IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220003594 APPLICANT REQUESTS: promotion to the rank/grade of captain (CPT)/O-3 at the time of retirement. A personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Privacy Release form * Fiscal Year 18 (FY18), Captain, Army Competitive Categories, Selection Board results * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 19 April 2021 * DA Form 5893 (Soldiers Medical Evaluation Board/PEB Counseling Checklist), 23 April 2021 * Headquarters, U.S. Army Medical Department Activity letter, 23 April 2021 * Memorandum – Subject: Removal from the Temporary Disability Retirement List (TDRL) Notification, 19 May 2021 * Orders Number D139-03, 19 May 2021 * Self-Authored letter * Officer Record Brief FACTS: 1. The applicant states in pertinent part that processing delays (removal of an adverse action flag) resulted in him being removed from the CPT promotion list prior to him being medically retired. This action caused him to be retired as a first lieutenant (1LT)/O-2 rather than a CPT/O-3. 2. A review of the applicant's available service records reflects the following: a. On 26 August 2015, Headquarters, U.S. Army Maneuver Center of Excellence issued Orders Number 15238-344 ordering the applicant to active duty with a 22 September 2015 reporting date. b. On 14 September 2015, the applicant was appointed and commissioned as a second lieutenant (2LT)/O-1 in the Regular Army. c. On 21 February 2017, Headquarters, U.S. Army Human Resources Command issued Orders Number 052-043 announcing the applicant's promotion to 1LT with a Date of Rank (DOR) of 10 March 2017. d. On 19 August 2018, a Headquarters Department of the Army (HQDA) Suspension from Favorable Personnel Actions (SFPA) Flag was initiated on the applicant; flag code "F" = Removal from Selection List. e. On 5 June 2019, an Informal PEB convened finding the applicant physically unfit for continued military service with a recommendation that he be placed on the TDRL with a reexamination to occur in December 2020. The applicant concurred with the PEB's findings and waived his rights to a formal hearing. f. On 1 July 2019, Headquarters, U.S. Army Garrison, AK issued Orders Number 182-0200 placing the applicant on the TDRL, effective 22 September 2019. g. On 21 September 2019, the applicant was medically retired from military service at the rank of 1LT and placed on the TDRL. 3. The applicant provides the following a: a. Privacy Release form reflective of the applicant seeking the assistance of his Congressional representative with his requested relief. b. FY18, Captain, Army Competitive Categories, Selection Board results reflective of the applicant being listed as one of the officers selected for promotion to CPT. c. DA Form 5893 dated 23 April 2021, reflective of a record of the disability evaluation system explanation to the applicant. d. Headquarters, U.S. Army Medical Department Activity letter, dated 23 April 2021, reflective of the applicant being advised of the results of the informal PEB. e. Memorandum – Subject: Removal from the TDRL Notification, dated 19 May 2021, reflective of the applicant being advised that he was being removed from the TDRL and permanently retired. f. Orders Number D139-03, dated 19 May 2021, reflective of the applicant being removed from the TDRL on 19 May 2021 and subsequently permanently retired at the rank of 1LT. g. Self-authored letter from Major (MAJ) an officer that previously served with the applicant prior to him being medically retired. MAJ recalls that the applicant was plagued by an ongoing legal issue, which was dropped by the county; however, the applicant was punished/reprimanded by his leadership. MAJ notes that an investigation was conducted, and the applicant's promotion was placed on hold pending the conclusion of this investigation. He contests that the applicant was not properly counseled regarding the imposed flag nor advised when the flag would be lifted. MAJ provides that the flag was never lifted despite the conclusion of the investigation. This document is provided in its entirety for the Board's review within the supporting documents. 4. On 31 October 2022, the U.S. Army Human Resources Command, Chief, Officer Promotions-Special Actions provided an advisory opinion wherein he notes that although the applicant was promotable at the time of discharge, the adverse action flag which his chain of command imposed was not resolved prior to his separation. The Office of Promotions is required to validate the promotion eligibility of an officer based on final disposition of a unit flag, and further required to coordinate with the Directorate, Military Personnel Management for further determination as applicable. As such, a promotion to the rank of CPT cannot be granted on the basis that the applicant's flag was not removed. Further, all officers on an Army Promotion List (APL) must meet exemplary conduct standards prior to their authorized pin-on date. The applicant was initially notified on 18 December 2018 of the delay of promotion, and further provided instructions for actions necessary to remove the flag. A subsequent notification was sent to him on 8 February 2019. 5. On 1 November 2022, the applicant was provided a copy of the advisory opinion and afforded 15 days to provide comments. 6. On 2 December 2022, the applicant responded to the advisory opinion again noting that the flag was not properly removed in a timely manner. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The applicant contends that processing delays (removal of an adverse action flag) resulted in him being removed from the CPT promotion list prior to him being medically retired. This action caused him to be retired as a first lieutenant (1LT) rather than a CPT. The Board reviewed and agreed with the HRC advisory opinion that although the applicant was promotable at the time of discharge, the adverse action flag which his chain of command imposed was not resolved prior to his separation. The Office of Promotions is required to validate the promotion eligibility of an officer based on final disposition of a unit flag, and further required to coordinate with the Directorate, Military Personnel Management for further determination as applicable. As such, a promotion to the rank of CPT cannot be granted on the basis that the applicant's flag was not removed. Further, all officers on an Army Promotion List (APL) must meet exemplary conduct standards prior to their authorized pin-on date. The applicant was initially notified on 18 December 2018 of the delay of promotion, and further provided instructions for actions necessary to remove the flag. A subsequent notification was sent to him on 8 February 2019. 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, 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. Army Regulation (AR) 600-8-29 (Officer Promotions) paragraph 3-7 (Delay of Promotion) provides that 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. The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible. If an officer is in a non-promotable status at the time an officer's name is announced on a promotion list, the officer's commander will immediately notify him or her of the reason for the delay. If this is impractical, written notice will be given as soon as possible. Delays under this provision will be resolved within 6 months of the date the officer would have been promoted. An officer's promotion will not be delayed more than 6 months unless the SECARMY or the SECARMY's designee grants a further delay. a. The CG, HRC, or his or her designee, will monitor cases involving delay and is delegated the authority to grant a further period of delay, not to exceed 18 months total, in cases involving non-promotable over-weight officers. A further period of delay is deemed to have been granted in any case that has been referred to a Promotion Review Board (PRB), or in cases in which sworn charges against the officer have been received by an officer exercising general court-martial jurisdiction over the officer and the charges have not been disposed of. The delay in such cases extends until the SECARMY takes final action. In no case may an officer's promotion be delayed more than 90 days after final action in any court-martial or criminal case against the officer in civilian court or more than 18 months after the date on which the officer would otherwise have been appointed, whichever is later. b. When a DA Form 268 (Suspension from Favorable Personnel Actions (FLAG)) is field initiated for adverse actions or a referred evaluation report, and the officer is on a promotion list, only HQDA may close the flagging action. Once the case has been completed, the unit will forward a copy of the open DA Form 268 with a description of action taken against the individual. c. Paragraph 3-6 (Non-promotable Status) provides that an officer is in a non- promotable status when they are under investigation that may result in disciplinary action of any kind or the subject of a criminal proceeding pending in civilian court. d. Paragraph 7-3 (Suspension of Favorable Personnel Actions) provides that the Chief, 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 SECARMY or the SECARMY's designee) when the President or the President's designee decides whether the officer should be removed from the promotion list. 2. Title 10, United States Code, section 1372 (Grade on Retirement for Physical Disability: Members of Armed Forces) provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: * the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired * the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired * the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination * the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003594 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1