IN THE CASE OF:	  

		BOARD DATE:	  23 July 2014

		DOCKET NUMBER:  AR20140004245 


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 a change of his rank/grade from lieutenant colonel (LTC)/O-5 to colonel (COL)/O-6 effective 9 February 2011 with back pay to that date.

2.  The applicant states the National Guard Bureau (NGB) failed to comply with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) and its own internal memorandum titled "Deployed Title 10 AGR [Active Guard Reserve] Officer Promotion Guidance," dated 1 July 2007, when it failed to process his promotion to COL.

3.  He provides the following background information:	

	a.  On 8 April 2010, he was recalled by the Puerto Rico Army National Guard (PRARNG) from his Title 10 AGR status at NGB for the purpose of deploying with the 92nd Maneuver Enhancement Brigade as the Deputy Commanding Officer in a COL position.

	b.  On 27 August 2010, an investigation under the provisions of (UP) Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) was initiated to examine an allegation that he engaged in an inappropriate relationship with a subordinate Soldier.  On that same date he was flagged.

	c.  On 29 September 2010, he was issued a General Officer Memorandum of Reprimand (GOMOR).

   d.  On 19 October 2010, he was selected for promotion to COL.

	e.  On 8 February 2011, his flag was removed. 

	f.  On 15 June 2012, he submitted a complaint to the Department of the Army Office of the Inspector General (DAIG) explaining that NGB, the ARNG, and Human Capital Management (HCM) failed to comply with personnel action prescribed by Army regulations.  The DAIG referred the action to the NGB IG for appropriate action.

	g.  The NGB IG found that ARNG-HCM made an administrative error by not affording him the opportunity to make a written statement to the Secretary of the Army (SA) in accordance with (IAW) with Army Regulation 135-155, paragraph 4.  Despite this finding, the NGB IG stated the error did not cause the delay in promotion.

4.  He provides the following discussion:

	a.  Appropriately, NGB delayed his promotion because he was flagged pending a filing determination of the GOMOR.  Additionally, NGB was within its authority when it decided to remove him from a future COL assignment.  However, it had no authority to stop the processing of his promotion once the flag was removed.

	b.  Paragraph 4-21d of Army Regulation 135-155 states that AGR officers selected by a mandatory board will be promoted provided they are assigned to a position in the higher grade.  As explained in the "Promotions for ARNG Title 10 AGR Officers" memorandum, officers are promoted by their respective State/Territory.

	c.  Finally, the "Deployed Title 10 AGR Officers" memorandum contemplates a situation where an AGR is deployed and NGB is either unable or unwilling to promote the officer.  Paragraph 5 of the memorandum states that "T-10 ARNG Soldiers who are not approved by NGB for promotion but are otherwise eligible may be promoted but will forfeit their right to automatically return to the T-10 AGR program in the next higher grade."

	d.  At the time of the promotion announcement and when the flag was lifted on 8 February 2011, he was in a COL position.  Pursuant to Army Regulation 135-155, paragraph 4-21d he was required to have been promoted once the flag was lifted and The Adjutant General, Puerto Rico (TAG-PR) is the office to complete the promotion.  NGB ARZ-HCM stopped the action and failed to forward this action to TAG-PR after the removal of the flag for final GOMOR filing determination.  Accordingly, absent NGB HCM's failure to process his packet when the flag was removed, he would have been promoted on 9 February 2011.

5.  His conclusion is that based on the foregoing, he should be promoted to the rank of COL with a promotion date of 9 February 2011 with back pay to 9 February 2011 because he was in a COL position when this promotion process started in October 2010.

6.  The applicant provides:

* memorandum to the Board
* NGB Orders 60-1
* PRNG Element, Joint Force Headquarters Orders 082-513
* GOMOR
* Fiscal Year (FY) 10 COL Reserve Component (RC) Army Promotion List (APL)
* recommendation for promotion
* Army Physical Fitness Test scorecard
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 2-1 (Personnel Qualification Record)
* Individual Medical Readiness printout
* NGB ARNG-HCM memorandum, subject: FY 11 MAJ to LTC and LTC to COL Promotion Recommendation List with attached FY11 T10 AGR CFR and Slating Promotion Recommendations
* GOMOR filing determination
* removal from list of officers slated for COL assignments
* NGB Orders 84-8
* DAIG letter to the applicant
* NGB IG letter to the applicant
* Deployed Title 10 AGR Officer Promotion Guidance
* memorandum, subject: Promotions for ARNG Title 10 AGR Officers
* email related to applicant's Army Board for Correction of Military Records (ABCMR) case
* The Puerto Rico Adjutant General's recommendation for his promotion

CONSIDERATION OF EVIDENCE:

1.  On 7 October 2004, the applicant was promoted to LTC in the ARNG.

2.  NGB Orders 60-1, dated 1 March 2010, show he was to be released from his Title 10 AGR status and returned to the control of the PRARNG effective 19 April 2010 for the purpose of mobilization and deployment in support of Operation Iraqi Freedom/Operation Enduring Freedom.

3.  On 9 September 2010, Major General (MG) PM, Headquarters, 21st Theater Sustainment Command, reprimanded the applicant as follows:

You are reprimanded for engaging in an inappropriate relationship with a subordinate Soldier in your command in violation of the Army’s fraternization policy, Army Regulation 600-20 (Army Command Policy).  Your lack of judgment in this matter is not acceptable.  Your actions, and the perception they have created, contributed to a poor command climate and negatively impacted your authority and ability to lead Soldiers.  Further, your actions have seriously undermined unit cohesion, effectiveness, and good order and discipline within Multinational Battle Group (East).

We hold senior commissioned officers to the highest standards.  Therefore, it seriously concerns me that you would allow a command climate that fosters the perception that the Army’s fraternization policy does not apply to its leaders.  Your involvement in an inappropriate relationship with a subordinate illustrates a lack of self-discipline.  Be advised that any future misconduct could result in far more serious consequences.

	a.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).

	b.  The applicant acknowledged that he had read and understood the unfavorable information against him and elected to submit a statement.  On 14 October 2010, he provided a rebuttal statement to the imposing authority (IA), stating, in effect, he took full responsibility for his actions and recognized that the reprimand was appropriate.  He respectfully requested that he be allowed to continue to serve in the Army without this blemish in his Official Military Personnel File (OMPF).

4.  On 18 October 2010, his Headquarters, Multinational Battle Group (East) Kosovo Forces 13, Commander recommended him for promotion to COL.  The recommendation memorandum shows the grade, assignment, and unit for which he was being recommended was an O6/COL/Deputy Commanding Officer position. 

5.  The FY10 COL RC APL with a release date of 19 October 2010 has his name listed.

6.  NGB ARNG-HCM memorandum, subject: FY11 MAJ to LTC and LTC to COL Promotion Recommendation List, dated 20 December 2010, states the ARNG leadership had conducted the FY11 Title 10 AGR officer slating during October-November 2010 and established a movement scheme including promotion requirements.  The memorandum stated in paragraph 4 that each Soldier recommended for promotion must meet the established criteria for their State/Territory Federal recognition boards to include all regulations, policies, processes, and procedures governing promotions.  The applicant's name is listed on the attached enclosure among those recommended for promotion to COL.

7.  On 8 February 2011, the GOMOR IA stated the applicant had acknowledged receipt of the administrative reprimand and elected to submit matters on his behalf.  The IA determined the administrative reprimand was to be filed permanently in the Soldier’s OMPF.  The reprimand was forwarded for filing.

8.  On 7 March 2011, NGB notified the applicant of his removal from the list of officers slated for a COL assignment.  The decision was based on the administrative reprimand he received from MG PM, dated 29 September 2010, which was filed in his OMPF.  The memorandum stated HCM continually reviews records to provide career guidance and monitor performance of Soldiers serving in the Title 10 AGR program.  It further stated HCM reviews the assignment slating lists to ensure that no officer is assigned to a position who had become mentally, physically, morally, or professionally disqualified after being identified for an assignment that might lead to promotion.

9.  NGB Orders 84-8, dated 25 March 2011, ordered him to active duty in the AGR program at the ARNG Readiness Center effective 13 May 2011 to serve as a branch chief.

10.  On 3 July 2012, an official from the DAIG office informed him that his IG Action Request to the DAIG alleging that the NGB, ARNG, and HCM failed to comply with personnel actions prescribed by Army regulations was being referred to the NGB IG given that the matters he presented were under the jurisdiction of the NGB.

11.  On 25 July 2013, the NGB IG office responded to the applicant regarding his DAIG request mentioned above.  The NGB IG official stated a thorough inquiry did not find that NGB ARNG-HCM delayed his promotion to COL without following the established due process procedures required by Army Regulation 600-8-29 (Officer Promotions) and Army Regulation 135-155.  The NGB IG official stated that as a result of his being flagged during an Army Regulation 
15-6 investigation all actions as they pertained to his promotion were delayed IAW with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)), paragraph 1-19 (a) (4), which states, "An officer's promotion is automatically delayed…under investigation that may result in disciplinary action of any kind being taken against him or her."  On 19 October 2010, his name was published on the FY10 COL RC APL.  On 20 December 2010, his name was published on the NGB ARNG-HCM FY11 MAJ to LTC and LTC to COL Promotion List.  On 8 February 2011, his flag was removed.

   a.  The official continued by stating that once his flag was removed, 
ARNG-HCM made an administrative error by not affording him the opportunity to make a written statement to the SA IAW Army Regulation 600-8-29, paragraph 1-20b and Army Regulation 135-155, paragraph 4-11d, which states, "If a promotion is delayed, the officer must be given an opportunity to make a written statement to the SA for their consideration."  However, the error was in no way the cause of the delay in his promotion to COL.  After a review of his records, NGB notified the applicant he was removed from the list based on the administrative reprimand he received in September 2010.  The NGB IG official further stated that it was important to note that ARNG-HCM "Promotions for ARNG Title 10 AGR Officers," dated 20 December 2010, does state that "Being DA select for promotion does not guarantee a promotion.  All Title 10 AGR promotions must be approved by the NGB leadership."  Additionally, in August 2011, an "FY 12, Title 10 AGR Officer Promotion Recommendation Board" was conducted to evaluate his potential to serve in the next higher grade, and his overall rating was 210 of 270 Soldiers.  That rating placed him in the bottom third.
   
   b.  Furthermore, a thorough review of his case was conducted with the subject matter experts from NGB Officer Policy Branch and HCM and all agencies agreed with the above arguments.  In addition, those agencies stated that the rules for promotion of mobilized officers as explained in the Personnel Policy Guidance (PPG), chapter 13-10(a)(1) and (2a and b), irrespective of a valid vacancy, do not extend promotions to the grade of COL.  Those rules only applied to officers in the grade of captain through LTC.

12.  An email from a PRARNG official, dated 25 February 2014, states that with regard to the ABCMR request submitted by the applicant, the PRNG found his allegation that NGB ARNG-HCM delayed his promotion to COL without following the established due process procedures required by Army Regulation 600-8-29 and Army Regulation 135-155 unfounded and they agreed with NGB IG analysis.

13.  In the processing of this case, on 11 March 2014, an advisory opinion was obtained from NGB, Chief, Personnel Policy Division.  The advisory official recommended disapproval of the applicant's request for promotion to COL effective 9 February 2011, the day after removal of the flag.

   a.  The advisory official listed the timeline of events in the applicant's case.  This timeline shows the applicant was removed from the promotion list on 7 March 2011 due to the letter of reprimand.  The official then stated that the applicant did not have an endorsement by the Adjutant General of the PRNG recommending his promotion.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions, 15 April 1994), Chapter 8, Section IV (Promotion of ARNG Officers Serving on Title 10 AGR Tours), paragraph 8-20c, states, "If the State does not desire to promote the officer, the NGB, AGR Management Branch will be notified and the promotion will be terminated."

	b.  NGB removed the applicant from the list of officers of COL assignments on 7 March 2011.  NGB memorandum, subject: Promotions for ARNG Title 10 AGR Officers, dated 20 December 2010, paragraph 2 states, "Being DA select for promotion does not guarantee promotion.  All Title 10 AGR promotions must be approved by NGB leadership."

	c.  The advisory official further stated that the NGB IG had investigated the applicant's claim that he should be promoted to COL and determined this claim to be unfounded.  The PRARNG concurred with the advisory recommendation.

14.  A PRARNG official further stated in an email that the applicant's commander's memorandum recommending him for promotion was not endorsed by the NGB G1 nor approved by the TAG-PR as a valid vacancy for which he could be promoted.  There was also no evidence the applicant had acknowledged that if there were no position vacancy available to him after mobilization that he would be involuntarily transferred to the Individual Ready Reserve (IRR), making his promotion package an incomplete one.

15.  In response to the advisory opinion, he provides a memorandum from the previous PRNG Adjutant General.  The former Adjutant General indicated in his memorandum that when a Title 10 AGR Soldier who was DA selected for promotion was serving in a deployed unit in a higher grade, appeared before a Career Field Review Panel, was approved for promotion by NGB leadership, and was recommended for promotion by the current chain of command in the deployed unit, NGB was supposed to coordinate the promotion within NGB and the State.  Although the Adjutant General is the promotion authority, NGB has to agree with the promotion.  If an Adjutant General promotes a deployed Soldier and NGB does not agree with the promotion, the Soldier would not be able to return to the AGR program.  He states that during his tenure as the Adjutant General of the PRNG, he did not receive any correspondence from NGB regarding the applicant's promotion.  If there had been any coordination between NGB and his command, he would have approved the applicant's promotion and if NGB had chosen to remove him from the Title 10 AGR program he would have enjoyed having him serve in Puerto Rico in a COL position.

16.  On 10 April 2014, in a response to the NGB advisory opinion, he requested that the Board reject NGB's recommendation because it failed to address requirements listed in Army Regulation 135-155 as it did not address NGB's failure to coordinate his promotion with his state as they were required to do in accordance with their own policy.

17.  He provides a memorandum to the Board, dated 18 April 2014, wherein the Adjutant General, PRNG, requested reconsideration for promotion of the applicant to COL.  The Adjutant General stated that the advisory official's statement that the PRNG concurred with their recommendation did not represent the opinion of that command.

18.  NGB ARNG-HCM memorandum, subject:  Deployed Title 10 AGR Officer Promotion Guidance, dated 1 July 2007, stated that officers who appeared before the Career Field Review Panel and were approved for promotion by the NGB leadership to the next higher grade prior to or during deployment may be promoted if currently serving in the deployed unit in a position of the higher grade subject to the request of the current chain of command in the deployed unit.  NGB-ARZ-T would coordinate the promotion process within NGB and the State as well as ensure the officer meets all other eligibility requirements.  

19.  NGB ARNG-HCM memorandum, subject:  Promotions for ARNG Title 10 AGR Officers, dated 20 December 2010, states that being DA select does not guarantee a promotion.  It also states that all Title 10 AGR promotions must be approved by the NGB leadership.

20.  National Guard Regulation 600-100 provides that States are only authorized to promote Title 10 AGR officers and continue them on active duty when the officer is serving in a higher grade Modified Table of Organization and Equipment (MTOE)/Table of Distribution and Allowances position and an appropriate grade authorization has been provided to the respective State by the NGB, AGR Management Branch.

21.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.

	a.  Paragraph 1-15 states 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 U.S. Army Criminal Investigation Command and the DAIG, including the restricted portion of the OMPF.  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.

	b.  Paragraph 1-20, delay of promotion, states the promotion of any officer who is in a non-promotable status is automatically delayed.  DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay.  The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible.  If a DA Form 268 is in effect at the time an officer’s name is announced on a promotion list, the officer’s commander will immediately notify him or her of the reason for the delay.  An officer whose promotion has been delayed may make a written statement, expeditiously forwarded through the chain of command, to the SA.

22.  Department of the Army PPG for Overseas Contingency Operations, 1 July 2009 provides guidance on promotion of ARNG officers.  Chapter 13 contains information concerning RC Promotions. 

	a.  Paragraph 13-10a addresses general information concerning commissioned officer promotions.

	b.  Paragraph 13-10a(2) states officers mobilized UP Title 10 U.S. Code, section 12302 (10 USC, 12302) and officers other than Army Reserve officers on Active Duty for Operational Support tours (UP 10 USC 12301(d)) may be matched against a vacant higher grade Selected Reserve position to be promoted.  Upon release from active duty/completion of the tour of active duty on which the officer is promoted, the officer will be assigned against that position within 180 days.  If the officer, upon completing his or her current tour of active duty declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, then the officer - whether a member of the U.S. Army Reserve or ARNG - shall be transferred immediately to the IRR unless assigned to some higher grade RC position within 180 days after completing his or her current tour of active duty.

	c.  Paragraph 13-10a(5) states while mobilized, AGR Soldiers will not be promoted over-grade in the mobilized position.  States will not be authorized additional "controlled" grades solely for the purpose of reaccessing into the AGR program Soldiers who were promoted while mobilized.

	d.  Paragraph 13-10b(1) states that the promotion authority for ARNG officers ordered to active duty UP 10 USC 12302 or 12304 is the Chief, NGB. 
	e.  Paragraph 13-10b(3) states ARNG officers DA selected for promotion by a DA Mandatory promotion board, but not promoted before being mobilized, or who were selected for promotion by a DA Mandatory promotion board while mobilized may be promoted immediately when appointed in the state against a position of the higher grade the officer will occupy upon demobilization.  This policy applies only to DA mandatory promotion selectees.  It further states that a mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade.  

	f.  A previous Board case shows that clarification from the Officer Career Policy Branch, Army G-1, noted that this provision in the PPG should have had an exclusionary statement for DA Selected LTCs.  That office noted that a DA selected mobilized officer could be promoted to COL if matched against a position vacancy in the Selected Reserve.  Otherwise, officers could be promoted without regard to position vacancy when they reached their promotion eligibility date UP 10 USC 14304(b), but this was only for promotion up to LTC.  Therefore, a DA selected mobilized LTC who is not matched against a position in the Selected Reserve must go to the IRR to be promoted after demobilization or decline the promotion.

23.  Army Regulation 135-155 states AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned or attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum time-in-grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was assigned to a valid higher-graded position when he was selected for promotion and absent NGB's failure to process his promotion packet when the flag was removed he would have been promoted to COL was carefully considered.  However, his request for change of his grade from LTC to COL effective 9 February 2011 is not supported by the evidence.

2.  The applicant was released from his LTC Title 10 AGR position at NGB and was returned to the control of the PRARNG effective 19 April 2010 for the purpose of mobilization and deployment with the PRARNG.  He was assigned to a COL position during his deployment.

3.  Evidence shows he was flagged on 27 August 2010 and on 9 September 2010 he was issued an administrative reprimand.

4.  His name was listed on the FY10 COL RC APL released on 19 October 2010.

5.  On 20 December 2010, NGB notified him that he was recommended for promotion to COL.

6.  On 8 February 2011, the administrative reprimand was directed to be filed in his OMPF.  The flag was removed effective the same day.

7.  National Guard Regulation 600-100 provides that States are only authorized to promote Title 10 AGR officers and continue them on active duty when the officer is serving in a higher grade MTOE/TDA (non-mobilized AGR) position and an appropriate grade authorization has been provided to the respective State by the NGB, AGR Management Branch.  Paragraph 13-10a(5) of the PPG states while mobilized, AGR Soldiers will not be promoted in the mobilized position above the grade of their assigned AGR position.  As such, his contention that NGB should have processed his promotion packet when his flag was removed because he was in a valid higher grade (mobilized COL) position is without basis.

8.  Due to his recommendation for assignment and promotion to COL, HCM conducted a post-board review of his records as required by regulation.  On 7 March 2011, NGB removed the applicant from the COL promotion list and from the list of officers slated for a COL assignment based on the administrative reprimand he received from MG PM, which was filed in his OMPF. 

9.  A former Adjutant General of the PRNG indicated in response to the NGB advisory opinion that he would have accepted the applicant in a COL position at the time had NGB coordinated with him.  However, the NGB advisory official statement that "If the State does not desire to promote the officer, the NGB, AGR Management Branch will be notified and the promotion will be terminated" seems to imply that the PRNG had indicated at the time that it did not want to promote the applicant.  Nevertheless, this is a moot point since NGB had removed him from the promotion list.  

10.  NGB had the authority to and did disapprove his promotion due to his having adverse information in his OMPF, the nature of which would have warranted his non-selection for promotion if known by the original selection board.  Based on the NGB IG statement that he was in the bottom third of those considered by a subsequent board and the fact that he has not subsequently been selected for promotion to COL, it is evident that NGB properly determined he should not be promoted to COL based on the results of the FY10 COL RC APL.  Therefore, given that the applicant was no longer promotable based on the FY10 COL RC APL there was no reason to further process his promotion packet.

11.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140004245



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ABCMR Record of Proceedings (cont)                                         AR20140004245



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