ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 April 2020 DOCKET NUMBER: AR20200001034 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on remand from the United States Court of Federal. The Court directs the ABCMR to: * rescind its 30 October 2019 * issue a new decision that fully addresses the applicant's promotion and more fully develops the record APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: the Court provided the Court Remand, dated 28 January 2020 FACTS: 1. The applicant filed his original application in 2016. The applicant requested removal of a General Officer Memorandum of Record (GOMOR) from his Official Military Personnel File (OMPF) or moved to the restricted file, removal of a referred Officer Evaluation Report (OER) from his OMPF, promotion to First Lieutenant (1LT), effective 26 November 2013, change his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect four years of service and voluntary release from active duty to completion of required active service, and reinstatement in the U.S. Army Reserve (USAR) or the Individual Ready Reserve (IRR) at the rank of 1LT. The ABCMR denied the applicant's request on 30 October 2019 – the Board reviewed the case on 26 August 2019. As relevant to the current application, the ABCMR found the applicant’s request for promotion, amendment of his DD Form 214, and transfer to the USAR were without merit. 2. The applicant, pro se, filed a lawsuit in the U.S. Court of Federal . Pursuant to an unopposed motion for voluntary remand, the parties asked the Court to remand the case for the ABCMR to issue a new decision that fully addresses the applicant's promotion and to more fully develop the record. Both parties requested that the Court grant the motion to voluntarily remand the case to the Agency for further action and stay proceedings until a determination is rendered by the ABCMR. The ABCMR will reconsider the applicant’s request as well as additional argument submitted on behalf of the applicant. The issues of removal of the GOMOR and OER were not remanded by the Court nor has the applicant requested reconsideration of these issues by the ABCMR. 3. The applicant, filing pro se, states in his motion: a. The applicant signed an eight year enlistment contract along with a Reserve Officer Training Corps (ROTC) Scholarship Contract on 23 July 2008 for the purpose of entering Senior ROTC. He incurred an eight year service obligation via the scholarship contract, which included four years on active duty if selected. b. After being selected for active duty, the applicant signed a Supplemental Service Agreement on 6 December 2011 for the purpose of entering the Graduate School for Active Duty Service Obligation Program, which added three years to the applicant's require active duty service obligation in exchange for the opportunity to attend fully funded graduate school. c. The applicant was ordered to active duty as a regular commissioned officer in the rank of Second Lieutenant (2LT) with a seven year service obligation on 18 May 2012. He was assigned to 609th Transportation Detachment in October 2012, which was part of the 82nd Airborne Divisions who reported directed to the XVIII Airborne Corps. d. In September 2013, the applicant was suspended from his duties while an investigation was completed. A Suspension of Favorable Personnel Action (FLAG) was placed on the applicant's record on 30 September 2013. The FLAG caused the applicant's deployment orders to be revoked. It also prevented promotion orders to the rank of 1LT from being prepared in advance of the applicant's promotion eligibility date of 26 November 2013. e. The allegations for the investigation were substantiated, and the applicant received a GOMOR permanently filed on 31 January 2014. The applicant then appeared before a Board of Inquiry (BOI) to determine suitability for continued service in the Army. The BOI voted to retain the applicant in the Army with reassignment in the Army on 20 February 2014. The FLAG was removed on 11 March 2014. f. The 82nd Sustainment Brigade's administrative personnel refused to allow the applicant to leave the brigade for assignment to an outside unit. The applicant then volunteered to join the portion of the Brigade Headquarters that was deployed to Afghanistan and he deployed in late April 2014. g. While deployed, the applicant inquired as to the status of his promotion. He was told he was being denied the promotion and he was to return to the United States for an involuntary separation. The reasons for denial of promotion consisted of the same contentions considered by the BOI. h. The applicant redeployed in late May 2014. The applicant's promotion was again denied in November 2014 based on the same contentions considered by the BOI. As a direct result of the second promotion denial, the applicant was involuntarily separated from the Army on 31 January 2015. i. The applicant attended law school from August 2015 through May 2018. He filed an application with the ABCMR on 18 November 2016. He filed an amended application on 29 November 2016 and further amended his application on 14 February 2017. He filed a brief in support of his application on 22 November 2017. The ABCMR denied the applicant's request on 25 September 2019 and advised him by a letter dated 30 October 2019. j. Federal law dictates the manner of promotion for most military commissioned officers; however for promotions to 1LT it states those officers "shall be promoted in accordance with regulations prescribed by the Secretary concerned.” The regulations prescribed the the Secretary of the Army provide that eligibility for promotion to 1LT is based on the Promotion Eligibility Date (PED). For a 2LT who is a May ROTC graduate, PED is calculated as "18 months from the United States Military Academy graduation of the year the officer entered active duty." k. Eligibility for promotion is not affected by a FLAG; however, a promotion will be delayed by a FLAG. After a FLAG is lifted, a determination is made as to if the officer was unqualified during any of the period of delay, and the date of rank would be adjusted accordingly. l. In situations where a GOMOR was imposed, the officer would have been unqualified until the date the GOMOR was directed to be filed. Under Army regulations, the applicant should have been promoted 11 March 2014 when his FLAG was lifted and the effective date should have been 31 January 2014 when his GOMOR was directed to be filed. Any decision not to promote would have been untimely after the passing of the PED. m. A decision not to promote a 2LT to 1LT cannot be made solely to circumvent a decision to retain made by a BOI. Compare Army Regulation 600-8-24 where it states, "an officer cannot be discharged because of conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the Service" with Army Regulation 600-8-29 where it states a "if 2LT is still not recommended for promotion after a six month retention period, he will be discharged. n. The Army exceeded its authority in denying the applicant's promotion in contravention of its own regulation. The Federal Circuit Court has noted jurisdiction for the Court of Federal where a promotion has been improperly denied contrary to regulation. The US Constitution's appointment's clause does not bar judicial intervention in this case as a 1LT is an inferior officer. The National Defense Authorization Act for Fiscal Year 2005 removed the former statutory requirement that 2LTs, 1LTs, and captains be confirmed by the Senate. o. The applicant respectfully asks the Board for the following relief: (1) The Army pay the applicant $8,080.20 as the difference in active duty basic pay the applicant received at the 2LT pay grade and the basic pay the applicant was entitled to as the 1LT pay grade from 31 January 2014 to 31 January 2015. (2) The Army pay the applicant an additional $88,900.40 as the amount of active duty basic pay and allowances the applicant was entitled to at the 1LT pay grade from 1 February 2015 through 18 May 2016. (3) The Army pay the applicant $40,245.42 as the amount of reserve duty training pay (including active duty annual training for reservists) the applicant would have been entitled to at the 1LT pay grade from 19 May 2016 through 31 January 2020. (4) The Army add $664.16 to the applicant's payment for every month past January 2020 it takes to resolve the case as compensation for reserve duty training pay the applicant will be entitled to for monthly drill, except for the months of July where the Army will pay $4,981.20 as compensation for required month long annual active duty training. (5) The Army effectuate the applicant's retroactive promotion to 1LT, effective 31 January 2014. (6) The Army void and destroy the applicant's military discharge documents and replace them with documents indicating the applicant's release from active duty as a 1LT in the USAR, effective 19 May 2016. (7) The Army correct all military records to reflect said promotion and release from active duty into the reserves. (8) Any other and further relief as the Court finds just and equitable. 4. The applicant provided a self-authored letter, dated 3 February 2020, for the Board's consideration, which states: a. He is in receipt of the Board's decision in ABCMR case AR20170000662, dated 30 October 2019. He is also in receipt of the order from the Court of Federal Claims ordering the Board to rescind their decision so a new decision can be issued with more detailed reasoning as it relates to his request for promotion to 1LT. b. As the Board reconsiders their decision, he would like to provide additional information for the Board to weigh. In regards to his promotion, he stated he was promotion eligible as of 26 November 2013 and should have been promoted on 11 March 2014 when his flag was lifted and the effective date should have been 31 January 2014 when his GOMOR was directed to be filed. He still believes it was too late to deny a promotion after the date for the reasons stated in his application and brief. c. He would like the Board to also consider, "the Secretary of Defense has directed the Secretary of the Army to establish its own procedures for the separation of officers. Under Army procedures, if a 2LT is still not recommended for promotion to 1LT after a six month retention period, he will be discharged; however, Army regulation states an officer cannot be discharged under AR 600-8-24, paragraph 4-2 because of conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the service." d. Under Army regulation, a 2LT could not be denied promotion to 1LT solely to undermine the decision of a board of inquiry. In another part of the applicant's brief he wrote, "The intent of the 6 month delay is to allow time for the 2LT's performance to improve and for the promotion to be approved by the approval authority without action by the promotion review authority." After the 6 month delay in his case, he performed his duties satisfactorily but was denied promotion based on the same reasoning of the DA Form 78-R approved by the Brigade Commander. He would like to add additional pieces of information. e. The Secretary of Defense has given specific instructions to the Secretary of the Army in Department of Defense Instruction (DODI) 1320.10 regarding promotion of 2LTs to 1LT. The DODI states it is Department of the Defense policy to discharge officers who are not qualified to be promoted to the grade of 1LT; however, it is recognized that such officers are new to commissioned military service and should be afforded a reasonable opportunity to overcome their deficiencies before discharge action is taken. He believes the refusal to allow him to leave the brigade as ordered by the BOI, coupled with the two DA Form 78-R and the additional evidence in the record, show he was impermissibly denied the opportunity, despite the BOI indicating it was warranted. f. In his brief he also stated, "the applicant recognizes the difficulty of counterfactually estimating the likelihood of promotion absent error and injustice, therefore, the applicant requests his DD Form 214 be amended to reflect at least a four- year term in service and the rank of 1LT, but encourages the Board to increase the length of service and or/termination rank to the extent the Board finds necessary to correct error or injustice." The remaining new evidence pertains to that request. He submitted his Scholarship Cadet Contract and Supplemental Cadet Service agreement. The Supplemental Cadet Contract states, the applicant understand this contract will be validated prior to his expiration of his initial active duty service obligation (ADSO). Prior to initial ADSO expiration, selection to the grade of CPT will constitute the first validation of continued eligibility to participate in the Graduate School for Service Program. He believes a Special Selection Board can evaluate whether he would have been promoted to CPT prior to the expiration of his initial ADSO. If not selected for CPT by the Board, then the last for years of his 8 year obligation should be served in the Army Reserves as stated in his initial ADSO contract. "Serve up to 4 years on active duty as a commissioned officer in the US Army or for a period prescribed by relevant Army regulations based on the needs of the Army, followed by service in the Reserve Component as set forth in relevant Army regulations, until the remainder of his 8 year contractual military service obligation has been served." 5. The applicant's service records contain the following documents for the Board's consideration: a. A DA Form 71 (Oath of Office - Military Personnel), which shows the applicant was commissioned as a Reserve Officer in the rank of 2LT on 11 May 2012 and entered active duty on 18 May 2012. b. Orders 363-0275 published by Headquarters, United States Army Garrison, Fort Bragg, dated 29 December 2014, which shows the applicant was discharged from the Regular Army on 31 January 2015. 6. Applicant's service records are void of a DA Form 268 (Report to Suspend Favorable Actions (FLAG)) showing he was flagged for investigation or removal of the FLAG upon completion of the actions taken by the command. 7. The applicant provides the following documents for the Board's consideration: a. DODI Number 1320.10, dated 6 February 2014. b. DA Form 597-3 (Army Senior Reserve Officers' Training Corps Scholarship Contract), dated 27 August 2008. c. US Army Cadet Command Supplemental Cadet Service Agreement Graduate School for Active Duty Service Obligation Program, dated 6 December 2011. 8. The applicant provided the following documents for consideration by the Board in his previous ABCMR case AR20170000662, which are available for review: a. A DD Form 149 requesting removal of the GOMOR dated 28 October 2013, removal of his referred OER dated 6 September 2013, promotion to 1LT, effective 26 November 2013, change his DD Form 214 to reflect 4 years of service and voluntary release form active duty due to completion of required active service, and reinstatement into the USAR or Individual Ready Reserve in the rank of 1LT. b. A memorandum to the Board listing the references and documents the applicant would like to bring to the Board's attention. c. An excerpt from Title 10, United States Code (USC), section 1552(a)(1), which states "The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department." d. An excerpt from Title 10, USC, section 1553(b), which states, "A board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal or issue a new discharge to reflect its findings." e. An excerpt from Title 10, USC, section 624(2), which states, "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. Officers to be promoted to the grade of 1LT or lieutenant shall be promoted in accordance with regulations prescribed by the Secretary concerned." f. An excerpt from Army Regulation 15-185 (ABCMR), which states in paragraph 2-4, "Applicants must file an application within 3 years after an alleged error or injustice is discovered or reasonably should have been discovered. The ABCMR may deny an untimely application. The ABCMR may excuse untimely filing in the interest of justice." g. An excerpt from Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) which states in paragraph 2-3a, "Investigating Officers (IOs) and board members will be those persons who, in the opinion of the appointing authority, are best qualified for the duty by reason of their education, training, experience, length of service, demonstrated sound judgment, and temperament. IOs and board members must be impartial, unbiased, objective, and have the ability to complete the investigation in a timely manner. If an appointing authority determines that a person with the required experience and expertise is not available within his or her organization, he or she may request assistance from a superior in his or her chain of command or supervision, or coordinate with a counterpart to obtain an IO or board member with the required education, training, experience, and expertise to conduct the investigation or board." h. An excerpt from Army Regulation 600-8-24 (Officer Transfers and Discharges), which states: (1) In paragraph 4-4b, "No officer will be considered for elimination because of conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the Service. For purposes of this paragraph, an officer will be considered to have been the subject of elimination proceedings only if allegations against the officer were acted on by a BOI. (2) In paragraph 4-15b(2), "Based on evidence (presented at the hearings), the board will make a separate finding on each factual allegation and reason for involuntary separation. The board will render findings of fact, supported by a preponderance of the evidence, that describe specific relevant conduct by the Respondent in sufficient detail to support the board's recommendation. The findings will address each separate reason for separation and each separate factual allegation. The board may choose to address mitigating, extenuating or aggravating factors in its findings where the board believes that such findings are necessary to support or explain the board’s recommendation. The board may present finding that amend or specify new allegations. However, new allegations must support a reason for elimination that was included in findings of the selection board or in the officer's notification memorandum. The board may recommend retention with or with reassignment or involuntary separation. The board will include the type of discharge certificate and characterization to issue, when elimination is recommended for misconduct, moral or professional dereliction, or in the interest of national security." (3) In paragraph 5-9a, "Commissioned officers and chief warrant officers on the active duty list twice non-selected for promotion to the grade of captain, major, and lieutenant colonel will be involuntarily released or discharged." i. An excerpt from Army Regulation 600-8-29 (Officer Promotions), which states: (1) In paragraph 1-13b(3), "2LTs who have not been promoted at the end of the six month retention period will be process for separation. (2) In paragraph 1-21a and 1-21b(5), "When a delay in promotion is ended, the promotion approval authority will determine if the officer was in fact unqualified for promotion during all or part of the delay and will adjust the Date of Rank and effective date of promotion accordingly. " "Information required to support the decision includes date that the GOMOR was directed to be filed in the officer's OMPF not the date the memorandum is actually imposed or filed." (3) In paragraph 2-1c "The 2LT active duty date of rank of ROTC cadets appointed as Regular Army 2LTs in May or June of any year is the same as the US Military Academy main graduation date for that year." (4) In paragraph 3-1a(1) "An ROTC graduate who is appointed and enters active duty in the month of May or June of the same year his or her PED will be 18 months from the United States Military Academy graduation of the year the officer entered active duty." (5) In paragraph 3-5b, "When a promotion authority disapproves promotion to 1LT they must process a DA Form 78 not later than the PED." (6) In paragraph 3-5c, "The recommending authority and the promotion authority will fully explain the reasons for the recommendation on the DA Form 78." j. An excerpt from Army Regulation 623-3 (Evaluation Reporting System), which states in paragraph 1-11, "When a commander discovers that an evaluation report rendered by a subordinate may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The commander's inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy and procedures established by Headquarter Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed, command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official." k. ABCMR case AR20100020178, which contains a factual situation different form the applicant's situation. It is similar in that a 2LT was flagged prior to his PED. The Board denied the applicant's request because he was flagged from before his PED to his date of discharge so was never eligible to be promoted. This is in contrast to the applicant's case because the applicant's flag was lifted and he became eligible for promotion. l. ABCMR case AR2000035613, which is a similar case. The applicant in that case was improperly removed from active duty by his command using a DA Form 78 after another avenue failed. The 2LT was acquitted by court-martial of larceny. His command still referred to that incident on the DA Form 78 and took other retaliatory actions. The applicant's command in the case before the Board today, should have honored the decision of the BOI and the principles for which it stood. The BOI found the applicant's retention in the Army was in the best interest of the Army and that he should be reassigned. The command's disregard of the BOIs decision, which was binding by regulation, was inequitable. m. A computer printout which shows the United States Military Academy graduation for the year of 2012 was 26 May 2012. The applicant was commissioned as a 2LT on 11 May 2012. By regulation the applicant's PED would be 26 May 2012. n. A DA Form 4187 (Personnel Action), dated 24 October 2012, which shows the applicant was reassigned via an intra-brigade transfer to the 330th Transportation Battalion, 82nd Sustainment Brigade, Fort Bragg. o. A letter of Continuity from the applicant's company commander, dated 28 February 2013, regarding his transfer from the 609th Transportation Detachment to the 330th Transportation Battalion, which states: * the applicant's performance had been outstanding as the Movement Control Officer * he immersed himself in meeting the requirement of his additional duties and elevating the standard for those duties * he was recognized for his organization of the arms room in inspections as a model for the brigade to follow * he oversaw the turn in of equipment and the reissue of new equipment which increased the unit's combat effectiveness * he lead by example at all times and was well respected by his Soldiers * he was a truly gifted officer capable of accomplishing the mission above and beyond the standard p. An undated memorandum form his battalion commander temporarily suspending him from his duties as the Executive Officer of the 609th Movement Control Team because of an investigation regarding allegations of fraternization and inappropriate relations with a junior, enlisted Soldier. q. A memorandum for record from his company commander, dated 19 September 2013 requesting the applicant be flagged while he was pending an investigation. r. A DA Form 268 flagging the applicant, effective 19 September 2013, for a commander's investigation. s. A GOMOR dated 28 October 2013, which states an investigation substantiated allegations the applicant fraternized with subordinate enlisted Soldiers and engaged in an improper relationship with a specialist who was married and in the applicant's company. The applicant disregarded his commander's verbal warnings to avoid the perception of fraternization and violated a direct order from his company commander to distance himself from the specialist. t. A memorandum for US Army Human Resources Command, dated 31 January 2014, directing the GOMOR be placed permanently in the applicant's OMPF. u. The recommendations of the applicant's chain of command regarding the filing of the GOMOR. The applicant's company commander recommended local filing. His battalion and brigade commanders both recommended filing in his OMPF. v. A memorandum from the applicant acknowledging he received the GOMOR and understood it. The applicant elected to submit written matters regarding the GOMOR. w. The applicant's response to the GOMOR, dated 13 December 2013, wherein he requested the Commanding General withdraw the GOMOR or file it in his local file and gave information regarding the allegations of fraternization that were against him. x. His Officer Record Brief which shows his commission date was 11 May 2012. y. A DA Form 4856 (Developmental Counseling Form), dated 25 March 2013, which lists his responsibilities and what is expected him as an officer in the 609th Transportation Detachment. z. A letter from Headquarters, United States Army Cadet Command, dated 1 May 2008, which congratulates the applicant on receiving a 4 year ROTC scholarship. aa. Transcripts from the University of Miami. bb. A request from his Brigade Commander to the Commanding General, dated 15 October 2013, requesting a GOMOR for substantiated allegations of fraternization and an improper relationship with a specialist in his company. cc. A legal review of the AR 15-6 investigation, dated 3 October 2013, stating the investigation complied with legal requirements, there were no material legal errors in the finding and recommendations, there was sufficient evidence to support the IO's findings, and the recommendations were consistent with the findings. dd. The AR 15-6 investigation with all evidence. The IO found evidence which substantiated the applicant fraternized with junior Soldiers and had an improper relationship with a specialist in his company. The IO recommended the applicant be reprimanded. ee. A DA Form 67-9 (Officer Evaluation Report (OER)) for the period of 11 May 2012 through 6 September 2013, which shows: * the applicant was marked "no" in honor and integrity * his rater marked him as unsatisfactory performance, do not promote * his senior rater rated him below center of mass stating the applicant continually fraternized with several junior enlisted Soldiers many of whom were under his direct supervision ff. A self-authored memorandum for record regarding the OER, dated 26 February 2014, relating to the "no" entries for the Army values of honor and integrity and the comments of do not promote and do not retain. The applicant states: * regarding honor the AR 15-6 investigation documented instances of selflessness in working late to accomplish the mission and going above and beyond to look out and care for Soldiers under his care * regarding integrity several witnesses, to include his rater for the OER and his current rater, testified under oath his integrity was beyond reproach * a BOI with the power to retention or discharge from the military directed retention after examining the evidence and questioning witnesses * his retention in the Army was in the best interest of the government gg. A memorandum from the Commanding General, dated 20 March 2014, wherein he had reviewed the BOI findings and approved them for the application's retention and reassignment within the United States Army. hh. A legal review of the BOI, dated 6 March 2014, which states the finding of the BOI were supported by a preponderance of the evidence. There were no material errors in the BOI that affect the findings and recommendation. The actions of the BOI complied with legal and procedural requirements. The recommendations of the BOI were consistent with the findings. ii. A memorandum of record from the applicant's company commander, dated 11 March 2014, requesting removal of a FLAG because the applicant was no longer under investigation. jj. A DA Form 268 removing the applicant's flag, effective 11 March 2014. kk. A DA Form 78-R (Recommendation for Promotion to 1LT), dated 21 April 2014, which shows: * the applicant's direct supervisor did not recommend him for promotion or retention in the Army * the recommendation was due to the applicant's failure to comply with regulation specifically violating the Army Fraternization Policy * he continued to display a lack of maturity and insufficient decision making abilities * he lacked potential to perform at the next higher grade * he did not display skill critical for retention in the military * that type of behavior conflicted with the Army values and should not be tolerated * the applicant's battalion commander did not recommend the applicant for promotion * the recommendation was due to the fact the applicant was afforded the opportunity to discontinue perceived, undesirable behavior through informal counseling by his commander * the negative behavior continued and a formal investigation was initiated * the allegations were substantiated by the IO * fraternization is unbecoming of an officer and is against the Army Values * the repeated behavior made it evident the applicant did not live the Army Values * the applicant’s lack of judgment made him undesirable to retain in the Army * the promotion authority denied the applicant's promotion ll. A memorandum for record from his brigade commander, dated 21 April 2014, releasing the applicant from deployment early, effective 21 April 2014. mm. A DA Form 67-10-1 (Company Grade Plate OER) for the period of 7 September 2013 through 30 April 2014, which states: * the applicant was proficient * he embodied the Army values * he was a consummate professional * he mentored junior Soldiers and NCOs * he was a consummate team player * he was highly qualified * he was a leader that would continue to contribute in in the service of the nation * promote now and send to the Captain's Career Course immediately nn. A DA Form 4187, dated 1 May 2014, transferring the applicant from the 189th Combat Sustainment Support Battalion to the 82nd Special Troops Battalion, effective 1 May 2014. oo. An undated self-authored memorandum regarding his denial of promotion date of 21 April 2014 which states: * it had been over a year since the AR 15-6 investigation regarding the fraternization * he spent months preparing for a BOI * the BOI found him accountable for fraternization and conduct unbecoming of an officer * rather than discharging him, the BOI voted to retain him in the Army * three weeks into his deployment, he was told his promotion to 1LT was not forthcoming * his weapon was taken from him and he was redeployed and told to spend the next six months preparing to exit the Army * he was slotted over strength in a position that was unsuited for an officer of his grade and experience * his request to move to a position in the brigade or to leave the brigade was denied * he acknowledged his mistakes and deficiencies * after that he had ample opportunity to work with experienced NCOs and officers * he learned much from them that he did not know when he made his mistakes * if he was not promoted, he would be processed for discharge * he would not be eligible for veteran's preferences or other benefits because he would not have served his full term of service * he might have been required to pay back the ROTC scholarship funds * he had been adequately reprimanded for his deficiencies * he asked the promotion authority to approve his promotion to 1LT pp. A DA Form 78-R, dated 6 November 2014, which states: * the applicant's immediate supervisor did not recommend him for promotion * the applicant had performed in a satisfactory manner during his promotion- denial 6 month abeyance period * however, due to the nature of the substantiated investigation, he was not recommend for promotion to 1LT * his battalion commander did not recommend him for promotion * he concurred with the recommending officials remarks * the promotion authority denied the applicant's promotion to 1LT qq. A memorandum from the Commanding General, dated 6 November 2014, wherein he denied the applicant's promotion to 1LT and stated his further service was not in the best interest of good order and discipline in the command. rr. A memorandum from the applicant's brigade commander, dated 9 December 2014, subject Termination of the applicant's active duty service stating the applicant's last day of active service would be 31 January 2015. ss. A DA Form 67-10-1 for the period of 1 April 2014 through 25 January 2015, which shows: * his rater stated the applicant excelled * he displayed himself in a professional manner * he showed he was a true leader * his senior rater rated him as highly qualified * he had the potential for positions of additional responsibility * he should be promoted with peers tt. A DD Form 149 amending his application of 17 November 2016 regarding the date of the filing of his GOMOR, which was 31 January 2014. uu. A character reference letter from the property book officer, dated 25 November 2013, which states: * she knew the applicant since November 2012 * the applicant was a brand new Transportation officer with basic supply knowledge when he assumed his position * he was eager to learn from her experience and put that knowledge to work for his unit * his leadership enabled his section to make significant strides in reducing his commander's property book by turning in equipment * his eagerness for self-improvement and dedication to the unit was displayed by the applicant and indicated great potential for him vv. A character reference letter from his professor of military science, dated 19 November 2013, which states: * he served with the applicant at the University of Miami * he was one of their top leaders of more than 200 cadets * his performance academically, physically, and militarily earned him the privilege of service as an active duty officer * the applicant would contribute significantly to the Army and any unit he served in * he was confident the applicant would come out of the experience of the BOI a stronger and more resilient leader ww. A character reference leader from the brigade S-3, dated 22 November 2013, which states: * he knew the applicant since November 2012 * he interacted with the applicant on a weekly basis * he found the applicant to be an extremely capable young officer * the applicant quickly learned the intricacies of his position and executed his functions to the fullest of his abilities * the applicant never complained nor failed to accomplish a task * he was an asset to the US Army * he was not one to repeat mistakes * any substantiated allegations were a result of inexperience and not willful misconduct * he recommended the applicant be censored in a manner that would allow him to learn from the experience and continue to serve as an Army Officer xx. A character letter from his Junior ROTC instructor, dated 5 December 2013, which states: * he knew the applicant since the applicant's sophomore year in high school * from the beginning he could see the applicant's potential to lead and that he had maturity to know what he wasted and to work to get it * his intelligence and push to succeed was remarkable * the applicant was one of his top 5 in a program of over 500 cadets * the applicant had the urge to learn more and be better * he was driven from very young to accomplish his lifelong dream to become an officer * young people make mistakes * if the Army would allow the applicant to learn from his mistake he would not let them down * he would make it his life mission to make the Army proud * if the applicant was given the opportunity to continue his career in the Army, he would continue to strive to be one of the very best * the Army would not have any regrets yy. A character reference letter from the NCO instructor of his Junior ROTC program, dated 30 November 2013, which states: * he knew the applicant for over 8 years as a student and a young adult * he was a superior member of the student body and showed outstanding accomplishments in numerous areas * his leadership, commitment and dedication were instrumental in the battalion's exception performance during his 4 years with the program * he consistently displayed determination and resolution to improve the high school and surrounding community * he won various awards for his achievements, which led him to receive an ROTC scholarship * he was well liked by his fellow classmates and teachers * he was a true leader in every sense of the word * he would undoubtedly continue to prove to be an exceptional person * the applicant was an exception young man who would be successful in any capacity zz. A charter reference from an assistant instructor in the Department of Political Science at the University of Miami, dated 3 December 2013, which states: * the applicant was an exceptionally fine student * he earned an A minus in the classes he took with the instructor * the instructor was an openly punitive grader * the median grade in his class was usually a B minus * he routinely handed out Ds and Fs * only 10 percent of the class fared better than the applicant * about 20 percent of all of his classes have the good sense to drop his course in the first week * another 10 percent drop out over the course of the term * the applicant didn't always receive good grades * he had to redouble his efforts to do well * the workload in the seminars was at a graduate level * the applicant was always prepared, honest, and direct * despite the applicant's rough edges, he was a capable and promising person and could be a great contribution to the US Army * the Army should do their utmost to retain the applicant aaa. The applicant's DD Form 214, which shows, he was discharged as a 2LT on 31 January 2015 for non-selection, permanent promotion. The separation authority is listed as AR 600-8-24, paragraph 5-9. bbb. Orders published by Headquarters, United States Army Garrison, Fort Bragg, dated 11 September 2013 deploying the applicant in support of Operation Enduring Freedom, effective 4 September 2013, for a period not to exceed 365 days. ccc. Orders , published by Headquarters, United States Army Garrison, Fort Bragg, dated 11 March 2014, deploying the applicant in support of Operation Enduring Freedom, effective 22 March 2014, for a period not to exceed 365 days. 8. See applicable references below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board reviewed the applicant’s contentions, his complaint and the Court’s remand order, and the evidence of record. The Board found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically retroactive promotion to O-2/First Lieutenant (1LT) with back pay, amendment of the DD Form 214 to reflect voluntary discharge from active duty as a 1LT, and retroactive appointment in the U.S. Army Reserve (USAR) with back pay. However, the Board found there is an error with respect to the separation authority listed on the applicant’s DD Form 214 warranting correction. 3. With respect to the request for retroactive promotion to O-2/1LT, the Board found such relief outside the scope of the ABCMR’s authority to effectuate. The ABCMR does not have the authority to correct records to show an officer has been appointed to a certain grade when that officer has not been appointed to that grade by the President, with Senate consent when required, or Secretary of Defense. The President has delegated the authority to appointment officers in the grade of O-3/Captain (CPT) and below to the Secretary of Defense. The authority to promote said officers has not been delegated to the Service Secretary level. The applicant was not promoted to O-2/1LT prior to his discharge and the ABCMR lacks the authority to promote him to 1LT. As such, the Board found relief was not available with respect to the requested retroactive promotion to O-2/1LT. The Board found that appointment to the USAR as an O-2/1LT was similarly outside the scope of its authority. 4. The Board further found the applicant has not demonstrated by a preponderance of the evidence that he was improperly or wrongfully discharged from service. The evidence reflects that, while the applicant was retained by a Board of Inquiry (BOI), the General Officer Memorandum of Reprimand (GOMOR), dated 28 October 2013, and referred Officer Evaluation Report (OER), for the period from 11 May 2012 through 6 September 2013, remains in his official military personnel file (OMPF). The Board found that, contrary to the applicant’s contention that he was wrongfully discharged for misconduct/substandard performance under AR 600-8-24, chapter 4, the applicant was separated from service based on non-selection for promotion to O-2/1LT. Retention by a BOI does not insulate an officer from consideration of the underlying derogatory information, reflecting fraternization with several junior enlisted Soldiers and an improper relationship with a junior enlisted Soldier, during the promotion process. The Board found the greater weight of the evidence did not reflect an error or injustice in the promotion consideration process and that DOD policy and Army regulations regarding consideration of officers for promotion to O-2/1LT were complied with. Relatedly, the Board found the applicant’s contention that he was not reassigned as directed by the BOI outweighed by the other evidence of record. A 27 February 2014 personnel action (DA Form 4187) reflects the applicant was transferred to a different battalion. Because the applicant was properly separated from service based on non-selection for promotion to O-2/1LT, the Board found reinstatement in service, back pay, and appointment in the USAR not warranted. 5. The Board found there is an error in the separation authority listed on the DD Form 214 warranting correction. The separation authority listed on the DD Form 214 is AR 600-8-24, paragraph 5-9; however, this is the separation authority for processing commissioned officers and chief warrant officers twice non-selected for promotion to the grades of CPT, MAJ, LTC, CW3, and CW4. Based on the applicant’s status as a O- 1/Second Lieutenant (2LT), the appropriate separation authority is AR 600-8-24, paragraph 5-11, which prescribes procedures for separation of officers not recommended for promotion to the grade of 1LT or CW2 pursuant to AR 600-8-29, chapter 3. The Board determined that the separation authority on the DD Form 214 should be corrected to accurately reflect the basis of the applicant’s separation. 6. The applicant submitted two prior ABCMR decisions, dated in 2001 and 2011, to support his contentions. The ABCMR reviewed these decisions and found them distinguishable from the facts of this case and outweighed by the other evidence of record. In the 2001 decision, the ABCMR adjusted the date of rank to 1LT of an applicant who had been properly promoted. The current applicant was not promoted and, as discussed above, that authority has not been delegated to the Service Departments. In the 2011 decision, the ABCMR denied relief on the basis that the applicant was in a nonpromotable status from 2008 until his involuntary elimination based on misconduct. As discussed above, the current applicant was not involuntarily eliminated for misconduct, but rather separated based on non-selection for promotion. The Board found neither case to be dispositive to the issues before the ABCMR. 7. Finally, though not raised by the applicant, the Board reaffirms and incorporates by reference the previous denial of removal of the GOMOR and OER for the reasons articulated by the ABCMR in its prior decision. 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, with the exception of the correction stated in the Administrative Note(s) that follow, 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. ADMINISTRATIVE NOTE(S): During the review of the case file, the Board determined the presence of an administrative error that requires the following amendment to the applicant’s DD Form 214 for the period of service ending 31 January 2015 item 25 (Separation Authority) – “AR 600-8-24, paragraph 5-11” vice “AR 600-8-24, paragraph 5-9.”? REFERENCES: 1. Title 10, United States Code (USC), section 1552(a)(1), states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. 2. Pursuant to Article II, section 2, clause 2 of the United States Constitution (the Appointments Clause), the ABCMR may not appoint (promote) an officer to a higher grade. The President appoints, with the advice and consent of the Senate when required, officers of the United States. In cases of officers in the grade of O-3 and below, Title 10, USC, section 531 vests the appointment authority in the President alone without the advice and consent of the Senate. Via Executive Order 13384, the President has delegated the authority to appoint officers in the grades of O-3 and below to the Secretary of Defense. In the case of promotion officers in the grade of O-3 and below, the Secretary of the Military Department concerned provides a list of officers for appointment to the Secretary of Defense for signature. These policies and procedures are outlined in Department of Defense Instruction (DODI) 1320.04 (3 January 2014). 3. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10, USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. Title 10, USC, section 624(d) provides situations in which the appointment of an officer may be delayed, including: an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer; or, a board of officers has been convened under Title 10, USC, sections 1181 et seq. to review the record of the officer. If disciplinary action is not taken against the officer or if the officer is not separated by the Secretary of the military department concerned as the result of having been required to show cause for retention, then the officer shall be retained on the promotion list and shall, upon promotion to the next higher grade, have the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the active-duty list as the officer would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. If the Secretary makes such a determination, the Secretary may adjust such date of rank, effective date of pay and allowances, and position on the active-duty list as the Secretary considers appropriate under the circumstances. c. Title 10, USC, section 741(d)(4) allows the Secretary concerned to adjust the date of rank of an officer appointed to a higher grade under Title 10, USC, section 624(a) if the appointment is delayed by reason of unusual circumstances that caused an unintended delay in the processing or approval of the report of a promotion selection board or promotion list. d. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer ... appointed to a higher grade ... if the appointment of that officer to the higher grade is delayed by unusual circumstances." 4. Title 10, USC, section 624(a)(3), states, except as provided in subsection (d), officers to be promoted to the grade of 1LT shall be promoted in accordance with regulations prescribed by the Secretary concerned. 5. Title 10, USC, section 630 allows for discharge, under regulations prescribed by the Secretary of Defense, of commissioned officers with less than six years of active commissioned service or found not qualified for promotion for first lieutenant. 6. DODI 1320.10 (6 February 2014) prescribes policy and procedures for the discharge of commissioned officers not qualified for promotion to the grade of 1LT or Lieutenant (Junior Grade). It is DOD policy to discharge officers who are not qualified for promotion to 1LT, while recognizing that such officers are new to commissioned military service and should be afforded a reasonable opportunity to overcome their deficiencies before discharge action is taken. An officer found unqualified for promotion to the grade of 1LT will be retained for a minimum of six months after the date on which the promotion would have occurred unless retention is inconsistent with good order and discipline. If an officer does not qualify for promotion at any time after the completion of the six-month retention period, he or she may be discharged under the regulations and procedures prescribed by the Secretary of the Military Department concerned. 7. Army Regulation 15-185 (ABCMR), states in paragraph 2-4, applicants must file an application within 3 years after an alleged error or injustice is discovered or reasonably should have been discovered. The ABCMR may deny an untimely application. The ABCMR may excuse untimely filing in the interest of justice. 8. Army Regulation 600-8-24 (Officer Transfers and Discharges), which states: a. In paragraph 4-2, elimination action may or will be initiated based on substandard performance of duty; misconduct, moral or professional, dereliction, or in the interests of national security; or, derogatory information. b. In paragraph 4-4b, no officer will be considered for elimination for reasons stated in paragraph 4-2 because of conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the Service. For purposes of this paragraph, an officer will be considered to have been the subject of elimination proceedings only if allegations against the officer were acted on by a BOI. c. In paragraph 5-9a, commissioned officers and chief warrant officers on the active duty list twice non-selected for promotion to the grade of CPT, MAJ, LTC, CW3, or CW4 will be involuntarily released or discharged unless they are selectively continued (AR 600-8-29, paragraph 1-14), within two years of retirement (completes 18 or more years of active federal service (AFS) on their scheduled release date), retired, or a health professions officer pending completion of an ADSO. d. In paragraph 5-11, an active duty list officer not recommended for promotion to the grade of 1LT or CW2 (AR 800-8-29, chapter 3) will be separated not later than 90 calendar days after the Promotion Review Authority approves the nonrecommendation for promotion. 9. Army Regulation 600-8-29 (Officer Promotions), which states: a. In paragraph 1-10c(3), the law establishes no minimum time in grade (TIG) requirements for promotion; however, an officer must have at least 18 months TIG to be promotion to 1LT and two years TIG to be promoted to CPT. The TIG requirement for promotion to 1LT has been extended to two years by the authority of the Secretary of the Army. b. In paragraph 1-13b(1), 2LTs found not qualified for promotion by the promotion approval authority (LTC or higher commander, including commanders frocked to LTC) will be retained for six months after the officer's original promotion eligibility date. The promotion review authority (the first officer in the officer’s chain of command with general court-martial convening authority) may waive this requirement and direct immediate processing for separation if the promotion review authority determines the officer's retention is inconsistent with good order and discipline. c. In paragraph 1-13b(2), 2LTs found not qualified for promotion at their promotion eligibility date but later found qualified for promotion within the six month retention period will be promoted on the day the officer is found qualified for promotion by the promotion approval authority. d. In paragraph 1-13b(3), 2LTs who have not been promoted at the end of the six month retention period will be processed for separation under the provisions of AR 600- 8-24, paragraph 4-2a(2). e. In paragraph 1-16c, promotions to 1LT will use DA Form 78. f. In paragraph 1-19a, reasons an officer's promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotions orders) include when the officer is under investigation that may result in disciplinary action of any kind being taken against him or her, under proceedings that may result in administrative elimination or discharge under other than honorable conditions, or under suspension of favorable personnel actions (AR 600-8-2). g. In paragraph 1-20a, the promotion of any officer who is in a non-promotable status is automatically delayed. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay. Delays under this provision will be resolved within six months of the date the officer would have been promotion. An officer’s promotion will not be delayed more than six months unless the Secretary of the Army or designee grants a further delay. h. In paragraph 1-21a and 1-21b(5), when a delay in promotion is ended, the promotion approval authority will determine if the officer was in fact unqualified for promotion during all or part of the delay and will adjust the date of rank and effective date of promotion accordingly. Information required to support the decision includes date that the GOMOR was directed to be filed in the officer's OMPF not the date the memorandum is actually imposed or filed. i. In paragraph 2-1c, the 2LT active duty date of rank of ROTC cadets appointed as Regular Army 2LTs in May or June of any year is the same as the US Military Academy main graduation date for that year. j. In paragraph 3-1a(1), an ROTC graduate who is appointed and enters active duty in the month of May or June of the same year his or her PED will be 18 months from the United States Military Academy graduation of the year the officer entered active duty. k. In paragraph 3-5b, when a promotion authority disapproves promotion to 1LT they must process a DA Form 78 not later than the PED. l. In paragraph 3-5c, the recommending authority and the promotion authority will fully explain the reasons for the recommendation on the DA Form 78. The promotion review authority will take final action on cases on which the promotion approval authority has recommended against promotion. Denials for promotion to 1LT will be held in abeyance for six months. If at the end of six months promotion is still denied, the promotion review authority must make a determination whether or not to promotion. The decision of the promotion review authority is final. ABCMR Record of Proceedings (cont) AR20200001304 19