The Truth About Promotional Review Boards
Congratulations, you were selected for promotion! Unfortunately, Army Human Resources Command notified you that your name is being removed from the promotion scroll and your file will go before a Promotion Review Board (PRB). Here’s the real truth about the process and what you can do to defend your name and increase your odds to get promoted.
Bottom line up front: Sending a letter to the PRB explaining how you’re sorry and explaining you love the Army – isn’t going to cut it.
Federal law mandates that military officers maintain “exemplary conduct.” Army officers have always been subject to review after a selection board, however historically, this action was limited to officers selected for command or nominative assignments. Army Secretary Eric Fanning exponentially expanded the use of PRBs in August of 2016. It’s widely thought that the expansion of post board screening and PRBs was part of the Army’s attempt to appease Congress in the wake of military sexual assault scandals.
All Officers selected for promotion by a DA Board are screened for derogatory information (DEROG), as part of the post-board procedures. Three primary data bases are searched for derogatory information: Army CID’s database known as the Army Law Enforcement Report Tracking System (ALERTS), the Inspector General data base and the restricted portion of your OPMF. Army CID investigations, substantiated IG complaints, UCMJ actions, Article 15s, and letters of reprimands can all trigger PRB actions.
If you were “titled” as part of a CID investigation, or CID obtained a report from a civilian law enforcement agency, you will be flagged and removed from the promotion list. HRC will normally send you copy of the derogatory information, but in cases involving Army CID, the DEROG is often just a short conclusory summary of their investigation. In other words, CID doesn’t send the board their Agent’s report of investigation and evidence. The PRB process assumes the allegations are true and that the Agent’s conclusions are sound.
The PRB is a “paper board.” You can’t appear in person to argue you case to the board and you can’t appear telephonically. The board reviews the DEROG and your rebuttal and then sends a recommendation to the Secretary of the Army for a final decision.
The Clock is Ticking. Once you receive PRB notice, you have a very limited time to fight back. Active duty officers have 14 days to submit a rebuttal and Reserve Component Officers have 45 days. The time calculation for submitting a rebuttal starts the day you receive notice from HRC.
Step 1 – Gather Intel & Understand the Allegations Against You.
It’s critical to gather copies of any investigator reports, law enforcement documents and any other documents related to you case. You can obtain CID documents and reports under the Freedom of Information Act (FOIA) and the Privacy Act (PA).
If you were investigated by a civilian law enforcement agency, you’ll want to serve FOIA and PA or the state law equivalent demands on each agency involved. If CID titled you based on a civilian law enforcement investigation, you should serve open records request on both agencies. Don’t assume you’ll get everything you’re legally entitled to from any agency. An Attorney can help you fashion a request that’s broad enough to encompass all possible documents and discuss the various exceptions to the law which may apply to your case. Remember, that the CID report sent to the board is a short, conclusory document, based on either their own investigation or another law enforcement agency’s report. You’ll need all of these documents to mount an effective defense.
Step 2 – Develop a Strategy.
Since the board begins by assuming the adverse information against you is true, your only viable course of action is to successfully rebut the allegations. Keep in mind, “minor” offenses or transgressions are weeded out prior to the PRB. So, if the allegation against you is serious enough to be referred to a PRB, then it stands to reason that your rebuttal needs to be far more than a letter of contrition.
In order to successfully rebut allegations of misconduct, your submission must: 1) demonstrate you meet the standard of exemplary conduct, 2) prove the underlying allegation is untrue (or raise serious doubt) or that the investigator’s conclusions were flawed, and 3) validate the promotion board’s determination that you are “best qualified” for promotion.
Your service record, evaluations and the investigation documents can be analyzed to develop a strategy to build a compelling rebuttal package.
Depending on the facts of your case, it may be advisable to engage a private investigator to conduct an independent investigation and gather exculpatory and or mitigating evidence.
Step 3 – Launch a Counter-Attack
Letters of Endorsement from senior officers attesting to your integrity, character and superior performance can help your case. Here again, an Attorney familiar with Army standards can help with critical language that will make the endorsement letters compelling to the PRB.
You’re guilty until proven innocent. It’s critically important to understand the PRB starts by presuming the DEROG is true and correct. The investigator’s conclusions are received as true, regardless of any extenuating circumstances or flawed conclusions. Remember, the PRB is only provided CID’s summary report. In most cases, this report is void of any discussion of evidence collected or any meaningful analysis of the facts of the case. It also doesn’t contain any statement made to law enforcement disputing the facts or “proving your innocence.”
In other words, it’s simply a conclusory statement often made by a singular CID agent. If this seems wildly unfair and a violation of Due Process rights, you’re correct. It also means a letter of contrition detailing your regret and love for the Army will validate CID’s conclusion and make the board’s decision easy. The more senior you are, or the more serious the allegation, the more likely it is that the board will decline to recommend you be promoted.
If your Army career matters to you or you value your reputation, your only option is to fight back. Your rebuttal must challenge the allegations and the conclusions of the investigator. Ideally, you’ll be able to demonstrate flaws in the investigation, provide evidence casting doubt on the DEROG, and convince the board of your innocence.
The Waiting Game.
Despite the strict deadlines imposed by HRC, there does not appear to be any correlation to when a specific board convenes, and HRC takes significant efforts to keep the process details murky. Sequencing suggests that PRBs are considered special boards that are simply added on the work load for HRC boards convened for other purposes. In many cases, this likely adds to the time required to obtain results. Once the PRB adjourns, their recommendations are forwarded through layers of bureaucracy, ultimately to the Secretary of the Army for action. The Secretary can accept or reject the PRBs conclusion. The total length of time required for the entire PRB process can range from 10 months to 18 months or more.