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Demystifying the Promotion Review Board

 

 

 
 
   
   
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The Promotion Review Board Mystery

Promotion Review Boards (PRBs) are not widely understood throughout the Army. Unlike other Army actions, for which an officer can reach out to peers and mentors for guidance, most people who have gone through a PRB do not publicize their knowledge of the system. Why? Because it would require them to openly discuss derogatory information in their file. With so few people familiar with the process, officers rely on attorneys to understand the process and develop successful strategies for responding to the board. Legal assistance and Trial Defense Service (TDS) attorneys should ensure they are prepared to answer questions about the process, other effects of the PRB, and how final disposition will impact the officer in the future.

What Is the PRB?

During the officer promotion process, Human Resources Command (HRC) is responsible for conducting post-board screenings for derogatory information.1 This screening ensures all officers selected for promotion meet the standard of exemplary conduct required of them.2 Derogatory information in an officer’s post-board screening triggers a PRB.3 The PRB assesses the derogatory information, the officer’s complete promotion file, and any rebuttal matters submitted by the officer for consideration.4 The PRB’s role is to determine whether the officer should be retained on the promotion list and attain the rank for which they were selected or be removed from the promotion list.5 The PRB process is lengthy and complex, but begins with a basic background check of all personnel selected for promotion.

Where Does the Post-Board Screening Find Derogatory Information?

The post-board screening pulls records from Criminal Investigation Command (CID), Military Police, Department of the Army Inspector General, the officer’s restricted file, previous court-martial convictions, Army Military Human Resources Record (AMHRR) documents that entered the file after the board, and misconduct which occurred or was discovered post-board.6 The post-board screening also pulls records related to special interest situations, like incidents involving media scrutiny.7 A referred officer evaluation report can also trigger the PRB.8 While the basic triggers for a PRB remain the same, it is important to note that some of the effect of screenings changed with the Fiscal Year 2020 National Defense Authorization Act (FY20 NDAA).9

Effect of the FY20 NDAA on the PRB

Section 502 of the FY20 NDAA directs that all derogatory information be provided directly to the promotion selection board. This is a departure from the previous rule, which permitted inclusion of only permanently-filed, non-restricted documents to selection boards. Once the FY20 NDAA selection board process takes effect, HRC will still be responsible for post-board screenings; however, it will also conduct pre-board screenings to identify and provide all derogatory information to the selection board. The effect of this change in policy is that promotion boards will consider derogatory information in the initial determination of whether selection for promotion is warranted. Because boards will be able to consider this information when making the selections, this same information does not need to be considered post-selection. Thus, the majority of derogatory information that must be considered post-board would be misconduct occurring or discovered after the selection board or derogatory information that becomes available after the board. While this has the effect of reducing the number of officers subject to a PRB, the PRB process will still exist and should be understood by the attorneys who will represent officers undergoing the process.

Promotion Review Board Process

Screening Board

The process for the PRB begins with the office of the Army’s Deputy Chief of Staff for Personnel—the Army G-1—requesting a post-board derogatory record screening from CID, the Department of the Army Inspector General, and HRC.10 If these screening agencies discover derogatory information, HRC flags the officer and initiates the PRB process.11

Non-Transferable Flag

The officer will be flagged for “HQDA delay or removal from promotion list.”12 While this is not a flag for adverse action, it does have the similar effect of preventing favorable administrative actions.13 This flag prevents the officer from receiving awards, being considered by another board if it occurs during the PRB process, attending schools without an exception to policy, and requesting retirement or resignation until the PRB is resolved.14

Because the promotion hold is a non-transferrable flag, the officer is also prohibited from making a permanent change of station (PCS) move without an exception to policy. The HRC Commander is the approval authority and will deny the request if the officer has not submitted response matters prior to the expected PCS date.15

Notice

Officers typically receive informal notification of the impending PRB through their chain of command. Although this informal communication may be an oral notification stating only that the PRB will occur, without any details about the issue giving rise to the PRB, most officers will know what incident triggered the PRB. Whether or not the officer received an informal notice, a formal notification will arrive. Formal notice includes written notice, a copy of the officer’s flag, a copy of the derogatory information generating the PRB, and an election of rights document.16 Usually the officer has fourteen calendar days to make an election of rights and submit matters, but they may request an extension.17

Election of Rights

The officer has three choices: they may avoid the PRB by declining the promotion, submit matters for consideration by the PRB, or request their file be considered by the board without submitting additional matters.18 If the officer declines promotion, HRC will remove them from the promotion list, and the officer will be categorized as a non-select.19 Officers unfamiliar with the PRB may find it confusing initially, but the process is relatively direct once they understand the concept and the basic steps from agencies’ screening to final action.

The Board

In either case where the officer chooses consideration by the board, the PRB process takes eight to twelve months for final disposition.20 If officers have later promotion dates, the PRB may be complete prior to their original promotion date; but, for officers earlier on the promotion list, the process will likely continue well after the anticipated promotion date.

Once the officer submits rebuttal matters, they are considered in the next regularly scheduled board that is eligible to promote the officer.21 This board must have the same composition as the selection board for that rank.22 The PRB reviews the promotion board file, derogatory information, and all matters submitted by the officer.23

Approval Authority and Resolution

Once the PRB is complete, recommendations route through Army G-1 to the Secretary of the Army for final decision and disposition. If the Secretary of the Army finds the officer should be retained on the promotion list, the name is forwarded for Senate approval. If the Secretary of the Army determines the officer should be removed from the promotion list, the officer is treated as a one-time non-select and is eligible to compete for promotion in the next board.24 Regardless of the decision, the officer will be notified in writing of the outcome. If the officer prevails in the PRB process and is approved for retention on the promotion list by the Secretary of Army, the officer’s flag is removed; however, they may not wear rank reflecting the promotion until HRC provides promotion orders.25 For field grade officers, all promotions require confirmation from the Senate.26 This may take weeks or even months to occur; but, upon Senate approval, the officer will receive back-pay to their original date of rank and an adjusted date of rank if the PRB surpassed the officer’s promotion date.27

Practice Notes

While the PRB is a mysterious process, attorneys may find that the same strategies and techniques used for responding to a memorandum of reprimand, Grade Determination Review Board, or other adverse action closely mirror the approach for responding to the PRB. Being deliberate about compiling a response packet and setting the right tone will improve an officer’s chance of success at a PRB.

What Should the Officer Include?

The officer will not be afforded the opportunity to appear at the PRB. Anything they want to convey must be provided in a documentary submission. Officers should include anything that either provides context to the misconduct or shows the officer’s overall good conduct. The officer’s packet should include a memorandum from the officer requesting to be retained on the promotion list, letters and memoranda from people who can provide support of the officer’s good character, and other documents that are relevant to the case. As HRC furnishes the PRB with a complete copy of the adverse information and the full promotion board file, the packet from the officer should not include documents already in the board file.28

Response Packet Best Practices

The officer should reach out to those who may be willing to write letters of support as soon as they receive informal notice of the PRB. Giving people as much notice as possible ensures they have time to write and perfect their memorandum or letter. When requesting a letter of support, the officer should be prepared to tell the person writing the letter of support the underlying circumstances leading to the board and what facts or traits they would like the writer to concentrate on. As with other types of responses, officers submitting matters for the PRB should carefully select people to write the letters of support. The letters of support should illustrate the officer’s character from different perspectives. Perspectives of peers, immediate supervisors, and more senior leaders demonstrate to the board that the officer is well-rounded and adds value to the organization. Letters of support should be clear, well-written, and express a message that is in keeping with the officer’s strategy for responding to the PRB. Human Resources Command will not accept letters of support sent directly to them from the person writing the letter, so the officer will have an opportunity to read the letter before sending it to the PRB.29

In most cases, the officer knows they committed the misconduct and acknowledges its wrongfulness. In such cases, rather than quibbling about whether the conduct was really a violation of a rule or regulation, the officer should be ready to submit a packet asking for mercy. The response memorandum should demonstrate the officer taking responsibility, showing humility, and exhibiting self-reflection. In cases where the officer did not commit the misconduct, the officer must provide evidence to that effect. A memorandum simply denying the facts behind the derogatory information may reflect negatively on the officer and will convey a message that the officer refuses to accept responsibility.

Creating the most effective packet possible requires deliberate selection of documents of support, humility in responding to the derogatory information, and an understanding of both the process and the purpose of the PRB.

Conclusion

The PRB is a lengthy and difficult process for officers subject to it. Because of the small population of people directly impacted by the PRB, these officers often only have their attorney to support them through the process. Attorneys in legal assistance and TDS should be aware of the process and tactics for overcoming the PRB so that they are ready to be of service to this population of clients. TAL

 


MAJ Strickland is an administrative law attorney for V Corps at Fort Knox, Kentucky.



Notes

1. U.S. Dep’t of Army, Reg. 600-8-29, Officer Promotions para. 2-12 (9 Sept. 2020) [hereinafter AR 600-8-29].

2. Requirement of Exemplary Conduct, 10 U.S.C. § 7233 (2018).

3. Officer Promotions: Frequently Asked Questions for Promotion and Command Review Boards (15 Nov. 2016) (on file with Human Resources Command) [hereinafter Officer Promotions].

4. Id.

5. Id.

6. Id.

7. Id.

8. AR 600-8-29, supra note 1, para. 7-2. See also U.S. Dep’t of Army, Reg. 623-3, Evaluation Reporting System para. 3-27 (14 June 2019), explaining that “referred reports” are adverse evaluation reports issued to rated Soldiers under various circumstances including failure to meet Army standards, derogatory information during a rated period, relief for cause, or other negative performance indicators.

9. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1790, 133 Stat. 1198 (2019). See also 10 U.S.C. § 615 (2019).

10. Officer Promotions, supra note 3, para. 3-19.

11. Id.

12. Id.

13. U.S. Dep’t of Army, Reg. 600-8-2, Suspension of Favorable Actions para. 3-1 (11 May 2016).

14. Id. para. 2-8.

15. Id.

16. Officer Promotions, supra note 3, para. 2-2.

17. Id. para. 3-7.

18. Id. para. 3-4.

19. Id.

20. Id. para. 3-12.

21. Id. para. 3-18.

22. AR 600-8-29, supra note 1, para. 2-4.

23. Officer Promotions, supra note 3, para. 3-13.

24. Id. para. 3-18.

25. AR 600-8-29, supra note 1, para. 3-2.

26. Id. para. 2-10.

27. Officer Promotions, supra note 3, para. 3-16.

28. Id.

29. Id. para. 3-9.