How an Unfounded Investigation Can Affect Your Promotion
When facing a misconduct investigation, the focus is understandably upon trying to disprove the alleged misconduct. While that concern is your primary goal, you also need to be aware that even if you are successful in disproving the alleged misconduct, this issue may come up again when you are selected for promotion.
Under a new Army directive, all officer and warrant officer ranks from colonel and below must have their records screened for adverse and reportable information. The post-board screening will involve a review of records from the Army Criminal Investigation Command, the Army Inspector General, and the restricted portion of your Army Military Human Resource Record.
Due to the scope of the post-board review, the number of Soldiers receiving notification of their potential removal from a promotion list has risen dramatically. In fact, our office has already handled eight promotion review board rebuttals in the first two months of 2018. The primary reason many Soldiers are being pulled into a promotion review board appears to be an adverse probable cause determination.
Probable Cause Determination
Unfortunately, when you have an allegation of misconduct against you, it is almost a foregone conclusion that some judge advocate will determine that there is probable cause to believe the allegation against you is true. This judge advocate’s determination is called a probable cause opine. The opine is not reaching a determination that you are guilty of anything, but just that there is enough evidence to suggest that there is a “fair probability” that the allegation is true. The fair probability standard is a very low bar, and almost always met. The post-board screening seems to key in on probable cause determinations in CID and IG investigations. As a result, even if you have avoided a GOMOR or other UCMJ action, a probable cause opine will likely come back to haunt you in the post-board screening.
The emotional toll of being notified of potential removal from a promotion list is difficult for any Soldier, especially for those being recommended to first lieutenant or chief warrant officer two. For these Soldiers, if they are removed from the promotion list, they will have 180 days to separate from the Army. For those being promoted to higher ranks, it is still difficult to stay positive once you start to see members of your peer group being promoted. Unfortunately, the promotion review board process does not happen quickly. You will typically need to wait at least six to eight months after your rebuttal submission before hearing anything.
We understand how hard it can be to deal with a promotion review board notification, which is why we want to help. Our office is experienced in drafting strong rebuttals for Soldiers facing a promotion review board. We will work hard to ensure that you are given the best chance at obtaining a positive result. Contact us today to start the rebuttal process.