ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220012704 APPLICANT REQUESTS: in effect - * change to the effective date of removal form the Fiscal Year 2018 (FY18) PSM recommended list * retroactive consideration for promotion to Major (MAJ)/O-4 by a Special Selection Board (SSB) and if selected – * adjustment of his date of rank (DOR) based on FY18 Promotion Selection Board (PSB) * back pay and allowances APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * email, Subject: Scroll Withhold Notification, 8 January 2019 * SA memorandum, Subject: Promotion Review Board (PRB) AP1904-36, FY18 MAJ, Army, Force Sustainment, PSB, 21 August 2019 * Secretary of the Army (SA) memorandum, Subject: Statutory Removal from FY18 MAJ, Force Sustainment, Promotion List, 6 July 2021 * Criminal Investigation Division (CID) memorandum, Subject: Review of Law Enforcement Report (LER)..., 17 November 2022 FACTS: 1. The applicants states, in effect, he was selected for promotion by the FY18 MAJ PSB. His name was withheld from the list due to a post-board screening which revealed that he had been titled and indexed in an Army CID report due to allegations of misconduct associated with the Guard Recruiting Assistance Program (G-RAP). He further states - a. His recommendation for promotion was delayed on 8 January 2019. b. On 6 July 2021, the SA directed the administrative removal of his name from the promotion list due to the expiration of his Promotion Eligibility Period. c. On 17 November 2021, CID notified him that after reviewing his case they determined his original titling and indexing was in error. d. He was subsequently referred to a PRB and the PRB recommended retention. Both the SA and Secretary of Defense recommended he be promoted; however, the Senate never confirmed his nomination prior to expiration of his Promotion Eligibility Period. Due to the length of time prior to removal from the list, he was not eligible for consideration during the FY19, FY20, or FY21 MAJ promotion boards. e. He contends the CID erred in their investigation and this error is directly responsible for the loss of his promotion opportunity. 2. His Officer Record Brief shows the applicant's basic date of appointment in the Regular Army as 8 May 2009. His DOR to captain (CPT)/O-3 is listed as 1 December 2012. 3. His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows the applicant served on active duty from 22 May 2009 to 31 August 2022. 4. He accepted an appointment as a Reserve Officer on 1 September 2022. His appointment letter shows his scroll date/DOR to CPT as 22 August 2022. 5. The applicant's record is void of documents/investigations related to his misconduct during his participation in the G-RAP. 6. The applicant provides: a. An email from the Special Actions Office, Officer Promotions, Army Human Resources Command (AHRC), 8 January 2019. This document shows the applicant was notified that his name was being withheld from nomination by the SA based on a post-board screening which found he was the subject of 2006 CID report. His promotion was being referred to a PRB and he would be in a non-promotable status until the action was completely closed out. b. A SA memorandum, 6 July 2021, notifying the applicant that he was being removed from the FY18 MAJ, Force Sustainment promotion list, pursuant to Title 10, U.S. Code, Section 629a and 629c, Executive Order Number 12396, re-delegated by the Secretary of Defense on 12 January 1983. This removal constituted a non-selection for promotion. c. A SA memorandum, 21 August 2019, which directed the applicant's immediate retention on the FY18 MAJ, Army Force Sustainment promotion list, pursuant to Army Regulation 600-8-29 (Officer Promotions), paragraph 8-8c. d. A CID memorandum, 17 November 2022, which shows that in July 2022 the CID began a thorough review of investigations previously initiated and conducted into allegations of criminal wrongdoing in various Army Recruiting Assistance Programs (RAP). This review determined that, based upon the information available to CID in relevant files, there was an insufficient basis upon which to title or index the applicant in law enforcement databases for any offense related to RAP. CID removed the subject LER, and his name and identifying information from law enforcement systems, to include the Defense Clearance and Investigations Index (DCII) and the Federal Bureau of (FBI) Interstate Identification Index (Ill). 7. On 28 December 2022, the Senior Integrator, Officer Division, Directorate of Military Personnel Management, AHRC, provided an advisory opinion in this case. This official stated, in effect - a. Pursuant to Title 10, U.S. Code, Sections 628, 629, and 1552, the Army Review Board Agency may direct a change to the effective date of removal of the applicant from the FY18 MAJ Force Sustainment PSB. Upon that change, the applicant would become eligible for a SSB based on the FY19 MAJ FS PSB criteria. If selected for promotion, the SA may grant him the same DOR, the same effective date for pay and allowances of the grade to which promoted, and the same position on the active-duty list, as he would have had if his name was not removed from the FY 18 MAJ Force Sustainment promotion list. b. The applicant was selected for promotion to MAJ by the FY18 MAJ Force Sustainment PSB. He was withheld from the promotion scroll for further review of his records due to his involvement in the G-RAP and referred to a PRB. Although the PRB recommended the applicant be retained on the promotion list, and the Army and Office of the Secretary of Defense (OSD) forwarded the nomination, the Senate did not give its advice and consent to the appointment prior to the expiration of his promotion eligibility period (including 12-month extension). On 1 June 2021, the SA removed the applicant from the promotion list pursuant to Title 10, U.S. Code, Section 629(a). c. Due to the processing of his nomination, the applicant was not eligible for consideration by the FY19, FY20, or FY21 MAJ Force Sustainment PSBs. d. On 17 November 2022, the applicant was notified that the Army CID determined there was an insufficient basis to title or index him and that his name and identifying information had been removed from law enforcement systems, to include the DCII and the FBI's Ill. Based on this records amendment, the applicant now seeks promotion reconsideration. e. Change to the Effective Date of Removal from the FY18 MAJ Force Sustainment PSB. Pursuant to Title 10, U.S. Code, Section 628, there is no statutory authority to conduct an SSB under the FY18 criteria. The applicant was considered and selected for promotion by the FY18 MAJ Force Sustainment PSB but was ultimately removed from the promotion list by the SA following the expiration of his promotion eligibility period. Pursuant to Title 10, U.S. Code, Section 628, there are two statutory bases to conduct a SSB, neither of which apply to the applicant: (1) First, Title10, U.S. Code, Section 628(a) requires an SSB when an officer should have been considered for selection for promotion but was not considered due to administrative error. This provision is not applicable as the applicant was considered for promotion. (2) Second, Title 10, U.S. Code, Section 628(b) provides an SSB may be conducted when an officer was considered for promotion but was not selected for promotion by a promotion board due to material unfairness. This provision is not applicable as the PSB did select and recommend the applicant for promotion. f. Pursuant to Title 10, U.S. Code, Section 619(d)(1), an officer may not be considered for promotion when the officer's name is on a promotion list as a result of his selection for promotion for an earlier board. Accordingly, while the applicant's promotion was being processed, he was ineligible for consideration before the FY19, FY20, and FY21 MAJ Force Sustainment PSBs. g. In accordance with Title 10, U.S. Code, Section 629(e), once an officer is removed from the promotion list, they then become eligible for promotion consideration. f. Service Secretaries may correct a Soldier's military record when necessary to correct an error or remove an injustice in accordance with Title 10, U.S. Code, Section 1552(a). Corrections shall be made by the Secretary acting through a board of civilians. h. Analysis: Here, the lengthy processing delays of his nomination combined with a subsequent decision by the CID determination that the titling and indexing were erroneous, appear to create an injustice. There is precedent for ABCMR to alter the effective date of removal under Title 10, U.S. Code, Section 629. i. In accordance with Title 10, U.S. Code, Section 629(e), once an officer is removed from the promotion list, they then become eligible for promotion consideration. h. Pursuant to Title 10, U.S. Code, Section 628(a), officers who are eligible for, but not considered by, a promotion board based on administrative error are eligible for an SSB. i. Accordingly, provided the new date of removal is prior to the convene date of the FY19 MAJ Force Sustainment PSB (9 July 2019), the applicant would be eligible for an SSB under the FY19 MAJ Force Sustainment PSB criteria as the records would show he was eligible for, but not considered by, the FY19 MAJ FS PSB. j. Effect of Promotion on DOR, pay and allowances, and placement on the active- duty list. Pursuant to Title 10, U.S. Code, Section 629(e), if an officer is removed from a promotion list due to the expiration of their promotion eligibility period and is recommended for promotion by the next selection board convened for his grade and competitive category, the SA may, upon promotion, grant him the same DOR, the same effective date for pay and allowances of the new grade, and the same position on the active-duty list as he would have had if his name had not been removed. k. If the applicant is recommended for promotion by an SSB based on the FY19 MAJ Force Sustainment PSB criteria, the SA has the authority to grant him the same DOR and position on the active duty-list, to include associated pay and allowances, as he would have received if he had been promoted by the FY18 MAJ Force Sustainment PSB. 8. The applicant was provided a copy of the advisory opinion on 4 January 2023. There was no response prior to the suspense date. 9. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, and the Office of the Deputy Chief of Staff, G-1, Senior Integrator, Officer Division advisory opinion and regulatory guidance. The Board concurred with the advisory opinion and determined the applicant was denied an opportunity to go before the promotion board and recommends consideration for the Fiscal Year 2019 Major Promotion Selection by a special selection board (SSB). Furthermore, the Board determined that correction to the effective date of removal of the applicant from the Fiscal Year 2018 (FY18), Major (MAJ), Force Sustainment (FS) Promotion Selection Board (PSB) is warranted. Upon that change, the applicant is eligible for a Special Selection Board (SSB) based on the FY19 MAJ FS PSB criteria. 2. The Board found if the applicant is selected for promotion, he be granted the same date of rank, the same effective date for pay and allowances of the grade to which promoted, and the same position on the active-duty list, as he would have had if his name had not been removed from the FY 18 MAJ FS promotion list. Based on the preponderance of evidence available for review, the Board determined that relief is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he was removed from the FY18 Major Force Sustainment Promotion List effective 8 July 2019 making him eligible for consideration by an SSB conducted by the Officer Special Review Board under the FY19 MAJ FS PSB criteria. 2. As such, if the applicant is selected for promotion, he be granted the same date of rank, the same effective date for pay and allowances of the grade to which promoted, and the same position on the active-duty list, as he would have had if his name had not been removed from the FY 18 MAJ FS promotion list. 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, U.S. Code 619 (d)(Certain Officers Not To Be considered)(1) states a selection board convened under section 611(a) of this title may not consider for promotion to the next higher grade an officer whose name is on a promotion list for that grade as a result of his selection for promotion to that grade by an earlier selection board convened under that section. 2. Title 10, U.S. Code, Section 628 (Special Selection Boards) states persons not considered by promotion boards due to administrative error. a. If the Secretary of the military department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered, the Secretary shall convene a special selection board under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. b. A special selection board convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record would have appeared to the board that should have considered him. That record shall be compared with a sampling of the records of those officers of the same competitive category who were recommended for promotion, and those officers who were not recommended for promotion, by the board that should have considered him. 3. Title 10, U.S. Code, Section 629(a) (Remove by President) states the President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter. 4. Title 10, U.S. Code, Section 629(e) (Continued Eligibility for Promotion) states an officer whose name is removed from a list under subsection (a)-Removal by President), (b)-Removal Due to Senate Not Giving Advice and Consent), or (c)-Removal After 18 Months) continues to be eligible for consideration for promotion. If he is recommended for promotion by the next selection board convened for his grade and competitive category and he is promoted, the Secretary of the military department concerned may, upon such promotion, grant him 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 he would have had if his name had not been so removed. 5. Title 10, U.S. Code, Section 1552 (Correction of Military Records: Claims Incident Thereto) 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. 6. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), states if the report of a SSB, approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion, or a former officer whose name was referred to it, the Secretary of the Army may act through the ABCMR to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer. 7. AR 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. To be considered for promotion by a selection board, an officer must be on the active duty list (ADL) on the day the board convenes. Officers under suspension of favorable personnel actions or in a non-promotable status remain eligible for consideration. Service in the Individual Ready Reserve is considered service in an active status. a. Paragraph 7-2 states that SSB may be convened under Title 10, 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). 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. 8. The U.S. Army Stand-To webpage, published 11 December 2008, stated that the Army National Guard's Recruiting Assistance Program (G-RAP) is the ARNG's adaptation of civilian contract recruiting. The G-RAP program as of 1 December 2008, 2008 had 132,371 active recruiting assistants (RAs). The RAs are traditional ARNG Soldiers. Active Guard Reserve (AGR) Soldiers (Title 10 and Title 32), military technicians, and Soldiers serving on active duty operational support (ADOS) or mobilization are currently excluded from participation in G-RAP. Significant features of G-RAP implementation include: a. The G-RAP program requires additional training and contractual performance by selected subcontractors such as a prospecting phase, a prequalification phase, a salesmanship phase, an applicant processing phase and a sponsorship phase. These phases are worked by the contractor in concert with a local recruiter to attract and enlist the best qualified applicants and to reduce the risk of training pipeline attrition. b. Upon verified enlistment, the RA receives an initial $1,000 payment, with a second $1,000 payment upon verification of the Soldier's successful shipment to basic training for non-prior service contracts or a full $2,000 payment for prior-service contracts. Exact payment timelines vary depending upon prior service/non-prior status and availability of training seats. 9. AR 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. b. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//