IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220004842 APPLICANT REQUESTS: promotion to the rank/grade of lieutenant colonel (LTC)/O-5. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter Response to Freedom of Information Act (FOIA) Request * Memorandum, Subject: Fiscal Year 2021 (FY21) LTC, Operations (OPS), Operations Support (OS), Force Sustainment (FS), and Information Dominance (ID) Promotion Selection Boards (PSB) and FY21 Major (MAJ), OPS, OS, FS, and ID Selective Continuation (SELCON) Selection Boards, 1 - 18 December 2020 for a Special Selection Board (SSB) Petition * Memorandum, Subject: FY 21 LTC SSB * Email SSB Denial FACTS: 1. The applicant states, in effect: a. Despite having a commendable service record, he was a non-select for promotion to LTC in the primary zone (PZ) and above zone boards. While Army policies concerning officers who are Serving In/Have Served (SI-HS) on the Joint Staff exists, and these were transmitted to the members of the board via the board instructions, it did not appear the policies were followed in the conduct of the PSB. He petitioned for an SSB through the U.S. Army Human Resources Command (HRC) but the request was denied. b. In conduct of the promotion board, there is a violation of Title 10, USC, section 662, (Promotion policy objectives for joint officers), which states "officers who are serving on, or have served on, the Joint Staff are expected, as a group, to be promoted to the next higher grade at a rate not less than the rate for officers of the same armed force in the same grade and competitive category who are serving on, or have served on, the headquarters staff of their armed force." c. The results of the board showed there was one individual in the PZ, within the ID competitive category, who met SI/HS Headquarters Department of the Army (HQDA) requirement. This individual was selected for promotion, thus having a 100 percent selection rate for those SI/HS HQDA. d. He was the only individual in the PZ, within the ID competitive category who met the SI/HS Joint Staff requirement. As stated, he was not selected for promotion, therefore the selection rate for those who are SI/HS in the Joint Staff was zero percent. This is inconsistent with the instructions to the board members as well as the policy objective set out in Title 10, USC, section 662. 2. The applicant's service records contain the following documents for the Board's consideration: a. On 14 May 2004, the applicant was appointed as a Reserve commissioned officer and executed an oath of office. b. Orders Number 245-013, published by HRC, dated 11 December 2014 promoted the applicant to the rank/grade of major (MAJ), effective on with a date of rank of 1 January 2015. c. DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the Command and General Staff Officer Course on 23 April 2015. d. DA Forms 67-10-2 (Officer Evaluation Report (OER) O4 - O5), when the applicant was in the rank of MAJ show: (1) From 13 August 2014 to 21 April 2016, the applicant was rated as proficient and highly qualified. His senior rater stated promote to LTC. (2) From 22 April 2016 to 11 July 2017, the applicant was rated as proficient and most qualified. His senior rater stated promote to LTC. (3) From 12 July 2017 to 30 May 2018, the applicant was rated as excels and highly qualified. His senior rater stated promote below the zone to LTC. (4) From 31 May 2018 to 30 May 2019, the applicant was rated as excels and most qualified. His senior rater stated promote to LTC now. (5) From 31 May 2019 to 31 May 2020 the applicant was assigned to the Joint Chiefs of Staff. He was rated as proficient and highly qualified. His senior rater stated promote now to LTC. (6) From 1 June 2020 to 31 May 2021 the applicant was assigned to the Joint Chiefs of Staff. He was rated as proficient and highly qualified. His senior rater stated promote to LTC. (7) From 1 June 2021 to 31 December 2021 the applicant was assigned to the Joint Chiefs of Staff. He was rated as proficient and highly qualified. His senior rater stated promote to LTC. (8) From 1 January 2022 to 9 September 2022 the applicant was assigned to the Joint Chiefs of Staff. He was rated as proficient and highly qualified. His senior rater stated promote to LTC now. 3. The applicant provides the following documents for the Board's consideration: a. A letter from the Office of the Deputy Chief of Staff G-1, dated 21 September 2021 which was in response to the applicant's FOIA request to HRC for a copy of his board file for the Fiscal Year (FY) 2021 LTC PSB, as well as all information seen, considered, and/or accessible to the board including but not limited to the instructions to the board members, names and ranks of board members, and any information, notes, remarks, and observations specific to the applicant. The records requested were delivered to the applicant. Board member names and other information identifying third parties were redacted. The memorandum to the board members and statistical run for in/above zone matrix is available for the Board's consideration in the supporting documents. b. An undated memorandum requesting an SSB for the applicant, that states: (1) The action of the FY 21 LTC PSB was contrary to law in a matter material to the decision of the board, resulting in material unfairness to the applicant, and warranting a SSB adhering to instructions, procedures, and criteria from the FY 21 LTC PSB, as set out in the memorandum, in order to comply with law and policy. (2) The board considered the applicant for promotion but failed to select him for promotion, despite a record that suggested the opposite outcome. The board's actions violated the instructions to the board as well as the following statutes and Department of Defense (DOD) regulation, Title 10, USC, section 646, Title 10, USC, section 662, DOD Instruction (DODI) 1320.14 (DOD Commissioned Officer Promotion Program Procedures), and Department of the Army DA) Memo 600-2. (3) The referenced statutes and regulations all contain specific provisions to ensure fairness to officers who are SI/HS on the Joint Staff. The genesis of these requirements can be traced to the Goldwater-Nichols DoD Reorganization Acts of 1986, which sought to, among other objectives, remedy the problem of Joint service being seen as less desirable by officers as well as by promotion boards. "Viewing the Joint Staff and headquarters staffs of unified commands as the most important military staffs within DoD, Capitol Hill found this situation to be intolerable." (4) At the time the board was convened, the applicant was serving on the Joint Staff, a fact that was clearly reflected on his Officer Record Brief that was before the board as well as awards and decorations displaying Joint Chiefs of Staff Identification Badge. (5) Violation of Title 10, USC, section 646, (Consideration of Performance as a member of the Joint Staff) requires that "The Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, shall ensure that officer personnel policies of the Army, Navy, Air Force, and Marine Corps concerning promotion, retention, and assignment give appropriate consideration to the performance of an officer as a member of the Joint Staff." (6) While Army policies concerning promotion of officers who are SI/HS on the Joint Staff exist, and these were transmitted to the members of the board via the board instructions, it did not appear the policies were followed in the conduct of the PSB. (7) Violation of Title 10, USC, section 662 (Promotion policy objectives for joint officers) states that "officers who are serving on or have served on the Joint Staff are expected, as a group, to be promoted to the next higher grade at a rate not less than the rate for officers of the same armed force in the same grade and competitive category who are serving on or have served on the headquarters staff of their armed force." (8) The results of the board showed there was one individual in the PZ, within the ID competitive category, who met the SI/HS HQDA requirement. This individual was selected for promotion, thus having a 100 percent selection rate for those SI/HS HQDA. (9) The applicant was the only individual in the PZ, within the ID competitive category, who met the SI/HS the Joint Staff requirement. He was not selected for promotion, therefore the selection rate for those who are SI/HS in the Joint staff was zero percent, which is inconsistent with instructions to the board members as well as policy objectives set out in Title 10, USC, section 662. (10) Violation of DODI 1320.14, the DoDI incorporating change 2, effective 13 March 2019, provides, "it is DOD policy that all promotion and special selection boards and processes are conducted in full compliance with all applicable statutes and DOD issuances." "The military department will ensure the pertinent records of those joint officers who should receive appropriate joint consideration are precisely identified to the members of the PSB." (11) The board clearly was not "conducted in full compliance with all applicable statutes and DOD issuances" as none of Title 10 or DOD mandates requiring consideration, and promotion of officers who SI/HS the Joint Staff were followed. (12) It is not apparent that the board files of those SI/HS the Joint Staff were "precisely identified" therefore limiting the board members' ability to comply with the USC. (13) Violation of DA Memorandum 600-2 (Personnel-General I Policies and Procedures for Active-Duty List Officer Selections Boards), states "joint relationships and joint experience are key as the Army makes a major cultural shift toward jointness, institutionalizing a joint and expeditionary mindset throughout the force. Future leaders must embody the expeditionary mindset, our future leaders must have the right mix of unit, staff, and command experience (when appropriate), and training and education to meet the current and future leadership requirements of the Army and the Joint Force. DoD directions and Title 10 USC establish an important objective and the qualifications of officers assigned to joint duty positions are such that they are expected to be selected at a rate not less than that of their peers in comparable service positions." (14) The actions of the board, in failing to comply with the law and regulations set out, was "contrary to law in a matter material to the decision of the board." Title 10, USC, section 662 makes it clear that the remedy is the convening of a SSB for promotion reconsideration to consider any officers who were adversely impacted by such errors. (15) The requirement for consideration of service on the Joint Staff in the promotion process is separate and distinct from required consideration of other Joint Staff service, such as being a Joint Qualified Officer and/or service on the staff of the Office of the Secretary of Defense. Consideration of service on the Joint Staff is an independent requirement in the promotions process as is clear from the fact that Congress believed that consideration of such service was important enough to devote an entire provision of Title 10, USC, section 646 solely to directing such consideration. (16) Service on the Joint Staff is considered a Nominative Joint Assignment. The experiences and perspectives the applicant has had during his tenure, have exposed him to how we fight and win as a Joint Force. He respectfully requested an SSB for promotion reconsideration to be convened to reconsider his failure to be selected for promotion by the FY 21 LTC PSB. c. An email from HRC, dated 23 February 2022, states based on a review of the applicant's records and the information he provided it had been determined that he would not qualify for an SSB. Their office verified, through the Department of the Army's Secretaries Office, the Army Selection Board System, and the Directorate of Military Personnel Management and they determined that the board was held in accordance to law. The applicant was identified as being in a Joint Duty Position. 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 evidence shows the applicant was considered for promotion to LTC but was not selected for promotion. By law and regulation, an SSB is appropriate if an officer was not considered in or above the promotion zone by a regularly scheduled board because of administrative error, or the promotion board that considered the officer in or above the promotion zone acted contrary to law or made a material error; or if the promotion board that considered the officer in or above the promotion zone did not have before it some material information. The Board determined since promotion board was held in accordance with the law, and since HRC verified that he was identified as being in a Joint Duty Position during the promotion board consideration, and since there is no material error in his record, an SSB is not warranted in his case. ? 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. Title 10, USC, section 646 (Consideration of performance as a member of the Joint Staff) states the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, shall ensure that officer personnel policies of the Army, Navy, Air Force, Marine Corps and Space Force concerning promotion, retention, and assignment give appropriate consideration to the performance of an officer as a member of the Joint Staff. 2. Title 10, USC, section 662 (Promotion policy objectives for joint officers) states, the Secretary of Defense shall ensure that the qualifications of officers assigned to joint duty assignments are such that: a. Officers who are serving on, or have served on, the Joint Staff are expected, as a group, to be promoted to the next higher grade at a rate not less than the rate for officers of the same armed force in the same grade and competitive category who are serving on, or have served on, the headquarters staff of their armed force. b. Officers in the grade of major or above who have been designated as a joint qualified officer are expected, as a group, to be promoted to the next higher grade at a rate not less than the rate for all officers of the same armed force in the same grade and competitive category. 3. DODI 1320.14 (DOD Commissioned Officer Promotion Program Procedures) states the military department concerned will require that the pertinent records of joint officers who should receive appropriate joint consideration are precisely identified in those records to members of the promotion selection board, if required. 4. HQDA Memo 600-2 (Polices and Procedures for Active Duty List Officer and Department of the Army Selection Boards) states when reviewing the records of officers who are serving in or have served in Joint duty assignments, the board should ensure appropriate consideration is given to Joint duty assignment performance and bear in mind the Joint promotion objectives described. However, these Joint promotion objectives are not mandatory selection requirements and should not be interpreted as modifying the board's duty to select the best qualified officers from the total considered population. Officers who are SI or HS on the Joint Staff are expected, as a group, to be promoted to the next higher grade at a rate not less than the rate for officers of the Army in the same grade and competitive category who are SI or HS on HQDA Staff. 5. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 6. Army Regulation 600-8-29 (Officer Promotions), prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs. a. Paragraph 7-2 provides that a SSBs may be convened under Title 10, United States Code (USC), section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (Cases not considered) provides that an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the officer record brief or OMPF. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11, officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. 7. Title 10, USC, section 14104 (Nondisclosure of board proceedings) states the proceedings of a selection board convened under section 14101 or 14502 of this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. This prohibition is a statutory exemption from disclosure, as described in section 552(b)(3) of title 5. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004842 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1