ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2021 DOCKET NUMBER: AR20210005619 APPLICANT REQUESTS: * correction of her records to show her date of rank (DOR) for the rank/grade of captain (CPT)/O-3 as 9 August 2017 * a video or telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 67-10-1 (Company Grade Plate, Officer Evaluation Report) for the period of 15 February 2014 thru 25 May 2014 * DA Form 67-10-1 for the period of 26 May 2014 thru 4 November 2014 * DA Form 67-10-1 for the period of 5 November 2014 thru 4 November 2015 * DA Form 67-10-1 for the period of 5 November 2015 thru 4 November 2016 * Memorandum, Subject: Law Enforcement Report – Final 00XX9-2013-CID0XX- 045XXX-8L1A/8L/7XX/7FXXX, dated 27 January 2017 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 8 March 2017 * DA Form 1559 (Inspector General (IG) Action Request), dated 8 August 2017 * Memorandum for Division Chief, Personnel Division, National Guard Bureau (NGB) acknowledgement letter, subject: Delay of Promotion and Referral to a Promotion Review Panel (PRP), dated 26 September 2017 * Sworn Statement by Applicant, dated 30 October 2017 * Statement by Ms. P-, dated 4 November 2017 * DA Form 67-10-1 for the period of 5 November 2016 thru 4 November 2017 * Statement by Ms. C-, dated 5 November 2017 * Statement by Ms. M-, dated 5 November 2017 * Statement by Ms. R-, dated 5 November 2017 * Memorandum for the PRP, Subject: Recommendation for the Applicant, dated 6 November 2017 * Letter from the Applicant, Subject: Delay of Promotion and PRP Rebuttal 15-16 November 2017, dated 9 November 2017 * DA Form 67-10-1, for the period of 5 November 2017 thru 2 June 2018 * Letter from the U.S. Army Criminal Investigation Command to the Applicant, dated 5 April 2019 * Secretary of the Army Memorandum, Subject: Army National Guard (ARNG) Federal Recognition Board PRP, dated 13 January 2020 * Secretary of Defense letter, dated 13 March 2020 * Email, dated 20 May 2020 FACTS: 1. The applicant states: a. She was placed on a delayed promotion board due to adverse findings involving a Criminal Investigation Division (CID) investigation pertaining to the Guard Recruiting Assistant Program (GRAP). b. She had no knowledge of being titled in a CID investigation until she was notified during the promotion process. She was not afforded her basic due process rights of notice of this adverse record and the right to respond to this CID report before her promotion board began. Once notified of the adverse file, she worked diligently with the CID office in Quantico, Virginia to have the file updated to "no action taken." c. It was apparent there was inaccurate information recorded during this investigation and she was promoted on the day the delayed promotion board determined she was not at fault and got the approved signatures. It took 947 days to make this determination of her complete innocence and her original scroll of 9 August 2017 was already published, so she was placed on an individual scroll the date her packet finally was approved on 13 March 2020. d. She worked in a CPT slot before 9 August 2017, and remained being underpaid the entire 947 days it took to complete the investigation and be promoted. While the delayed promotion took place, she worked CPT assignments and earned most qualified from the senior rater while being paid as a lieutenant pending the board results. e. She never committed a crime, she was never notified of the adverse findings after the investigation to rectify the matter, and the delayed promotion findings were not complete in a timely manner proving her innocence. f. She should be promoted to CPT with a date of 9 August 2017 which is the date her original scroll P06-17 was published. This was a delay of promotion pending results from the promotion review panel not a new promotion board due to non-select. Her results from the PRP were favorable due to the fact CID took "no action" involving the investigation. The PRP board was supposed to take 3-5 months and it actually took almost 3 years. 2. A review of the applicant's service record shows: a. On 15 April 2010, the applicant enlisted in the ARNG. b. DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Non- scholarship Cadet Contract), dated 11 March 2011, shows she was accepted into the ROTC program at the University of Central Arkansas. c. DA Form 71 (Oath of Office) shows she was appointed as a Reserve Commissioned Officer on 4 May 2013, as a second lieutenant (2LT)/O-1. d. Orders Number 154-842, issued by the Office of the Adjutant General (TAG), dated 3 June 2013, shows she was appointed in the ARNG as a 2LT. e. Special Orders Number 85, issued by the NGB, dated 22 April 2015, shows she was promoted to first lieutenant (1LT)/O-2, with an effective date of 4 November 2014. f. Orders Number 355-816, issued by TAG, dated 20 December 2016, shows she was promoted to CPT in the ARNG, with an effective date of 19 December 2016. 3. The applicant provides the following documents: a. DA Form 67-10-1 (Company Grade Plate, Officer Evaluation Report) for the period of 15 February 2014 thru 25 May 2014, shows she was rated as "Highly Qualified". b. DA Form 67-10-1 for the period of 26 May 2014 thru 4 November 2014, shows she was rated 'Highly Qualified." c. DA Form 67-10-1 for the period of 5 November 2014 thru 4 November 2015, shows she was rated "Highly Qualified." d. DA Form 67-10-1 for the period of 5 November 2015 thru 4 November 2016, shows she was rated "Highly Qualified". e. Memorandum, Subject: Law Enforcement Report – Final 00XX9-2013-CID0XX- 045XXX-8L1A/8L/7XX/7FXXX, dated 27 January 2017, although heavily redacted, states, in part, "On 15 November 2016, [the] Acting Deputy Staff Judge Advocate, Arkansas Army National Guard (ARARNG) opined there was probable cause to believe [applicant] committed the offenses of Larceny of Government Funds and Wire Fraud." f. DA Form 4833, dated 8 March 2017, shows the applicant was being referred for wire fraud and larceny of government funds. It also states, "…was briefed on this investigation and opined that while probable cause existed that the offenses were committed he would decline prosecution because the offenses were outside the statutes of limitations and the individual offenses not meeting [the minimum] levels or other issues affecting prospective merit." g. DA Form 1559 (IG Action Request), dated 8 August 2017, reflects that the applicant submitted an IG claim, which states: (1) "I am currently on full time orders as a 1LT promotable and I have no change in status but was told I would be taken off the promotion scroll if this case is not cleared. (2) I am facing administrative issues as a results of GRAP flags not being lifted. I participated in the GRAP program as a Regular Army in 2010. I assisted three friends with enlisting in the ARARNG. I followed all the proper guidelines and knew everyone personally. (3) I was not involved in any fraudulent activities involving the program. I was questioned by CID around two years ago and provided them a statement without any representation. I was told that everything looked good and my name would be removed from some sort of list and I would be cleared. I never followed up with the results. I recently found out that I failed my background check for promotion to CPT because of this case. (4) I was hoping you would be able to assist me so I can be cleared. My scroll has not yet been published but if I am unable to get this resolved I will be removed from the scroll and I will have to resubmit for promotion. I have been waiting for over six months to be promoted federally and I was unaware that anything was placed on my permanent record. We have attempted to contact the investigating officer over my case and we were told that it should have been closed out and there were no records found. (5) At this time, I am unsure if I was unfounded or not. At one point I was told that I was unfounded and my name was just not removed from the list in error, but I have no supporting documentation to prove that statement is accurate. After this investigation is complete I would like to be promoted when my current scroll is published or receive a backdate federally to the date the scroll will be published but if that cannot happen I would like to get this cleared so when I resubmit I will pass the background check with no issues involving this GRAP case." h. Memorandum for Division Chief, Personnel Division, NGB acknowledgement letter, Subject: Delay of Promotion and Referral to a PRP, dated 26 September 2017, shows the applicant acknowledged her receipt of the Delay of Promotion and Referral to a PRP memorandum. She initialed that she intended to submit a rebuttal. i. Sworn statement by applicant, dated 30 October 2017, which explains, in detail, the events in question. The complete statement is available for the Board's review. j. Statement by Ms. P-, dated 4 November 2017, states, "[Applicant] is the recruiting assistant I worked with when I joined the National Guard. [Applicant] and I have been friends since high school. She was helpful in providing all the information I needed to join. I am aware of the GRAP and [applicant] followed the proper procedures. I was the one that gave her my personal information. I worked with her before I went to the recruiter. CID never questioned me about the program at any time." k. DA Form 67-10-1 for the period of 5 November 2016 thru 4 November 2017, shows she was rated as "Most Qualified." l. Statement by Ms. C-, dated 5 November 2017, states, "I know [applicant] from being in athletics at the University of Central Arkansas where I played basketball and she ran track. We also worked at Walmart together. She did not share any money with me from the GRAP program. I was aware that she would receive funds for me signing up and I personally provided her my information. We sat down together and did the whole process together because she wanted me to know and understand that she was not using my information for anything other than that program as in why she needed my information. She was the reason I wanted to sign up for the military." m. Statement by Ms. M-, dated 5 November 2017, states, "My name is M- and I was recruited by [applicant]. I gave her permission to use my social security number and I did not receive any money from her. We were mutual friends through work. I am aware of GRAP and [applicant] did not violate any of the policies while working to get me in the National Guard. I never spoke with CID about this situation and this is the first time I have been asked to provide information about this case." n. Statement by Ms. R-, dated 5 November 2017, states, "My name is R-. [Applicant] was the person that got me interested in joining the military. I was aware that she was a recruiting assistant and I personally gave her my information to enter in the database so she could receive credit for getting me to join the National Guard." o. Memorandum for the PRP, Subject: Recommendation for the Applicant, dated 6 November 2017, shows the applicant's commanding officer recommended her for promotion for the PRP. It states, "[Applicant] is a professional Soldier ready for promotion to CPT. She consistently strives to be the best. She continues to excel which is evident by the awards she received during the last year. She received two Army Commendation Medals while serving as Military Entrance Processing Station Operation Officer and the other while serving as the Battalion S4. She learns quickly and is eager to achieve results. [Applicant] strives daily to live by the Army Values. She is disciplined and has high character. She is an excellent leader and a future company commander if given the opportunity. I highly recommend [applicant] for promotion to CPT. She will be a great asset to the ARARNG and the United States Army." p. Letter from the Applicant, Subject: Delay of Promotion and PRP Rebuttal 15-16 November 2017, dated 9 November 2017, states, in part: (1) "I was only investigated and nothing was proven during the questioning. I did participate in the GRAP and I followed all of the rules and procedures that were required. I have attached my sworn statement as well as the sworn statements of those I recruited. (2) This CID investigation is not a reflection of my military career and paints an inaccurate picture of my character. I have been awarded multiple awards over the few years I have served. I am currently attending the Active Duty CPT Career Course for Logistics and set to graduate on 29 March 2017. I was chosen over several peers across the ARARNG to attend this course based on excellent performance throughout my career. I have never had any negative remarks on any of my permanent files outside of this CID file. Attached is my officer record brief and all of my OER's. I have also attached a letter of recommendation from my battalion commander. I am a good officer and I participated in the GRAP in good faith. This inaccurate record does not reflect my service in the ARNG." q. DA Form 67-10-1, for the period of 5 November 2017 thru 2 June 2018, shows she was rated "Most Qualified." r. Letter from the U.S. Army Criminal Investigation Command to the Applicant, dated 5 April 2019, states that this letter is in further response to the applicant's request for release of information from the files of the U.S. Criminal Investigation Command (USACIDC) and supplements their response of 27 February 2019, and states, "This partial denial, which is made on behalf of Major General, D- G-, Commander, USACIDC, the Initial Denial Authority for USACIDC records under the Freedom of Information Act, may be appealed to the Secretary of the Army." s. Secretary of the Army Memorandum, Subject: ARNG Federal Recognition Board PRP, dated 13 January 2020, states, "Effective immediately, I retain [applicant] on the ARNG appointment scroll and recommend she be appointed to CPT in the Reserve of the Army pursuant to Title 32, United States Code (USC), section 307." t. Secretary of Defense letter, dated 13 March 2020, shows the applicant was appointed in the ARNG to CPT. u. An email, dated 20 May 2020, from the ARNG, State Officer Personnel Manager to the applicant, advised the applicant on the procedures of going to the Army Board for Correction of Military Records for relief. ? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board further found the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board noted that the Secretary of the Military Department concerned may adjust the DOR of an officer if the appointment of that officer to the higher grade is delayed by unusual circumstances. In the applicant's case, her promotion was delayed due to an investigation and the time required for the Secretary of the Army to make his decision regarding her retention on the ARNG appointment scroll. The Board carefully reviewed the available records and agreed that the circumstances that led to the delay of her promotion were not unusual. Based on a preponderance of evidence, the Board determined the applicant's DOR for CPT is not in error or unjust. BOARD VOTE: Mr. 1 Mr. 2 Mr. 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.? REFERENCES: 1. Title 10, USC, section 14308(f), states the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal Recognition in the next higher grade in the ARNG shall be the date in which such Federal Recognition in that grade is so extended. 2. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes the policy, criteria, and procedures governing the promotion of commissioned officers of the ARNG. Chapter 8 pertains to promotion for other than general officers. a. Paragraph 8-1 (Responsibility) states promotion in the ARNG is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. b. Paragraph 8-3 (Promotion as a Reserve commissioned officer of the Army) provides that a commissioned officer who has been promoted by the State and extended Federal Recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army with assignment to the ARNG of the United States. 3. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers. Chapter 2 (Promotion Eligibility and Qualification Requirements), paragraph 2-1 (Consideration without a board action) states, the records of ARNG unit officers will be screened by the State and forwarded to the NGB for action. 4. Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned Officers) states the Secretary of the Military Department concerned may adjust the DOR of an officer, except a general or flag officer, appointed to a higher grade under Title 10, USC, sections 624(a) or 14308(a) (Promotions: how made) if the appointment of that officer to the higher grade is delayed by unusual circumstances. The Secretary of the Military Department concerned must determine that the unusual circumstance caused an unintended delay in processing or approval of the selection board report or promotion list in order for an officer's DOR to be adjusted. 5. AR 15-185 (Army Board for Correction of Military Records) 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. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005619 7 1