IN THE CASE OF: BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20230001289 APPLICANT REQUESTS: in effect, retroactive consideration for promotion to captain (CPT)/O-3 by a Special Selection Board (SSB) and if selected - * adjustment of his date of rank (DOR) based on the Fiscal Year 2015 (FY15) Promotion Selection Board (PSB) * back pay and allowances * removal of all derogatory information related to the investigation, flagging, and removal from the promotion list * award of the Meritorious Service Medal as a retirement award APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * DD Form 268, Report to Suspend Favorable Personnel Actions (FLAG) * Delay of Promotion and Referral to a Promotion Review Board (PRB) * Rebuttal for Delay of Promotion and Referral to a PRB * U.S. Army Criminal Investigation Division (USACID) Report of Investigation (ROI) * USACID Freedom of Information Act (FOIA) response FACTS: 1. The applicants states, in effect, he was selected for promotion by the FY15 CPT PSB. His name was subsequently removed from the Army Promotion List (APL) because he had been flagged pending the outcome of an investigation initiated by CID into the Guard-Recruiting Assistant Program (G-RAP). As a result, a PRB ultimately denied his promotion. Recently, CID conducted a review of these investigations and found that many Soldiers were falsely targeted and has since removed any derogatory information from his record. He contends that his promotion was withheld as a direct result of the G-RAP investigation. Barring this investigation and the denial of his promotion he would still be serving on active duty. He further requests to be issued the Meritorious Service Award as an end of career award. This is the award he would have received if not for the CID investigation. 2. The applicant's request to be awarded the Meritorious Service Medal is premature and will not be addressed in this Record of Proceedings. There is no evidence the applicant was recommended for this award. Nevertheless, Title 10, U.S. Code, Section 1130 (Title 10 USC 1130) allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that was not entered administratively into military channels within 2 years of the act, achievement, or service to be honored, and is therefore precluded from consideration by limitations established by law or policy; with exception of the Medal of Honor, Distinguished Service Cross, and Distinguished Service Medal. a. The Title 10 USC 1130 process requires the recommender to requests consideration of an action over the 2-year time limitation and prepare and/or complete a DA Form 638, Recommendation for Award, (enclosed), which clearly identify their unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which he is requesting recognition must accompany the DA Form 638. b. In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events related to the request, and a copy of their DD Form 214 (Certificate of Release or Discharge from Active Duty), if applicable. c. All requests that are not processed within time limitations and/or theater are considered retroactive and must be processed through the chain of command which was in effect at the time of the service or achievement to be recognized. All commanders in the former chain of command, to include the awards approval authority for the request, must endorse the recommendation for approval, downgrade, or disapproval as appropriate in the intermediate authority blocks on the award form. Every attempt will be made by the recommender to obtain the original chain of command’s endorsement for all award recommendations. In the event an individual is not available, the recommender must provide documentation, such as a memorandum of record, emails, or letters verifying they have taken all reasonable steps to locate the individual. d. After the aforementioned documentation is collected, the recommender must send the completed documentation to a Member of Congress for their endorsement. The Member of Congress will forward the packet and their endorsement through the Office, Chief of the Legislative Liaison to the Army Human Resources Command (AHRC), ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. e. If the applicant chooses to pursue the award requested by submitting a request under the provisions of Title 10 USC 1130, and his request is subsequently denied by the AHRC, he may reapply to the ABCMR. 3. A review of the applicant's record shows that after serving in the Regular Army for two years, he enlisted into the Vermont Army National Guard (VTARNG) on 16 April 2002. 4. The applicant was appointed as a first lieutenant (1LT)/O-2 in the VTARNG on 15 October 2011. 5. The applicant was considered for promotion to CPT by the Fiscal Year 2015 ARNG Army Promotion List, (APL) Competitive Category, recommended list. He was selected for promotion. 6. The applicant provides a notification of recommendation for promotion to CPT by the FY15 CPT, APL PSB, dated 30 March 2017. This notification further shows that the Deputy Chief of Staff, G-1, referred the applicant's records to a PRB because a post selection screening found that he received a Law Enforcement Report *5M7, 14 November 2016. 7. The applicant also provides a rebuttal to the delay of his promotion and referral to a PRB, 4 May 2017, wherein he contended, in effect – a. The USACID operated outside its jurisdiction with its investigation of his alleged criminal activity committed while participating in the G-RAP. Therefore, any evidence collected, or recommendations made pursuant to the investigation must be disregarded. b. As a result of this CID investigation, he had been denied promotion, pay, assignments, and career advancement opportunities. He was also denied any due process rights, and he had been denied employment opportunities. This had all transpired over a period exceeding two years because of a CID investigation that violated the U.S. Constitution and Department of Defense Directives and alleged a policy violation for which he had provided sufficient contradicting evidence. c. He had given the Army 17 years of honorable service, including three deployments. He did not feel as though he had been treated in a manner reflective of an organization that he respected and that he was honored to represent. Everything about the handling of his case was contrary to the principles of American justice: He had been informally charged by people he had never met and been denied any due process rights, he had not been allowed to confront any of his accusers, he had been presumed guilty with punishment imposed without ever having been charged or convicted of a crime, and the presumption of guilt had been placed on him with the onus of proving his innocence. d. He asked that the flagging action be lifted. He further noted that CID and his command had reached a decision to not act on the substantiated findings. His command strongly supported his promotion. 8. On 17 July 2018 the Secretary of the Army (SA) removed the applicant from the FY15, CPT, ARNG of the United States (ARNGUS), Army Promotion List, (APL) Competitive Category, recommended list. 9. On 23 July 2018 the SA again directed the applicant's removal from the above- mentioned APL, and further directed the Chief, National Guard Bureau initiate elimination proceedings. 10. On an unknown date the applicant requested transfer to the Retired Reserve and separation from the VTARNG. His commander endorsed his request on 15 August 2019. The VTARNG, Deputy Chief of Personnel, Office of the J1, Personnel, concurred with the applicant's request on 30 October 2019. 11. On 1 October 2019, the applicant was transferred to the Retired Reserve based on completion of 20 years of service. 12. On 15 March 2021, the SA administratively removed the applicant from the FY19 CPT, ARNGUS, APL Competitive Category, Promotion List based on his transfer to the Retired Reserve constituting removal from an active status. This removal was not considered to have been a failed promotion to the next higher grade. 13. The applicant's record is void of derogatory documents/investigations related to his participation in the G-RAP. 11. The applicant provides: a. A DA Form 268, which shows a flagging action was initiated against the applicant on 24 March 2015, based on his elimination or removal from a selection list. b. Notification of recommendation for promotion to CPT by the FY15 CPT, APL PSB, 30 March 2017, and rebuttal to the delay of his promotion and referral to a PRB. 12. A CID Report of Investigation, dated 1 December 2022, shows the applicant was charged with making a false claim and a false statement, during the period 12 August 2008 to 1 September 2015. The basis of the investigation was that applicant had received $9000.00 in G-RAP payments for the recruitment and enlistment of six potential Soldiers and may have received payments to which he was not entitled. The U.S. Attorney's Officer, District of VT, declined to pursue any action as the dollar amount involved did not meet their prosecution threshold. In addition, neither the State Judge Advocate nor the U.S. Army Legal Service Agency, Procurement Fraud Branch, desired to pursue any disciplinary or administrative action. A supplemental review determined there was no probable cause to believe the applicant had committed a crime because there was a misunderstanding of the contract requirements and the implementation procedures at the time of the initial work on this investigation, and that an administrative error occurred in the application of the credible information standard of Department of Defense Instruction 5505.07 in the initial titling of him. Therefore, he was being deleted from the title block of the ROI. 13. A CID memorandum, 21 December 2022, partially denied his request for the release of information from the files of the Department of the Army CID. 13. On 28 December 2022, the Senior Integrator, Officer Division, Directorate of Military Personnel Management, Deputy Chief of Staff, G-1, provided an advisory opinion in this case. This official stated pursuant to Title 10, USC, Sections 1552, 14310, and 14502 the Army Review Board Agency may direct a change to the effective date of removal of the applicant from the FY15 APL PSB. Upon that change, the applicant would become eligible for a SSB based on the FY16 CPT APL PSB criteria. If selected for promotion, the SA may grant the applicant the same DOR, the same effective date for pay and allowances of the grade to which promoted, as he would have had if his name was not removed from the FY15 CPT APL PSB promotion list. a. This official provided the following background. (1) The applicant was selected for promotion to CPT by the FY15 APL PSB. He was withheld from the promotion scroll for further review of his records due to his involvement in the G-RAP and later referred to a PRB. The PRB recommended the applicant be removed from the promotion list. On 23 July 2018, the SA administratively removed the applicant from the promotion list pursuant to Title 10 USC 14310. (2) Due to the processing of his nomination, the applicant was not eligible for consideration by the FY16, FY17, or FY18 APL PSBs. Following removal, the applicant was recommended for promotion by the FY19 CPT APL PSB; however, he was removed from the promotion list on 15 March 2021 due to being transferred to the Retired Reserve. (3) On 21 December 2022, the applicant was notified that the Army CID determined there was an insufficient basis to title or index him in relation to the G-RAP investigation and that his name and identifying information had been removed from law enforcement systems, to include the Defense Clearance and Investigations Index (DCII) and the Federal Bureau of Investigation's Interstate Identification Index (FBI Ill). Based on this record's amendment, the applicant now seeks promotion reconsideration. (4) The applicant entered the Retired Reserve on 1 October 2019. b. Change to the Effective Date of Removal from the FY15 CPT APL PSB. Pursuant to Title 10 USC 14502, there is no statutory authority to conduct an SSB under the FY15 criteria. The applicant was considered and selected for promotion by the FY15 CPT APL PSB but was ultimately removed from the promotion list by the SA. Pursuant to Title 10 USC 14502, there are two statutory bases to conduct a PRB, neither of which apply to the applicant under the FY15 criteria: (1) Title 10 USC 14502(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) Title 10 USC 14502(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. c. Pursuant to Title 10, USC, 14310(c)(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 FY16, FY17, or FY18 CPT APL PSBs. d. In accordance with Title 10, USC, 14310(e), once an officer is removed from the promotion list, they then become eligible for promotion consideration. e. Service Secretaries may correct a Soldier's military record when necessary to correct an error or remove an injustice in accordance with Title 10 USC 1552(a). Corrections shall be made by the Secretary acting through a board of civilians. f. Analysis: Here, the lengthy processing delays of his nomination combined with a subsequent decision by the CID documenting the titling and indexing were erroneous, appear to create an injustice. g. Eligibility for consideration by SSB for the FY16 CPT APL PSB criteria. (1) In accordance with Title 10 USC 14310(e), once an officer is removed from the promotion list, they then become eligible for promotion consideration. (2) Pursuant to Title 10 USC 14502(a), officers who are eligible for but not considered by a promotion board based on administrative error are eligible for an SSB. h. Accordingly, provided the new date of removal is prior to the convene date of the FY16 CPT APL PSB, the applicant would be eligible for an SSB under the FY16 CPT APL PSB criteria as the records would show he was eligible for, but not considered by the FY16 CPT APL PSB. i. Correction of Military Records. (1) Under Title 10 USC 1552(a)(1) the Secretary of a military department may correct the military record of an officer or former officer in order to correct an error or remove an injustice. The correction, done by the Secretary, "shall be made by the Secretary acting through boards of civilians ...."Under 10 U.S.C. § 1552(b), no correction may be made unless the claimant files a request for correction within three years after he discovers the error or injustice." (2) The applicant has already requested correction of his military records from the ABCMR in order to affect the removal date from the FY15 board and an SSB for consideration for promotion to CPT. (3) To be eligible for correction, the ABCMR must specifically authorize the SA to correct applicant's records, to include a backdated date or rank, following an SSB, provided the SSB recommends him for promotion, and both the SSB and promotion are approved. j. This advisory opinion did not address the effect of the applicant's retirement on processing an SSB, retroactive promotion, or effective change to pay and entitlements. Based on the documents received, it appears that the applicant is currently assigned to the Retired Reserve. 13. The applicant was provided a copy of the advisory opinion. On 23 March 2023, he stated that he had not additional comment. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The issue related to the Meritorious Service Medal is premature and the applicant should address that via the process under Title 10, U.S. Code, section 1130. b. The evidence of record shows the applicant was appointed as a 1LT in the VTARNG on 15 October 2011. He was selected for promotion o CPT by the FY15 APL; however, because of post selection screening related to the G-RAP, the SA removed his name from the promotion list on 17 July 2018. While his case was pending a decision by the SA, he was not eligible for consideration by the FY16, FY17, or FY18 APL PSBs. Following removal, the applicant was recommended for promotion by the FY19 CPT APL PSB; however, he was removed from the promotion list on 15 March 2021 due to being transferred to the Retired Reserve on 1 October 2019 as a 1LT. On 1 December 2022, CID cleared him of wrongdoings in G-RAP payments for the recruitment and enlistment. c. The Board determine the lengthy processing delays of his nomination combined with a subsequent decision by the CID documenting the titling and indexing were erroneous, created an injustice. To correct this injustice, the Board determined a change to the effective date of removal of the applicant from the FY15 APL PSB is warranted. Upon that change, the applicant would become eligible for a SSB based on the FY16 CPT APL PSB criteria. If selected for promotion, the SA may grant the applicant the same DOR, the same effective date for pay and allowances of the grade to which promoted, as he would have had if his name was not removed from the FY15 CPT APL PSB promotion list. 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 and Army National Guard records of the individual concerned be corrected by: * amending the date the Secretary of the Army removed the applicant from the Fiscal Year 2015 (FY15) Army promotion List, from 23 July 2018 to one day after the FY15 was approved * submitting the applicant’s record to a duly-constituted SSB for promotion reconsideration to CPT based on the 2016, 2017, and 2018 year criteria * if he is not selected by any of the duly-constituted SSBs, the applicant should be so notified. * if the applicant is selected for promotion, correcting his records to show he met all the eligibility criteria for promotion (e.g., being assigned to a CPT's position or being in an active status) effective the date of release of the applicable promotion selection board, promoting him to CPT with the appropriate date of rank, and paying him any associated back pay and allowances as a result of the corrections 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, Section 14310, Removal of Officers from a list of Officers Recommended for Promotion, states the President may remove the name of any officer from a promotion list at any time before eth date of which the officer is promoted. a. Section 14310(c)(1), Removal after 18 Months, states if an officer whose name is on a list of officers approved for promotion under section 14308(a) of this title to a grade for which appointment is required by section 12203(a) of this title to be made by and with the advice and consent of the Senate is not appointed to that grade under such section during the officer’s promotion eligibility period, the officer’s name shall be removed from the list unless as of the end of such period the Senate has given its advice and consent to the appointment. b. Section 14310(e), Continued Eligibility for Promotion, states an officer whose name is removed from a list under subsection (a)-Removal by President, (b)-Removal for Withholding of Senate Advice and Consent, or (c)-Removal After 18 Months, continues to be eligible for consideration for promotion. If that officer is recommended for promotion by the next selection board convened for that officer’s grade and competitive category and the officer is promoted, the Secretary of the military department concerned may, upon the promotion, grant the officer 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 reserve active-status list, as the officer would have had if the officer’s name had not been removed from the list. 2. Title 10, U.S. Code, Section 14502(a), Officer Not considered because of Administrative Error, 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 an officer or former officer 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 officer (whether or not then on active duty) should be recommended for promotion. b. A special selection board convened under the paragraph listed above 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. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), states if the report of an 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. 4. 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 an 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). 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. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001289 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1