IN THE CASE OF: BOARD DATE: 4 April 2022 DOCKET NUMBER: AR20210012588 APPLICANT REQUESTS: correction of his Date of Rank (DOR) for promotion to the rank/grade of major (MAJ)/O-4 to show 1 January 2020 with 14 months of active duty service as a MAJ. Removal of the "F" code from his Officer Record Brief (ORB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record •Email correspondence •Promotion orders request •Memorandum, Subject: Promotion Review Board AP2008-19, Fiscal Year 2018,Major, Army Operations, Promotion Selection Board, dated 15 April 2021 •After retirement promotion orders FACTS: 1.The applicant states an error occurred due to a decision by the Secretary of theArmy (SA) on the promotion board not being completed by the date of retirement. Therequested DOR is the day his sequence number from the 2018 MAJ OperationsPromotion Selection Board (PSB) was selected in accordance with current U.S. ArmyHuman Resources Command (HRC) policies. In accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-1, ''A commissioned officer in therank of MAJ and below may voluntarily retire in the highest rank served satisfactorily onactive duty for 6 or more months unless entitled by law to a higher grade (see Title 10United States Code, section 1370)''. Based on this regulation and requested date ofpromotion, he meets the time qualifications to retire as a MAJ. a.On 16 April 2021, he received notification from the Officer Promotions SpecialActions (OPSA) that his Promotion Review Board (PRB) was completed via email. The PRB resulted in the SA electing to retain him on the 2018 promotion board and the DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) removing his flag. The email also stated he would be contacted by the Active Officer Promotion Orders no later than then 10 business days. He was not contacted by anyone from HRC. b. On 10 May 2021, after waiting over 10 business days he reached out via telephone to HRC to ask for help on his case. He was instructed to contact Mr. in retirement services and given an email to contact him with no response. c. On 19 May 2021, he emailed his former G-1 Deputy, MAJ , who reached out the Active Officer Promotion Orders. Mrs. from the active component Department of the Army Special Orders team suggested an Army Review Board to get his promotion fixed. Active Officer Promotions Orders were unable to produce his promotion orders due to his retirement moving out of the human resources systems and the Defense Finance and Accounting Service (DFAS) systems. d. On 24 May 2021, he emailed HRC again asking for help in getting his promotion orders. To date he has not received any communication from HRC in response to his inquiries except the response to his former G-1. e.Circumstances of his request for promotion: (1)On 2 June 2019, he was arrested for Driving under the Influence (DUI) at . He was subsequently flagged in accordance with Army regulations and his promotion withheld pending a PRB. The PRB officially started on 27 April 2020 and was completed on 15 April 2021 with the SA deciding to retain him on the 2018 MAJ Active Component Promotion list and removing his flag coded as erroneous. (2) He retired from active duty on 1 March 2021. Due to his retirement, he had been moved from the Active Officer to Retired Officer systems and, based on the information from HRC to the G-1, he was not able to be moved due to system access and limitations. According to AR 600-8-29 (Officer Promotions), paragraph 7-11, ''An officer or warrant officer retained on the promotion list by the SA shall, upon such promotion, have the same DOR, the same effective date for pay and allowances in the higher grade to which appointed, and the same position on the active-duty list as he or she would have had if no delay had intervened, unless the SA determines that the officer was unqualified for promotion for any part of the delay." The SA determined he was not unqualified for promotion for any part of the delay. (3) An Army Grade Determination Board was conducted prior to his retirement. The PRB had not been completed, specifically the SA had not decided on his case. This piece of information was unavailable based on his retirement date and the length of the PRB timeline. 2.A review of the applicant's official records shows the following: a.On 2 April 2009, having had prior Regular Army enlisted service, the applicantwas appointed as a Regular Army commissioned officer and executed an oath of office. b.On 26 September 2010, Orders Number 269-076, issued by HRC, promoted theapplicant to the rank/grade of first lieutenant (1LT)/O-2. c.On 15 October 2012, Orders Number 289-042, issued by HRC, promoted theapplicant to the rank/grade of captain (CPT)/O-3, effective on with a DOR of 1 November 2012. d.On 17 July 2019, the applicant was reprimanded by the senior commander, U.S.Military Academy, West Point, for operating a motor vehicle while intoxicated. The senior commander directed the reprimand be placed permanently in the applicant's Army Military Human Resources Record. e.On 28 February 2021, the applicant was honorably released from active duty byreason of sufficient service for retirement. DD Form 214 (Certificate of Release or Discharge from Active Duty), item 4a (Grade, Rate r Rank) shows "CPT." f.On 15 April 2021, the SA directed the applicant be retained on the Fiscal Year2018 MAJ, Operations promotion list, pursuant to AR 600-8-29, paragraph 7-8c. g.The applicant's most recent ORB shows the flag code "F" removal from selectionlist. 3.The applicant provides: a.Email correspondence from the West Point Deputy, G-1 which informed him the applicant would have to request his promotion correction through the Board. b. Promotion orders request wherein the applicant was inquiring with HRC pertaining to his promotion orders. c. After retirement promotions orders email wherein the applicant was again inquiring about his promotion orders and was directed to contact Mr. . 4.On 7 January 2022, in the processing of this case an advisory opinion was obtainedfrom HRC, Chief Promotions Board Announcements, Support and Promotion Orders,who opined: a.Based on a review of the documents received, our current records, laws,regulations, policies and the systems available to HRC Officer Promotions Branch we find that the applicant's request for promotion to MAJ under the FY18, MAJ, Army, Active Component Promotion Selection Board does have merit in part. b.Had HRC Officer Promotions Branch, notified and processed his PRB within afair and reasonable amount of time, there would have been more than a reasonable chance that he would have been promoted to MAJ prior to his retirement date. Because he was not denied promotion, we recommend that he be granted full relief and his DOR and effective date be retroactive to his original promotion eligibility date of 1 January 2020. The Headquarters Department of the Army flag code (F) imposed on him during the PRB process was not erroneous, nor was it a wrongful act, it is mandated and clarified in AR 600-8-29 paragraph 7-3. Its closure in this manner as erroneous (Z) is done as a precaution and practice to ensure its removal from all Army systems upon the outcome and closure of the PRB. c.Given the applicant's current retirement status, any adjustment of his rank andDOR for pay entitlements of his retirement, may occur upon a directive from the Army Board of Corrections of Military Records (unless otherwise proven ineligible). If a favorable directive is mandated, he would need to submit a DD 215 for correction of his DD 214. Corrections of the DD Forms 214 are not within our purview, there, we recommend that he review the information at: ttps://www.hrc.army.mil/TAGD/Correction to Veterans Military Records, before submitting his correction request. 5.On 11 January 2022, by email, the applicant responded to the advisory opinionconcurring with the recommendation. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents and the evidence foundwithin the military record, the Board determined that relief was warranted. The Boardcarefully considered the applicant’s contentions, military record and regulatoryguidance. The Board considered the review and conclusion of the Human ResourceCommand Advisory Opinion. One possible outcome was to deny the request. However,the majority of the Board members concurred with the advisory finding that at no fault ofthe applicant, he was neither timely notified nor his PRB timely processed. Had thoseactions been completed in accordance with regulatory guidance, there would have beena more than a reasonable chance that the applicant would have been promoted prior tohis retirement date. One Board member citing statutory requirements determined theevidence presented insufficient to warrant a recommendation for relief. Based on theponderance of the documentation available for review, the Board determined theevidence presented sufficient to warrant a recommendation for relief. 2.Prior to closing the case, the Board did note that the applicant’s most recent ORBshows the flag code "F" had been removed and determined no further action by theBoard was required. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for relief. As a result, the Board recommends that all Department ofthe Army records of the individual concerned be corrected by amending his retirementorder and DD214 for the period ending showing in•Item 4a (Grade, Rate or Rank): MAJ•Item 4b (Pay Grade): 004•Item 12i (Effective Date of Pay Grade): 1 January 20202.The Board further determined that the applicant is entitled to all back pay andallowances effective the date of promotion, the amount of which to be determined by theDefense Finance and Accounting Service. Microsoft Office Signature Line... 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): N/A. REFERENCES: 1.AR 6008-29 (Officer Promotions) states: a.Paragraph 7-3 (Suspension of favorable personnel actions) the Chief,Department of the Army (DA) Promotion Branch, HRC will impose a suspension of favorable personnel actions (DA Form 268) in accordance with AR 600–8–2 upon identification of a promotable officer in a non-promotable status or upon referral of a case to a PRB. The failure to prepare a DA Form 268 does not invalidate referral of the action to a PRB, or subsequent action relating to the PRB (including removal from a promotion list). The Chief, DA Promotion Branch will remove the suspension of favorable personnel actions (if not earlier removed by the SA or the SA's designee) when the President or the President's designee decides whether the officer should be removed from the promotion list. The provisions of paragraphs 3–6 and 3–7 regarding non-promotable status and delay of promotions apply. b.Paragraph 7-4 (Referral and convening authority) a PRB will normally convenewithin 120 days after a case is referred to a PRB. The Deputy Chief of Staff, G–1 or a designee (normally the Chief, DA Promotions Branch) are authorized to refer cases to a PRB except those involving promotion to or within General Officer grade. The board is convened under authority of a standing Memorandum of Instruction approved by the SA. The referral authority may not be delegated below the DMPM in cases where a PRB recommendation is based solely on adverse information received by HQDA but not filed in the AMHRR, that has been substantiated, is relevant, and might reasonably and materially affect a promotion recommendation. c.Paragraph 7-11 (Effect on promotion) states an officer or warrant officer retainedon the promotion list by the SA shall, upon such promotion, have the same DOR, the same effective date for pay and allowances in the higher grade to which appointed, and the same position on the active-duty list as he or she would have had if no delay had intervened, unless the SA determines that the officer was unqualified for promotion for any part of the delay. If the SA makes such a determination, the Secretary may adjust such DOR, effective date of pay and allowances, and position on the active-duty list as the Secretary considers appropriate under the circumstances. 2.AR 15185 (Army Board for Correction of Military Records (ABCMR)) states theArmy, by law, may pay claims for amounts due to applicants as a result of correction ofmilitary records. The ABCMR will furnish DFAS copies of decisions potentially affectingmonetary entitlement or benefits. The DFAS will treat such decisions as claims forpayment by or on behalf of the applicant. The DFAS will settle claims on the basis of thecorrected military record. The DFAS will compute the amount due, if any. The DFASmay require applicants to furnish additional information to establish their status asproper parties to the claim and to aid in deciding amounts due. Earnings received fromcivilian employment during any period for which active duty pay and allowances are payable will be deducted. The applicant's acceptance of a settlement fully satisfies the claim concerned. 3. AR 635-8 (Separation Processing and Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or dis-charge. Source documents will consist of separation orders, and any other document authorized for filing in the Army Military Human Resource Record. Block 4; verify that active duty grade or rank and pay grade are accurate at time of separation. 4. DA Pamphlet 600-8-104 (Army Military Human Resource Record Management) states: a. The individual record brief, also known as the enlisted record brief, DA Form 4037 (Officer Record Brief), the Reserve Component's DA Form 2–1 (Personnel Qualification Record), the Soldier Record Brief, or any version of a Soldier's individual record brief (hereafter known as the record brief), is a one-page summary of the Soldier's qualifications and career history. The record brief is a living document that is frequently updated. Each record brief is a snapshot of the Soldier's career as it was at the time the record brief was produced. b. Data on the record brief reflects events concerning a Soldier’s military career. These events are routinely updated or reported by the unit, the Military Personnel Division, or other human resources agencies. The record brief will be reviewed, in conjunction with the Record Manager (RM), at least annually as part of the personnel records review outlined in chapter 4 of this publication. Errors, omissions, or new changes should be corrected promptly. RMs will validate the update by checking Integrated Personnel Electronic Records Management System (iPERMS) to ensure the appropriate supporting document(s) are in the Army Military Human Resources Record (AMHRR). If the supporting document is not in the AMHRR, the RM will request the documents from the Soldier or originating office. The RM will, depending upon the data involved, make the update/correction in the appropriate system of record. The RM will Web upload supporting document(s) to iPERMS per the required document referenced in AR 600–8–104. 5. Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned Officers) states the Secretary of the Military Department concerned may adjust the date of rank of an officer, except a general or flag officer, appointed to a higher grade under Title 10, United States Code, sections 624(a) or 14308(a) 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 date of rank to be adjusted. //NOTHING FOLLOWS//