 November 2018 2. At the time of the applicant's consideration for promotion by the FY 17 Active Component, COL, OS, PSB, he was serving as a Regular Army lieutenant colonel/O-5 as the Presidential Contingency Communications Program Manager within the WHMO. 3. On 8 June 2017, HRC initiated a flag against him for delay or removal from a selection list. 4. On 20 July 2017, his senior rater requested a supplementary review of the applicant's relief-for-cause OER covering the period 21 May 2016 through 10 May 2017. 5. On 28 August 2017, the applicant received notification of his relief-for-cause OER covering the period 21 May 2016 through 10 May 2017. 6. On 5 September 2017, he submitted his rated officer comments to his senior rater of his relief-for-cause OER. 7. On 11 September 2017, he requested a Commander's Inquiry for his relief-for-cause OER. 8. On 26 September 2017, the FY 17, COL, Army Competitive Categories, Selection Board Results were released. The applicant's name is shown on the promotion list. 9. On 4 January 2018, HRC notified the applicant of his delay of promotion and referral to a PRB. HRC stated the applicant received a referred OER, which was identified in the post-selection screening of the FY 17 2017, Active Component, COL, OS, PSB which convened on 18 April 2017. He was advised that: a. the PRB would recommend one or more of the following to the Secretary of the Army: * retention on the promotion list * removal from the promotion list * show cause for retention on active duty b. A flag had been imposed and would remain in effect throughout the PRB process. 10. On 17 April 2018, the OSRB denied the applicant's request for removal of the relief- for-cause OER from his AMHRR. 11. On 1 August 2018, the Secretary of the Army removed the applicant's name from the FY 17, COL, OS Promotion List. 12. On 14 November 2018, an administrative elimination board convened to determine whether the applicant should be separated from the Army prior to the expiration of his current term of service. a. The board found: * the allegation that he received a referred OER covering the period 21 May 2016 through 10 May 2017 was not supported by a preponderance of the evidence * the allegation that he directed a WHMO contractor to provide Secret information to a non-WHMO contractor was not supported by a preponderance of the evidence * the allegation that he provided a false official statement to an inquiry officer was not supported by a preponderance of the evidence * the allegation that he failed to report his spouse's employment with a contracting firm was not supported by a preponderance of the evidence * the allegation that he violated Department of Defense Instruction 1000-27 by applying for, certifying eligibility for, and receiving Metro benefits while having Government-provided parking was not supported by a preponderance of the evidence * the allegation that he demonstrated conduct unbecoming an officer was not supported by a preponderance of the evidence b. The board determined the findings did not warrant his separation and recommended his retention in the U.S. Army. 13. On 20 December 2018, the Commander, U.S. Army Military District of Washington, approved the applicant's retention without reassignment and stated the HRC-imposed flagging action was closed. 14. On 23 May 2019, the Army Board for Correction of Military Records approved the applicant's request for removal of the relief-for-cause OER from his AMHRR and its replacement with a statement of non-rated time. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined there is sufficient evidence to grant relief. The Board found that the applicant experienced an injustice when he was removed from the FY17, Colonel, Army Competitive Categories, Selection Board Results list and was not promoted to COL/O6 subsequent to an investigation and receiving a related (later unsubstantiated) substandard OER. The Board agreed that, due to the findings of a 14 November 2018 administrative elimination board that allegations against the applicant were not supported by a preponderance of the evidence and ABCMR’s decision in Docket #AR20190003309 to remove derogatory information from the applicant’s AMHRR, the applicant should be promoted to the rank/grade of COL/O6 retroactively in accordance with the FY17, Colonel, Army Competitive Categories, Selection Board Results, released 26 September 2017. 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 retroactively promoting the applicant to Colonel in accordance with the FY17, Colonel, Army Competitive Categories, Selection Board Results, released 26 September 2017 with the same position and sequence number that he would have had if his name had not been removed from the promotion list. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. Paragraph 1-15 (Post-Board Screening) states a post-board screening will be conducted for officers selected for promotion to COL. A board will review any adverse information in other official files, including the restricted folder of the AMHRR. These files are screed to ensure that officers who have engaged in conduct that would warrant their nonselection for promotion, if known by the original selection board, are not promoted. The file of those officers, along with the derogatory information, may be presented to a PRB to reevaluate the recommendation for promotion to COL. b. Paragraph 1-11 (Approving Promotion Board Recommendations) states promotion boards make recommendations to the President of the United States. Promotions to the grade of major and above must be confirmed by the Senate. c. Paragraph 8-1b (Managing PRBs) 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. This authority has been delegated to the Secretary of the Army. d. Paragraph 8-2 (Basis for Referral) provides states 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 a referred OER. 2. Title 10, U.S. Code, section 14310 (Removal of Officers from a List of Officers Recommended for Promotion) provides that the President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted. 3. Executive Order 13358 (Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces) provides that the Secretary of Defense shall perform, except with respect to the Coast Guard during any period in which it is not operating as a service in the Navy, the functions of the President under the provisions of Title 10, U.S. Code, 12203(a), which states appointments of Reserve officers in commissioned grades of LTC or below shall be made by the President alone. Appointments of Reserve officers in commissioned grades above LTC shall be made by the President, by and with the advice and consent of the Senate. 4. Under Secretary of Defense memorandum, dated 10 February 2015, subject: Limitation on the Authority of Military Department Correction Boards, states the U.S. Court of Appeals for the Federal Circuit opinion, issued on 8 January 2015, affirms an important limitation of the authority of Military Department correction boards: they do not have the authority to appoint military officers. Only the President may appoint Regular officers above the grade of O-3 and Reserve officers above the grade of O-5 following Senate confirmation. Only the Secretary of Defense may appoint all other officers because Congress has vested such appointment authority in the President alone, and the President has assigned that function to the Secretary of Defense. This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors or injustices by correcting records to show an officer has been appointed to a certain grade when the officer has not been appointed to that grade by the President or the Secretary of Defense. Boards may only make such a correction to reflect that a proper appointment has occurred. They may also adjust the date of rank of an officer who has been properly appointed. //NOTHING FOLLOWS//