IN THE CASE OF: BOARD DATE: 8 August 2023 DOCKET NUMBER: AR20230001547 APPLICANT REQUESTS: through counsel, reconsideration of his previous request for: • recission of retirement orders • extension of Mandatory Retirement Date (MRD) • promotion to colonel (COL)/O-6 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Legal argument • Congressional Record, 9 September 2019 • Department of Defense (DoD) Inspector General (IG) Freedom of Information Act (FOIA) Response, 11 July 2022 • Legislative Search Results, Congressional Record, 9 November 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210010769 on 16 June 2022. 2. Counsel states in pertinent part that in the original petition, the applicant was found qualified for an O-6 vacancy promotion by the Federal Recognition Examining Board conducted by the Pennsylvania Army National Guard (PAARNG). Counsel notes that a suspension of favorable personnel actions flag was placed in the applicant's personnel file on 19 September 2019, due to a complaint submitted to the Office of the Inspector General (IG) prompting the initiation of an IG investigation. However, on 27 September 2019, special orders were issued extending Federal recognition of the applicant's promotion to COL effective 10 September 2019. Counsel argues that this action occurred 2 weeks prior to the issuance of orders and more than 1 week prior to the initiation of the IG complaint. a. Counsel provides that in accordance with Department of Defense Instruction (DoDI) 1320.14, which details the process for officer promotions, it states in pertinent part that when looking to remove an officer from a promotion board report or list, the Secretary of the Army recommends the removal of the officer to the Secretary of Defense, and the information that was not previously available to the promotion board is made available to the officer who is given an opportunity to submit comments to all officials making recommendations. b. This guidance further provides that the officers name will be removed from the promotion list if the Senate does not give its advice and consent. In this case, the applicant's name was present on the 10 September 2019 published promotion list. Counsel notes that there is no guidance provided for overriding the Senates authority to advise and consent. Further, the applicant was not notified that his promotion was revoked nor is there evidence that this revocation was executed in accordance with the governing policy. Therefore, the applicant's promotion should have gone into effect immediately. If the later conducted investigation revealed a level of misconduct that warranted action, other administrative action should have been taken and a grade determination board conducted prior to the applicant's retirement. In absence of this requirement, the applicant was denied due process and because his promotion was revoked, he was forced into a premature retirement. c. This argument is further provided in its entirety for the Board's review within the supporting documents. 3. A review of the applicant's available service records reflects the following: a. On 31 July 1992, the applicant was appointed a Reserve commission. b. On 6 January 2003, the National Guard Bureau (NGB) issued Special Orders Number 2 AR announcing Federal recognition of the applicant's branch transfer from the Military Intelligence Corps to the Field Artillery Corps effective 26 November 2002. c. On 16 April 2014, the applicant was promoted to the rank/grade of lieutenant colonel (LTC)/O-5. d. On 19 September 2019, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag) was imposed on the applicant in relation to a command investigation being conducted. e. On 27 September 2019, the NGB issued Special Orders Number 275 announcing Federal recognition of the applicant's promotion to COL, effective on with a date of rank of 26 September 2019. f. On 10 March 2020, the NGB issued Special Orders Number 73 announcing the revocation of Special Orders Number 275. g. On 31 March 2020, a General Officer Memorandum of Reprimand (GOMOR) was issued to the applicant reprimanding him for his unprofessional behavior noting that on numerous occasions he repeatedly exhibited poor self-control by expressing frustration in the presence of subordinates. Specifically, between March 2019 and August 2019, the applicant lost his temper resulting in the loss, damage or destruction of at least one government computer. The GOMOR issuing authority afforded the applicant 30 days to provide a response to this memorandum. The applicant submitted his rebuttal, however the GOMOR issuing authority concurred with the recommendation of the GOMOR and further considered relieving the applicant from his command position. h. On 29 May 2020, the GOMOR issuing authority directed that the GOMOR be filed within the applicant's local personnel file for a period of 6 months. i. On 5 June 2020, the applicant's administrative flag was removed. DA Form 268 indicates that the case was closed unfavorably. j. On 30 July 2020, Orders Number 544640 was issued transferring the applicant to the U.S. Army Retired Reserve, effective 1 August 2020, at the rank of LTC. k. On 31 July 2020, the NGB issued Special Orders Number 226 announcing the withdraw of the applicant's Federal recognition within the ARNG and transfer into the U.S. Army Retired Reserve, effective 1 August 2020, at the rank of LTC in accordance with National Guard Regulation 635-100 (Separation of Officers), paragraph 5a.(3) (Resignation). 4. The applicant provides the following a: a. Congressional Record dated 9 September 2019, reflective of the applicant being listed for appointment to the rank of COL. b. DoD IG FOIA Response dated 11 July 2022, reflective of their response to the applicant's request for information pertaining to the IG investigation conducted. In response the applicant was provided with 6 pages of documentation deemed appropriate for release. These 6 pages are further provided in their entirety for the Board's review within the supporting documents. c. Legislative Search Results, Congressional Record dated 9 November 2022, reflective of Congressional Record, Section 6367, Record Volume 165, Number 143 being released on 9 September 2019. 5. On 16 June 2022, Docket Number AR20210010769 the Board considered the applicant's request for relief. The Board found the evidence fully supports the decision to investigate the applicant's behavior while serving as a LTC/O-5 in the PAARNG. Because of this investigation, he was flagged for suspension of favorable personnel actions as required by regulation, which resulted in the revocation of his promotion to COL/O-6 because he was not in a promotable status. Further, the Board found insufficient evidence to support a conclusion that the applicant was deprived of any due process during the investigation or upon receiving a GOMOR based on the substantiated finding of the investigation. In view of the foregoing, the Board further found no basis for the relief requested by the applicant. Based on a preponderance of the evidence, the Board determined the applicant's transfer to the Retired Reserve in the rank/grade of LTC/O-5 was not in error or unjust. 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. a. The evidence shows the applicant was found qualified for a vacancy promotion to COL in the ARNG on 29 April 2019. The Board noted that on 18 September 2019, a complaint against the applicant led to an AR 15-6 investigation, that resulted in a flagging action on 19 September 2019, placing him in a non-promotable status, with a recommendation that the applicant receives a GOMOR for misconduct/unprofessional behavior between March and August 2019. He did receive the GOMOR on 31 March 2020, and it was filed locally. Meanwhile, the NGB published promotion orders on 27 September 2019, promoting him to COL effective 26 September 2019. However, due to the properly imposed flag, this promotion was prohibited. That is why the applicant’s promotion was revoked. Promotion in the State ARNG is a function of the State and since The Adjutant General (TAG) is a federally recognized officer and is the Senior Military member in the State ARNG, TAG had the authority to revoke the promotion. The Board determined that promotion to COL is not warranted. b. The Board also noted that since his promotion was revoked, he was required to be either discharged or transferred to the Retired Reserve (if qualified) because by law LTCs may not serve beyond an MRD of 28 years of service. Since he reached 28 years of service, he was transferred to the Retired Reserve. The Board re-reviewed all the evidence and was not convinced by his argument that an error or an injustice occurred. The Board determined his promotion was properly revoked due to not being in a promotable status and since his promotion was revoked, he was required to transfer to the Retired Reserve (or be discharged) upon reaching his MRD. In view of the foregoing, the Board further found no basis for the relief requested by the applicant. Based on a preponderance of the evidence, the Board determined the applicant’s transfer to the Retired Reserve in the rank/grade of LTC was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 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 to amend the decision of the ABCMR set forth in Docket Number AR20210010769 on 16 June 2022. 8/8/2023 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. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition. Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the States under Article 1, Section 8 of the U.S. Constitution. These appointments may be federally recognized by the Chief, National Guard Bureau under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation. Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.) The promotion of officers 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. However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed herein. National Guard officers may be considered and found qualified for Federal Recognition of their State promotion using two distinct processes: State Federal Recognition Boards and DA Mandatory Boards. Under either process, the precedent for an actual promotion in the Army National Guard is State assignment and appointment to the next higher grade. a. State Federal Recognition Boards (FRB). Officers may be federally recognized through State FRB which are often referred to as "State vacancy promotion boards" or "unit vacancy boards" as part the Unit Vacancy Promotion (UVP) process under 32 USC 307. b. DA Mandatory Boards. The second way to federally recognize the State promotion is through the DA Mandatory Promotion Selection Boards process. Mandatory promotion selection boards are convened by the Secretary of the Army pursuant to 10 USC 14101(a). Those National Guard officers selected ("DA Select") by a DA mandatory board who are then appointed by the State in that higher grade to fill a vacancy in the Army National Guard are extended Federal Recognition in that grade, without the examination prescribed by 32 USC 307 (see 10 USC 14316). c. Paragraph 8-3 (Promotion as a Reserve Commissioned Officer of the Army) provides that Federal Recognition orders erroneously promoting an ineligible officer must generally be revoked within 6 months of being extended Federal recognition per Army Regulation 135-155. d. Paragraph 8-26 (Promotion Selection Screening for Exemplary Conduct) provides that all officers recommended for promotion selection, will be screened for exemplary conduct. This screening will include a review of information maintained by the U.S. Army Criminal Investigation Division, the Department of the Army Inspector General, and the restricted portion of the personnel file. If an individual is found to have adverse information within his file, he will immediately be removed from the vacancy promotion scroll for further review. 2. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the U.S. Army Reserve (USAR), and warrant officers of the USAR. Paragraph 3-10 (Revocation of Promotion Orders) provides that a promotion order will be revoked when an officer declines promotion or when the promotion authority determines that the promotion is void because of one or more of the following: • the promotion was not authorized by competent authority • the officer was erroneously considered and selected for promotion that did not meet the requirements • the officer was in, or should have been in a non-promotable status on the effective date of the promotion • when a determination is made that the promotion was contrary to law or regulation a. The President or his designee may remove the name of an officer in the grade of second lieutenant or higher and below brigadier general from a list of officers recommended for promotion by a selection board. b. Paragraph 3-7 (Non-Promotable Status) provides that an officer who is recommended for promotion will be in a non-promotable status, and the officers promotion will be automatically delayed (that is the officer is not promoted in spite of the publication of orders) when the officer is under investigation that may result in disciplinary action of any kind or under/should be under suspension of favorable personnel action. Absence of a DA Form 268 (Report of Suspension of Favorable Personnel Action) does not negate the fact that the officer was in a non-promotable status on the promotion eligibility date. The name of the officer erroneously considered and selected for promotion will be administratively removed by the Chief, Promotions Branch from any promotion selection list prior to the Secretary of the Army (SECARMY) approval provided no other officer is disadvantaged. All other erroneous considerations found after SECARMY approval of results requires SECARMY approval for administrative deletion. c. Paragraph 7-4 (Suspension of Favorable Personnel Actions) provides that the Army Human Resources Command will impose a suspension of favorable personnel actions flag (DA Form 268) upon identification of a promotable officer in a non-promotable status or upon referral of a case for a Promotion Review Board. The failure to prepare the DA Form 268 does not invalidate the referral of the action to the board or the subsequent action relating to the board. 3. DoD Instruction 1320.14 (DoD Commissioned Officer Promotion Program Procedures) provides that if the Secretary of the Military Department concerned recommends removal of the name of an officer from a report of a promotion selection board to the Secretary of Defense and the recommendation is based on information pertaining to the officer that was not presented to the promotion selection board, then that information will be made available to the officer. An officer's name will be removed from a promotion list if the Senate does not give its advice and consent to the appointment of an officer to the next higher grade. An officer's nomination not acted upon by the Senate at the time of adjournment or 30-day recess and returned to the White House under the standing rules of the Senate is not required to be removed from a promotion list. The name of an officer whose appointment requires the advice and consent of the Senate will be removed from a promotion list by operation of law at the end of the officer's promotion eligibility period, if the Senate has not given its advice and consent. For the purpose of determining the officer's promotion eligibility, the removal is effective the date of the expiration of the officer's promotion eligibility period. a. Except when removal occurs by operation of law, removal of an officer's name from the promotion list requires the signature of the appropriate approval authority in accordance with this paragraph. b. The Secretary of Defense, the Deputy Secretary of Defense or the Secretary of the Military Department concerned may remove the name of an officer from a board report resulting from a promotion selection board to a grade below general or flag officer. 4. AR 135-175 (Separation of Officers) provides that orders announcing discharge may not be revoked after its effective date provided the order was published from a headquarters authorized to approve the discharge and to issue the discharge certificate and there is no evidence that the discharge was obtained under fraudulent circumstances. An officer whose resignation has been accepted or whose discharge has been directed will be separated on the date specified in orders or as otherwise directed by HQDA. The date of separation, specified or directed, will not be changed without prior approval of HQDA; nor can separation orders be revoked after the specified or directed date of separation. 5. 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. 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//