IN THE CASE OF:	

		BOARD DATE:	    5 February 2014

		DOCKET NUMBER:  AR20130017226 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the recommendation made by the Promotion Review Board (PRB) be upheld and that he be reinstated to the fiscal year (FY) 2012 Colonel (COL), Medical Service Corps (MS) Promotion Selection List.

2.  The applicant states he understands the Secretary of the Army (SA) has the authority to overrule the PRB; however, the preponderance of supporting documentation in approving the promotion was presented and a unilateral decision to dismiss the PRB's recommendation is unwarranted as indicated by his continued performance record.

3.  With a continued pattern of superior performance, he was selected as an alternate for the Senior Service College (SSC).  He was informed in August 2013 that he was awarded the 9A Proficiency Designator (Medical Proficiency (all Army Medical Department Corps), the highest achievement of professional excellence in the Army Medical Department (AMEDD) recognized by the Army Surgeon General.  All of these achievements occurred after the decision made by the SA to remove him from the FY 2012 COL, MS Promotion Selection List.  These selections show a continuous pattern of excellence and recognition at a higher rank.  

4.  He has not received any information from the SA's office on the reason he was removed from the promotion list despite sending a Freedom of Information Act request on 23 July 2013.

5.  The applicant provides:
* his Officer Record Brief
* an undated letter from the Office of the Inspector General (IG), U.S. Army Medical Research and Materiel Command, Fort Detrick, MD
* the applicant's letter, dated 20 October 2012, to the PRB, with seven letters of support
* a memorandum, dated 12 April 2013, from the Secretariat for Department of the Army Selection Boards, Fort Knox, KY
* a memorandum, dated 2 July 2013, from the SA
* a memorandum, dated 8  July 2013, from the U.S. Army Human Resources Command (HRC)
* a letter, dated 23 July 2013, from the applicant to the Deputy Chief of Staff, G-1
* seven Officer Evaluation Reports (OER) 
* documents showing he was awarded the "A" Proficiency Designator
* FY 2013 Army Special Branches SSC Board Results for AMEDD, Judge Advocate General (JAG) Corps, and Chaplain Officers

CONSIDERATION OF EVIDENCE:

1.  The applicant is a lieutenant colonel (LTC), MS, currently serving on active duty in the Regular Army.  He was promoted to LTC on 1 February 2008.

2.  An undated letter from the IG, U.S. Army Medical Research and Materiel Command, Fort Detrick, MD notified the applicant, then a major (MAJ), they had received an allegation that he improperly promoted a personal business venture to others in his organization in violation of Department of Defense (DOD) Regulation 5500.7-R (Joint Ethics Regulation), section 5-409.  The allegation was referred to the chain of command for appropriate action.  An investigation was initiated under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  Using information from the investigation and an IG inquiry, the IG determined that the allegation against him was substantiated.

3.  He was selected by the FY 2012 COL, MS Promotion Selection Board and placed on the Promotion Selection List.  He was referred to a PRB.  He was notified of the referral and provided an opportunity to respond.

4.  His notification of referral to a PRB is not available for review.

5.  On 20 October 2012, he submitted a letter, with seven letters of support, to the President of the PRB.  He indicated he fully understood the concern about issues that occurred in his past.  These issues did not, in any way, reflect his true character, and given the chance he would continue to fulfill his responsibilities with honor and distinction.

	a.  He stated the substantiated IG allegation resulted in a general officer memorandum of reprimand (GOMOR).  This was a serious judgment error on his part and he stated he deeply regretted it and its impact on his unit and those depending on him.  He learned much from the experience.  Since that time, he had been selected for promotion twice, he had received a top secret/sensitive compartmented information security clearance, and his performance had been exemplary in three different assignments to include a 15-month deployment in Iraq.

	b.  He stated the U.S. Army Criminal Investigation Command (CID) report was based on an incident that was investigated thoroughly and found to be unsubstantiated.  The junior officer who filed the charge was earlier transferred out of the unit for rehabilitation purposes and shortly after was involuntarily separated from the Army. 

	c.  He stated a speeding citation occurred over 26 years ago when he was a junior enlisted in the 82nd Airborne Division and did not have any impact on him becoming a noncommissioned officer and earning an Army Reserve Officers' Training Corps Green to Gold Scholarship.

6.  In an undated letter to the PRB, Major General (MG) C____ strongly supported retaining the applicant on the FY 2012 COL, MS Promotion Selection List.  

	a.  MG C____ imposed a GOMOR on the applicant, then a MAJ, for engaging in a private business in a government workplace.  After considering all matters submitted to him, MG C____ filed the GOMOR locally.

	b.  MG C_____ believed the GOMOR was sufficient discipline for the offense committed and it obviously served the intended purpose of making the applicant recognize the seriousness of his actions and the consequence his actions had on him as an Army officer and on his unit.  It is obvious from his phenomenal record that he had contributed immensely to the Army and to the security of the Nation.

	c.  MG C____ believed the applicant should be allowed to continue to contribute to the AMEDD and the Army for years to come as a COL.

7.  In a letter, dated 16 October 2012, to the PRB, COL B______ strongly recommended the applicant receive favorable consideration in his review for promotion to COL.  He was the applicant's commander during the events in question.

	a.  The first incident involved him dealing with a troubled, insolent junior officer, who, in an effort to harm the applicant, then a MAJ, greatly exaggerated the events in the CID report.  After an inquiry, he could not substantiate the charge of the junior officer.

	b.  The IG complaints were related to the applicant's, then a MAJ, business ventures and exhibited poor judgment.  This was the only demonstrated flaw in an otherwise superb officer and innovator.  He received a GOMOR that was filed locally.

	c.  Instead of allowing his mistake to get the best of him, the applicant learned from it and became a model officer.  His loyalty and dedication to the Army was without question.  He received a unanimous Medical Command (MEDCOM) recommendation to nominate him as DOD Chief Information Officer (CIO) of 2011, ahead of over 100 other AMEDD officers.  He overcame great odds, took responsibility for his mistake, and was a much better officer for it.  It would be a mistake not to promote him.

8.  In a memorandum, dated 18 October 2012, to the PRB, MG W___ strongly recommended the applicant's retention on the FY 2012 COL, MS Promotion Selection List.  MG W___ stated:

	a.  The applicant consistently exceeded his expectations while serving as the CIO of the DOD's largest and only level 1 trauma and burn center.  He was a superb leader who ensured that all missions start and end with improving services to the patient.  He had been consistently impressed with the amount of unsolicited compliments that the applicant's actions earn from their clinical and administrative staff.

	b.  He observed the applicant's conduct first-hand over 14 months and knew him to be a man of tremendous character who epitomizes Army values.

	c.  The applicant personally explained the situation leading to the PRB action and discussed the case in detail with MG C____.  He believed the applicant had clearly learned from his error and was moving forward in a highly successful manner.  He wanted the applicant to remain on the Army team and to serve as a COL in MEDCOM.
   
   
9.  In a memorandum, dated 19 October 2012, to the PRB, Brigadier General (BG) D____ strongly recommended that the applicant be retained on the 
FY 2012 COL, MS Promotion Selection List.

	a.  He stated the applicant was truly one of the MS's rising stars as evidenced by his numerous and highly-successful senior level assignments.  

	b.  He strongly believed that MG C____'s locally-filed GOMOR was sufficient punishment for the one-time incident.  The applicant learned a valuable lesson from his experience, which only made him into a stronger leader.

	c.  The Army, AMEDD, and MS cannot afford to lose an officer of the applicant's caliber.  He stated he had the utmost confidence in the applicant's current and future leadership abilities.  

10.  In a memorandum, dated 22 October 2012, to the PRB, COL H______ recommended the applicant's retention on the FY 2012 COL, MS Promotion Section List.

	a.  He had direct personal and professional knowledge of the applicant since 1986 and he had twice served under his command, at both the battalion and brigade levels.  His duty performance was unquestionably outstanding and he had never known the applicant to intentionally do wrong or attempt to profit either personally or professionally from the loss of others.

	b.  He was the chief of staff of the applicant's unit when the incident which brought his record before the PRB was adjudicated and closed in June 2007.  He personally observed the applicant's behavior and performance during the period in question.  His offense included neither malice nor deceitful intent and, as intended by the chain of command, he profited from the experience by maturing and reaffirming his commitment to excellence in all facets of his professional life.

11.  In a memorandum, dated 23 October 2012, to the PRB, COL C_______ strongly recommended the applicant be retained on the FY 2012 COL, MS Promotion Selection List.

	a.  He stated he had known the applicant for over 17 years.  His professional demeanor and commitment in helping others set him apart from others.  His reputation among senior AMEDD leaders, including retired general officers and COLs, was one that includes being technically competent, professional, and a passionate leader who lives by the Army values and warrior ethos.

	b.  He stated the applicant shared the findings of the investigations that resulted in a locally-filed GOMOR.  The punishment he received was appropriate given that the applicant immediately ceased his wrongdoing, fully cooperated and was forthcoming with information during the investigation.  He has grown personally and professionally from his lapse in judgment.  

	c.  He had no doubt the applicant would continue to lead Soldiers and civilians with the compassion, character, and professionalism that is required in senior leaders.  His selection for promotion to COL clearly demonstrated that he possessed the abilities to perform at senior levels in the Army and AMEDD.

12.  In an undated letter to the PRB, COL R_____ stated the applicant was a dedicated, responsible, and extraordinary senior Army leader whom he had personally known and observed through their common professional duties.

	a.  As one of the applicant's personal and professional mentors over the years, he had the utmost admiration and respect for his abilities and personal character.  He had personal courage and integrity which are essential attributes to lead in combat, manage in peace, and required for promotion in today's Army.

	b.  Based on personal observation, he believed and would absolutely support the applicant's ascendance above his peers to become the MEDCOM Chief Information Officer.

	c.  His strong endorsement for the applicant was given freely, without reservation and was consistent with the good order of the Army.  He stated he believed the applicant must retain his promotable status and be given positions of greater responsibility for which he is well suited.

13.  On 12 April 2013, a PRB was convened to review the applicant's file.

	a.  The reason for referral to a PRB was that the applicant, then a MAJ, had received a substantiated allegation, dated 24 March 2008, for improperly promoting his personal business venture to others in his organization, in violation of DOD 5500.7-R, section 5-409 (Commercial Dealings Involving DOD Employees).

	b.  The applicant submitted a rebuttal with seven letters of support that were provided to the board for consideration in its deliberations.

	c.  After reviewing his overall record, a majority of the members of the board recommended that the applicant be retained on the FY 2012 COL, MS Promotion Selection List.
	d.  The PRB recessed on 12 April 2013.

14.  On 2 July 2013, the SA directed the applicant's name be removed from the FY 2012 COL, MS Promotion Selection List under the provisions of Title 10, U.S. Code (USC), section 629(a); Executive Order 12396; and Army Regulation 600-8-29 (Officer Promotions), paragraph 8-1b.

15.  On 8 July 2013, the applicant was notified by HRC of the SA's decision to remove him from the FY 2012 COL, MS Promotion Selection List.

16.  On 23 July 2013, the applicant filed a request with the Deputy Chief of Staff, G-1, under the Freedom of Information Act for a copy of all documents that the SA had available when he made the final decision to remove him from the FY 2012 COL, MS Promotion Selection List.

17.  The applicant provided seven OERs covering the periods from 18 August 2007 to 23 January 2013.  All seven OERS showed:

* his raters rated him as "Outstanding Performance, Must Promote"
* his senior raters rated him as "Best Qualified" and "Above Center of Mass"

18.  On 19 August 2013, he was awarded the 9A Proficiency Designator.

19.  He provided a copy of the FY 2013 Army Special Branches SSC Board Results for AMEDD, JAG, and Chaplain Officers that shows he was placed on the Alternates List.

20.  The annual SSC selection board reviews the files of LTCs after their 16th year of service.  The SSC is the final major military educational program available to prepare officers for the positions of greatest responsibility in the DOD.  Resident seats available each academic year within the SSC network include attendance at the Army War College, the Industrial College of the Armed Forces, National War College, other Service colleges, and resident fellowships at governmental agencies and academic institutions.  The SSC selection board examines the eligible population and produces an order of merit list containing names.  Generally, the top one third are activated for resident attendance while the remainder are contacted by their branch or functional area managers and encouraged to apply for active duty annual seats in the U.S. Army War College Distance Education Course.  

21.  In the processing of this case an advisory opinion was received from the Chief, Officer Promotions, Special Actions, HRC.

	a.  HRC stated that based on a review of their records and the information provided, the applicant's request for relief could not be supported.

	b.  The PRB recommendation is only an advisory to the SA and is in no way binding as the SA's final decision may run contrary to the PRB's recommendation.

	c.  The exact reasons for the SA's final decision are not known.  Every aspect of the existing law and policy was adhered to in adjudicating his PRB.

22.  The applicant was provided a copy of the advisory opinion and an opportunity to submit comments in response thereto.  However, he declined to make any further comments concerning the disposition of his case.

23.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  This regulation supports the objectives of the Army's officer promotion system, which include filling authorized spaces with the best qualified officers.  It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

	a.  Paragraph 1-15 provides that a post-board screening will be conducted for officers selected for promotion to COL.  A board will review any adverse information in other official files, for example, those maintained by the CID and the Department of the Army Inspector General (DAIG), including the restricted portion of the Army Military Human Resource Record (AMHRR).  These files are screened to ensure that officers who have engaged in conduct that would warrant their non-selection for promotion, if known by the original selection board, are not promoted.  The files of those officers, along with the derogatory information, may be presented to a PRB to reevaluate the recommendation for promotion to COL.  The officers concerned will be notified and offered an opportunity to respond to the board.  The PRB will be conducted as prescribed in chapter 8 (Promotion Review Boards).

	b.  Paragraph 8-1b states the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (Title 10, U.S. Code, section 629(a)). This authority has been delegated to the Secretary of the Army.  PRBs are used to advise the SA in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion.
	c.  Paragraph 8-2a states Headquarters, Department of the Army (HQDA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.

	d.  Paragraph 8-2b states that among the reasons an officer may be referred to a PRB is other derogatory information received by HQDA but not filed in the AMHRR, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.

	e.  Paragraph 8-2d states that for officers selected for promotion to COL, HQDA will conduct a post-board screening of the restricted fiche of recommended officers and information in other official files such as those maintained by the CID and the DAIG.  A review board convened at HQDA will consider any adverse information from this screening and advise the Deputy Chief of Staff (DCS), G-1, or the DCS, G-1’s designee, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB.

	f.  Paragraph 8-6 states that before a PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board.  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation.

	g.  Paragraph 8-8 states that the PRB's recommendation is only advisory to the SA.  In cases involving promotion to the grade of colonel or below, the board's report will be forwarded to the SA who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the DCS, 
G-1, or direct other appropriate action.

	h.  Paragraph 8-10 states that an officer whose name is removed from a promotion list continues to be eligible for consideration for promotion under Title 10, U.S. Code, sections 629(c) and 579(c).  The next regular selection board convened to consider officers for promotion to that grade and competitive category will consider the officer (if otherwise eligible), provided this removal action does not constitute the officer's second non-selection for separation purposes.  If the next board does not recommend promotion, this will constitute the officer's second non-selection.
	i.  If the next board recommends promotion, the officer may petition the SA to be granted the same DOR and position on the active duty list the officer would have had if the officer's name had not been removed from the promotion list.

	j.  If the next selection board that considers an officer in a grade below colonel does not recommend the officer for promotion, or if the officer's name is again removed (either from the report of the selection board or from the promotion list), or, in the case of promotion to grades above captain, the Senate does not give its advice and consent to the promotion, the officer will be considered for all purposes to have twice failed selection for promotion.

24.  Title 10, U.S. Code, section 629(a) states the President may remove the name of any officer from a list of officers recommended for promotion by a selection boarded convened under this chapter.

25.  Section 1 of Executive Order 12396 states the President delegates to the Secretary of Defense the authority vested in the President by Title 10, U.S. Code, section 629(a) to remove the name of any officer from a promotion list to any grade below BG.  Section 3 states the authority delegated to the Secretary of Defense by this Order may be redelegated to the Secretaries of the military departments.

DISCUSSION AND CONCLUSIONS:

1.  The Board carefully considered the applicant's request.  After a thorough review of the applicant’s request and the facts surrounding this case, it is concluded that the SA's removal of the applicant from the FY 2012 COL, MS Promotion Selection List was authorized under law and Army regulation. 

2.  The records show his request along with his rebuttal was reviewed by the PRB and would have been considered by the SA prior to his decision.  The decision by the PRB is only a recommendation to the SA.  The exact reasons why the SA's final decision was to remove the applicant from the FY 2012 COL, MS Promotion Selection List are not known.  The applicant’s stellar record has been considered.  However, in this time of downsizing and absent compelling reasons, it would not be appropriate for the Board to overturn the SA’s decision to exercise his discretion in not accepting the PRB’s recommendation.

3.  In view of all of the foregoing, the Board finds no error in this case.  Therefore, the applicant is not entitled to reinstatement on the FY 2012 COL, MS Promotion Selection List.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20130017226



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ABCMR Record of Proceedings (cont)                                         AR20130017226



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