BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140013320 


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 correction of his records by any means necessary for:

* a backdated promotion to the rank/grade of colonel (COL)/O-6
* back pay and allowances
* an adjustment to his retired pay

2.  The applicant states:

	a.  In December 2006, he reported his commander's attempt to bypass the regulation as opposed to following appropriate hiring practices or following the promotion program.  As a result, he incurred at least five retributive and/or multiple jeopardy effects on his career, such as:

* receipt of a referred officer evaluation report (OER) (hereafter referred to as the contested OER) that was successfully appealed
* his rater filed an Inspector General (IG) complaint that resulted in a general officer memorandum of reprimand (GOMOR) spearheaded by the judge advocate general (JAG)
* his OER appeal directed investigations that related to the OER removal from his records
* the JAG's interpretation was in disagreement with the OER appeal guidance
* he was required to undergo a Selection Review Board that discounted the IG finding and he was retained on two different promotion boards
* his senior rater acknowledged the Pennsylvania Army National Guard (PAARNG) Adjutant General staff provided incorrect guidance on addressing the contested OER when it was lost and the contested OER was written as retribution
* the JAG provided an illegally-retained copy of the GOMOR to the PAARNG Adjutant General which was included in the written reason why he was not promoted until prior to his retirement

	b.  The JAG was responsible for viewing the command selection lists and assignment board.  It is impossible to say whether the illegally-retained GOMOR was ever provided or discussed when additional opportunities could have been available; however, it is very logical to assume this was the case.

	c.  The PAARNG G-1 officer management team advised him that the following must occur to affect the changes of his request:

* reinstatement in the PAARNG in a COL/O-6 billet and provision of a COL/O-6 Active Guard Reserve (AGR) controlled-grade authorization for one day or sufficient time
* a State promotion order to COL with effective date of rank of 1 July 2011
* a Federal promotion order generated by "HQ-ARNG [Headquarters, Army National Guard]" with a date of rank of 1 July 2011
* retirement the day after promotion with adjustment to his retirement date based on the amended information
* back pay coordinated through the Pennsylvania U.S. Property and Fiscal Officer and the Defense Finance and Accounting Service for active duty pay
* adjustment of retired pay through the Carlisle Barracks finance office

	d.  He desires the Board to take any appropriate actions to correct his records if the guidance he received from the PAARNG G-1 officer management team is inaccurate.

	e.  He was punished again prior to his retirement for the same issue that required OER and selective retention board (SRB) appeals.  This demonstrates a situation of multi-jeopardy with respect to his career.

3.  The applicant provides a chronology of events with 19 enclosures.



CONSIDERATION OF EVIDENCE:

1.  On 4 November 1982, the applicant enlisted in the ARNG of the United States and he was appointed as an officer in the Army of the United States on 2 June 1984.  From 4 June 1984, he served as a commissioned officer in the PAARNG, with AGR service beginning on 1 April 1997.  His career includes service as an infantry and armor officer, company and battalion command, and various unit and State-level staff positions.

2.  He was promoted as follows:

* first lieutenant effective 22 May 1987 
* captain effective 2 July 1990
* major effective 1 July 1997
* lieutenant colonel (LTC) effective 8 March 2006

3.  On 18 June 2007, he was notified of his selection for retention in the PAARNG and consideration by an SRB again in Calendar Year 2009.

4.  On 3 July 2008, the applicant received a GOMOR directed for filing in his Official Military Personnel File (OMPF) (should read Military Personnel Records Jacket (MPRJ)) for 3 years.

5.  On 23 July 2009, the Army Special Review Boards (ASRB) partially granted the applicant's request with regard to the contested OER as follows:

	a.  Removal of all:

* rater information in Part IIa (Name of Rater)
* marked ratings in Part IV (Performance Evaluation – Professionalism)
* comments and ratings in Part V (Performance and Potential Evaluation – Rater) –

* Part Va (Evaluate the Rated Officer's Performance During the Rating Period)
* Part Vb (Comment on Specific Aspects of the Performance)
* Part Vc (Comment on Potential for Promotion)

	b.  The ASRB directed placement of the comment "corrected copy" at the bottom of the contested OER.

	c.  The ASRB also determined promotion reconsideration was not warranted.

6.  On 28 October 2010, the Army Board for Correction of Military Records (ABCMR):

	a.  granted the applicant's request for:

* adjustment of his date of rank to major
* adjustment of his date of rank to LTC
* referral to a Special Selection Board (SSB) for consideration for promotion to COL

	b.  directed that if selected for promotion by the SSB and if otherwise eligible, establishing his COL promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due as a result.

7.  The U.S. Army Human Resources Command (HRC) confirmed:

* the applicant was selected for promotion to COL by an SSB on 18 March 2011
* the Secretary of the Army approved the SSB on 30 June 2011
* he received Senate confirmation on 23 September 2011

8.  On 15 March 2012, the applicant was advised of his non-selection of retention by an SRB.  He was further advised that he would be separated from the ARNG within 60 days of the PAARNG's receipt of his board results in accordance with the 2012 SRB results or the medical separation findings as applicable.  His records were flagged accordingly.

9.  The Secretary of the Army memorandum to the Deputy Chief of Staff, G-1, dated 24 October 2012, subject:  Promotion Review Board AP1207-01, Fiscal Year 2011, COL, Army Promotions List Promotion Selection Board, directed the applicant's retention.

10.  On 26 November 2012, a physical evaluation board (PEB), adjudicated as part of the Integrated Disability Evaluation System, determined that his medical condition prevented satisfactory performance of his duties in his grade and primary specialty.  The PEB recommended permanent disability retirement with a 60-percent disability rating.

11.  On 30 November 2012, the applicant concurred with the PEB findings and recommendation.  On 3 January 2013, the recommendation of the PEB was approved.
12.  The Adjutant General of Pennsylvania (TAGPA) Orders 004-017, dated 4 January 2013, amended TAGPA Orders 076-049, dated 16 March 2008, to read:

* his period of active duty as 16 June 2008 through 3 April 2013
* his placement on the Permanent Disability Retired List effective 4 April 2013 with a 60-percent disability rating

13.  Headquarters, Carlisle Barracks, Orders 008-0001, dated 8 January 2013, show the applicant was retired on 4 April 2013 due to permanent physical disability with a 60-percent disability rating.  These orders show his retired grade/date of rank as LTC/30 June 2004.

14.  PAARNG Orders 016-999, dated 16 January 2013, honorably discharged him from the ARNG, transferred him to the U.S. Army Reserve (USAR) Retired Reserve, and placed him on the Permanent Disability Retired List effective 3 April 2013 with a 60-percent disability rating.  These orders show his rank as LTC.

15.  An HRC memorandum, dated 24 January 2013, subject:  Promotion Review Board Results (PRB RP1207-01), shows his records were referred to a Department of the Army Promotion Review Board for reconsideration of his promotion status.  The Secretary of the Army decided to retain him on the promotion list.

16.  A DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 28 January 2013, shows the flag was removed from his records effective 24 October 2012.

17.  PAARNG Orders 028-1010, dated 28 January 2013, recognized him on the Honorary Retired Promotion List of the PAARNG in the rank of COL with an effective date of 5 April 2013.  He acknowledged this promotion was not his Federally-recognized grade.

18.  A TAGPA letter to the applicant, dated 13 February 2013, states he denied the applicant's request for promotion and backdated rank.  He stated his reasons for denial were based on the lack of key developmental assignments and his less than stellar record.  He also indicated he found an administrative reprimand in the applicant's file administered by his predecessor.

19.  In a self-authored memorandum for record, dated 13 February 2013, he stated he met with TAGPA to discuss the circumstances of his promotion.  He stated the original GOMOR was returned to him after 3 years.  Apparently a copy of it was in his records and he believed someone in the command, either TAGPA or another with access to the original GOMOR, retained a copy for purposes of seeking retribution for his history in the organization of reading regulations and holding people responsible to care for Soldiers, not harm them.

20.  On 19 February 2013, the PAARNG verified the applicant reviewed his "hard copy" OMPF and he did not find a copy of the adjusted State promotion order to major or the GOMOR.

21.  Headquarters, Carlisle Barracks, Orders 072-0001, dated 13 March 2013, amended Headquarters, Carlisle Barracks, Orders 008-0001, dated 8 January 2013, to show the applicant's retired grade/date of rank as COL/3 April 2013.

22.  His DD Form 214 shows he retired on 3 April 2013 due to a permanent disability (enhanced) in the rank/grade of COL/O-6.  Item 12f (Effective Date of Pay Grade) of his DD Form 214 shows the entry "2013  04  03."

23.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he honorably separated from the ARNG on 3 April 2013 and transferred to the USAR Retired Reserve.

24.  On 19 August 2013, the Department of the Army IG advised him that the issue that his 22 July 2008 GOMOR was retained past its filing date was substantiated.  He was informed that the issue was closed and no further action would be taken regarding the matter.

25.  An email provided by the applicant, dated 15 November 2013, shows he was advised by an official at the PAARNG that he was not in and never held a COL/O-6 billet.

26.  The applicant also provided:

	a.  a self-authored memorandum for record, dated 5 January 2006, which documented operation selection board changes for sergeant major selections during the period 20 December 2006 through 5 January 2007;

	b.  a memorandum of support from the PAARNG, Assistant Division Commander (Maneuver), regarding his petition in rebuttal of IG findings for his promotion review board, dated 24 April 2012;

	c.  a TAGPA Certificate of Appointment that shows he was appointed as a COL on the PAARNG Retired List effective 5 April 2013;

	d.  email from the PAARNG Officer Branch Chief explaining SSB procedures and promotion to O-6;

	e.  Department of the Army IG correspondence and email regarding a Freedom of Information Act request regarding his Report of Investigative Inquiry; and

	f.  a chronology of events affecting his career since December 2006.

27.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNG and USAR.  It states:

	a.  Officers not selected for promotion to COL will continue to be considered by subsequent selection boards until either selected or removed from the Reserve Active Status List.

	b.  An officer's promotion is automatically delayed when the officer is the recipient of a referred OER or a memorandum of reprimand (directed for filing in the OMPF) before the date he or she would otherwise have been promoted which was not considered by the board that selected him or her for promotion.

	c.  Paragraph 4-21d specifies that AGR officers selected by a mandatory board will be promoted provided they are assigned/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/attached to a higher graded position 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.

	d.  If an officer is selected by a mandatory promotion board has a maximum time-in-grade date that is before the approval date of the board, the officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended or the date of Senate confirmation (if required).

	e.  If an officer is selected by a promotion advisory board/SSB, the officer's date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered or that did consider the officer.  Therefore, the officer may have a maximum time-in-grade date that is before the approval date of the promotion advisory board/SSB that recommended the officer for promotion.

28.  Army Regulation 600-37 (Unfavorable Information), in effect at the time, provided that an administrative memorandum of reprimand could be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must have been referred to the recipient and the referral must have included and listed applicable portions of investigations, reports, or other documents that served as a basis for the reprimand.  Statements or other evidence furnished by the recipient must have been reviewed and considered before a filing determination was made.

29.  A memorandum of reprimand could be filed in a Soldier's OMPF only upon the order of a general officer-level authority and would be filed in the performance folder.  The direction for filing would be contained in an endorsement or addendum to the memorandum.  If the reprimand was to be filed in the OMPF, the recipient's submissions would be attached.  Once filed in the OMPF, the reprimand and associated documents were permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

30.  Once an official document had been properly filed in the OMPF, it was presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rested with the individual concerned to provide evidence of a clear and convincing nature that the document was untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

31.  Only memoranda of reprimand, admonition, or censure could be the subject of an appeal for transfer to the restricted folder.  Normally, such appeals would be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above documents could be appealed on the basis of proof that their intended purpose had been served and that their transfer would be in the best interest of the Army.  The burden of proof rested with the recipient to provide substantial evidence that these conditions had been met.

32.  A memorandum designated for filing in the MPRJ (local file) only could be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever was sooner.  Such memorandum would state the length of time it was to remain in the MPRJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a backdated promotion to the rank/grade of COL/O-6, back pay, and an adjustment to his retired pay was carefully considered.

2.  He was eligible for consideration for promotion to COL/O-6 on 1 July 2009; however, he was not considered for promotion until 2011.  His confirmation and the Secretary of the Army's approval did not occur until 2013 and he was no longer serving in an AGR status.

3.  Further, at the time of his selection for promotion to COL he was not assigned to an AGR COL/O-6 position.

4.  Although the Department of the Army IG substantiated that his GOMOR was erroneously maintained in his MPRJ past its filing date and he contends it was used as a basis to delay his promotion, the evidence of record shows his promotion was also delayed by TAGPA based on his lack of key developmental assignments.  Therefore, the earliest he could have been promoted would have been the day after his release from his AGR status.  There is no evidence indicating the GOMOR was ever filed in his OMPF.

5.  He was promoted to COL/O-6 effective 3 April 2013, the date he was removed from his AGR status and retired due to disability, and his DD Form 214 shows his effective date of pay grade as 3 April 2013 contrary to the provisions of Army Regulation 135-155 which state promotion will occur the day after release from AGR status.

6.  In view of the foregoing evidence, there is no basis for granting the requested relief.

7.  The GOMOR and allied documents provided by the applicant should not be filed in his OMPF with this Record of Proceedings; only the notification letter and Record of Proceedings should be filed in his OMPF.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  __X______  __X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board further directs filing only the notification letter and Record of Proceedings in the applicant's OMPF.



      ____________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)                                         AR20140013320



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ABCMR Record of Proceedings (cont)                                         AR20140013320



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