IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20230000035 APPLICANT REQUESTS: in effect, * change to the effective date of removal from the Fiscal Year 2019 (FY19) promotion recommended list * retroactive consideration for promotion to Major (MAJ)/O-4 by a Special Selection Board (SSB) under FY20 MAJ PSB criteria and if selected – * adjustment of his date of rank (DOR) based on when he would have been promoted by the FY19 Promotion Selection Board (PSB) * back pay and allowances * deletion of his last Officer Evaluation Report (OER) as a MAJ from his Army Military Human Resource Record (AMHRR) * completion of an OER as a MAJ, serving in a MAJ billet APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Secretary of the Army (SA) memorandum, Subject: Statutory Removal from FY19 MAJ, Force Sustainment, Promotion List * U.S. Army Criminal Investigation Division (CID) memorandum, Subject: Review of Law Enforcement Report (LER) ending in 7222 FACTS: 1. The portion of the applicant's request which pertains to the removal of his last OER as a CPT and replacing it with an OER showing the rank of MAJ is premature and will not be addressed in this Record of Proceedings. The ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. Any alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB). 2. The applicants states, in effect, his recommendation for promotion by the FY19 MAJ PSB was delayed due to allegations of misconduct associated with the Army National Guard Recruiting Assistant Program (G-RAP) in 2007. a. He was originally selected for promotion during the FY19 MAJ PSB. His name was withheld from the list due to a post-board screening which revealed he had been titled and indexed in an Army CID report for involvement with G-RAP. b. He was referred to a Promotion Review Board (PRB). The PRB recommended he be retained on the promotion list. Both the SA and the Secretary of Defense recommended promotion; however, the Senate never confirmed his nomination prior to the expiration of his Promotion Eligibility Period (PEP). Due to the length of time that passed prior to removal from the list, he was not eligible for consideration during the FY20, FY21, or FY22 MAJ promotion boards. He contends that the error in the CID investigation was directly responsible for his loss of promotion opportunity and key career developmental advancements. He wants to recoup what he was denied and continue to serve in the U.S. Army. 3. The applicant completed enlisted service in the Alabama Army National Guard from 10 November 2005 to 3 December 2009. 4. He accepted an appointment as a Reserve commissioned officer on 4 December 2009 in the rank of second lieutenant. His Officer Record Brief shows he was promoted to first lieutenant on 27 August 2011. 5. On 1 February 2014, the applicant was promoted to captain (CPT). The applicant is currently serving in the USAR. 6. The applicant's record is void of derogatory information related to his participation in the G-RAP. 7. The applicant provides: a. A SA memorandum, 13 April 2022, which notified the applicant that he was being removed from the FY19 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. b. A CID memorandum, 1 December 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. As such, 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). 8. On 23 January 2023, the Senior Integrator, Officer Division, Directorate of Military Personnel Management, AHRC, provided an advisory opinion in this case. This official stated - 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 FY19 MAJ Force Sustainment PSB. Upon that change, the applicant would become eligible for a SSB based on the FY20 MAJ Force Sustainment 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 FY19 MAJ Force Sustainment promotion list. b. The applicant was selected for promotion to MAJ by the FY19 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 PEP (including 12- month extension). On 13 April 2022, 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 FY20, FY21, or FY22 MAJ Force Sustainment PSBs. d. On 1 December 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 FY19 (corrected by analyst after telephone confirmation) 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 (corrected), 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 FY20, FY21, and FY22 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. Eligibility for consideration by SSB for the FY20 MAJ Force Sustainment criteria. (1) 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. (2) 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. (3) Accordingly, provided the new date of removal is prior to the convene date of the FY20 MAJ Force Sustainment PSB (8 July 2020), the applicant would be eligible for an SSB under the FY20 MAJ Force Sustainment PSB criteria as the records would show he was eligible for, but not considered by, the FY20 MAJ Force Sustainment PSB. j. Effect of Promotion on DOR, pay and allowances, and placement on the active- duty list. (1) 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. (2) If the applicant is recommended for promotion by an SSB based on the FY20 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 FY19 MAJ Force Sustainment PSB. 9. The applicant was provided a copy of the advisory opinion on 4 January 2023. There was no response prior to the suspense date. On 25 January 2023, the applicant's counsel concurred with the AHRC advisory. The applicant's counsel requested an SSB. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed and agreed with the advisory official’s’ finding that: a. The applicant was selected for promotion to MAJ by the FY19 promotion selection board. However, due to presence of derogatory information in his file, the SA ordered his name removed from FY19 MAJ, Force Sustainment promotion list, albeit some three years later on 13 April 2022. After that, in December 2022, CID removed the Law Enforcement Report related to the Recruiting Assistance Programs, and his name and identifying information from law enforcement systems, to include the DCII. b. The Board agreed that had the removal from his name from the FY19 promotion list been timely, he would have been considered for promotion to MAJ by the FY20 and FY21 promotion selection boards. This is an injustice. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * amending the date the Secretary of the Army removed his name from the FY2019 Promotion Selection Board from 13 April 2022 to 7 July 2020 (one day prior to the convene date of the FY20 MAJ Promotion Selection Board) * promotion consideration by a special selection board under the FY20 Major, Force Sustainment Promotion Selection Board * If selected, issue promotion orders promoting him to MAJ with the appropriate date of rank and effective date * If not selected, allow promotion consideration by a special selection board under the FY21 Major, Force Sustainment Promotion Selection Board 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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 623-3 (Personnel Evaluation-Evaluation Reporting System) states alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB). After resolution of the appeal, HQDA amends the rated Soldier’s records, if appropriate. If the rated Soldier has been non-selected for promotion, the ASRB will also determine if promotion reconsideration is warranted as a result of the change to the evaluation report. 10. 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. c. The ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000035 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1