BOARD DATE: 18 May 2020 DOCKET NUMBER: AR20190015352 APPLICANT REQUESTS promotion from First Lieutenant (1LT/O-2) to Captain (CPT/O-3). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Officer Evaluation Report * Officer Record Brief * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Declination of Promotion In Lieu of Promotion Review Board * Explanation of Declination of Promotion In Lieu of Promotion Review Board * Declination of Promotion In Lieu of Promotion Review Board from Applicant * Various Emails (7 pages) * Letter of Congratulations from General for promotion to General * Letter of Support (6 pages) * Memorandum For Exception to Separation * Officer Elimination Letter * Expungement Certificate * Involuntary Elimination based on Misconduct or Moral or Professional Dereliction * DA Form 368 (Recommendation For Award) * Army Commendation Medal (ARCOM) Certificate * Department of the Army Suitability Evaluation Board FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 he would like a correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a promotion to CPT/O-3. 3. The applicant provides: a. Officer Evaluation Report for the period 14 February 2018 to 22 February 2019. His rank is shown as 1LT. b. Officer Record Brief dated 11 February 2019. His rank is listed as 1LT (P). c. DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period ending 23 April 2019. d. A memorandum with the subject line: Declination of Promotion In Lieu of Promotion Review Board dated 31 May 2018, with the Commander’s recommendation of approval for the applicant’s request. e. A memorandum with the subject line: Explanation of Promotion In Lieu of Promotion Review Board dated 31 May 2018, with the applicant’s explanation of his declination for promotion to CPT. f. A memorandum with the subject line: Declination of Promotion In Lieu of Promotion Review Board dated 31 May 2018, with the applicant’s declination of his anticipated promotion of CPT. g. Emails with various conversations concerning the applicant’s transactions. h. A letter from General XX dated 29 August 2017, congratulating the applicant for his promotion to CPT. i. A Letter of Support dated 28 September 2016, from BN Executive Officer XX expressing his support in favor of the applicant and as a character reference. He recommended retention and an honorable discharge if he would be separated. j. A Letter of Support from LTC XX dated 29 September 2016, to express support and as a representation as a character witness. He recommends retention and an honorable discharge if separated. k. L Letter of Support from LTC dated 30 September 2016. The applicant served as his battalion assistant operations officer for him and he expresses his support and acts as a character reference. l. A Letter of Support from Major dated 30 September 2016, in which he expresses his support due to his high character and strong potential for continued service in the US Army. He is aware of the applicant’s DUI and possible separation from the US Army but, recommends retention in the military service. m. A Letter of Support from Major General dated 18 October 2016, expressing his support for the applicant as a character reference and he recommends an honorable discharge if he is separated. n. A memorandum for request of approval for an extension of the applicant’s separation date. It was approved by Lieutenant General. o. A letter dared 17 July 2017, signed by XX would be voluntarily eliminated for separation. His discharge would read honorable. p. A letter from XX shows the applicant’s discharge would be adjusted to 30 September 2017. q. A expungement certificate dated 23 May 2015, that shows an expungement order for the applicant’s charge of, “Operating a Vehicle Under The influence of An Intoxicant.” r. A letter from the Army Review Board Agency (ARBA) approving the involuntary elimination from the United States Army with a characterization of honorable. The decision is an ARBA decision from case number AR20170005714. The elimination is based both on his misconduct, moral or professional dereliction and derogatory information. s. A DA Form 638, recommendation for an award dated 17 July 2017, for the Army Achievement Medal. t. A Department of the Army Commendation Medal dated 25 July 2017, for the applicant. His rank is shown as a 1st LT. u. The Department of the Army Suitability Evaluation Board’s decision dated 10 January 2016, AR20160017135, Record of Proceedings that shows the applicant’s general officer memorandum of reprimand (GOMOR) dated 24 June 2015 will be transferred to his Army Military Human Resource Record AMHRR. This information is not retroactive and therefore does not constitute grounds for promotion reconsideration. v. Applicant’s 4 page rebuttal addressed to the President of the Army Board for Correction of Military Records (ABMCR). w. An ABCMR ROP (AR20170014115) dated 21 November 2017, that a decision was made to grant full relief of his request. 4. A review of the applicant’s service records show: a. The applicant’s DD Form 4 enlistment contract and his DA Form 2-1 Personnel Qualification Record are void in the applicant’s official Interactive Personnel Electronic Records Management System (iPERMS) file. b. He enlisted in the Regular Army and received the Oath of Office on 25 May 2013. c. The applicant received a General Officer Memorandum of Reprimand. The date is not legible. It is signed by Major General XX. d. On July 9 (year not legible), the applicant sent in a response to the GOMOR in which he elected to write a statement. e. He received an Army Substance Abuse Program (ASAP) Certificate for completion of the program from 14-15 July 2015, 14 hours total. f. On 25 April 2015, the applicant was charged with Operating a Vehicle Under An Intoxicant. g. On 25 July 2018,the applicant was removed fiscal year 2017 Captain’s List. On 31 May 2018, the applicant denied a promotion in lieu of a Promotion Review Board. h. The applicant retired honorably from the Regular Army on 23 April 2019. In block 4a of his DD Form 214, it shows he retired as a 1LT by reason of disability permanently enhanced. Office of the Assistant Secretary Manpower and Reserve Affairs, Memorandum, Subject: Grade of Officers when Retiring or Separating for Physical Disability: a. Prescribes policy for determining the retired grade of officers retired because of physical disability pursuant to Title 10 USC, section 1204, who would have been promoted had it not been for the physical disability for which the officer was retired. b. Officers retired because of physical disability pursuant to Title 10 USC, section 1204, will be retired in the next higher grade when the officer recommended by an SSB is on an approved promotion list prior to the effective date of retirement for physical disability. The policy implements the grade determination authority of Title 10 USC, section 1372, but it does not authorize the actual promotion of officers covered by the policy who are retired because of physical disability. Therefore, promotion orders will not be published for these officers. 6. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) in effect at the time states in: a. Paragraph 4-21(b)2 unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was / was not warranted. 2. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 2. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) paragraph 1-4d(3) (Eligibility Criteria) states that applicants for warrant officer appointment must have sufficient education and practical experience to insure satisfactory performance of duties of the classification for which they are applying for. For appointment in the AR, applications must be routed through the unit Commander of the assigned and gaining unit. For applicants in the AR requesting concurrent service on active duty, applications must be processed through their assigned AR Commander. The Commander will review applications for completeness and determine administrative eligibility. Applications that do not meet administrative prerequisites will be returned to the applicant with justification. 3. Office of the Assistant Secretary Manpower and Reserve Affairs, Memorandum, Subject: Grade of Officers when Retiring or Separating for Physical Disability: a. Prescribes policy for determining the retired grade of officers retired because of physical disability pursuant to Title 10 USC, section 1204, who would have been promoted had it not been for the physical disability for which the officer was retired. b. Officers retired because of physical disability pursuant to Title 10 USC, section 1204, will be retired in the next higher grade when the officer recommended by an SSB is on an approved promotion list prior to the effective date of retirement for physical disability. The policy implements the grade determination authority of Title 10 USC, section 1372, but it does not authorize the actual promotion of officers covered by the policy who are retired because of physical disability. Therefore, promotion orders will not be published for these officers. 4. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) in effect at the time states in: a. Paragraph 4-21(b)2 unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade 5. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. 6. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service,policies, tasks, rules, and steps governing all work required to support officer transfers and discharges //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015352 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1