IN THE CASE OF: BOARD DATE: 12 August 2010 DOCKET NUMBER: AR20090021673 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 that his records be corrected to show he was selected for promotion to captain by the Fiscal Year 2008 (FY08) captain promotion board. 2. The applicant states he met the required time in service, performance, and academic requirements for selection for promotion to captain by the FY08 captain promotion board. 3. The applicant provides excerpts from his military records which include officer evaluation reports (OER's) for the period 1 February 2006 to 13 October 2008. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 1 May 2003. 2. He was promoted to first lieutenant on 30 April 2005. 3. The applicant was given a relief-for-cause OER for the period covering 1 January 2006 to 31 January 2006. The applicant's rater evaluated his potential for promotion as "Unsatisfactory Performance, Do Not Promote" and his senior rater evaluated his potential for promotion as "Do Not Promote." This was considered an adverse OER and was referred to the applicant for acknowledgement and comment. 4. The applicant was flagged (suspension of favorable personnel action) on 21 November 2009. The reason for the flag is not contained in the applicant's records. 5. On 23 June 2010 orders were published showing the applicant was promoted to captain effective 26 May 2010. 6. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states at: a. table 2-1, the maximum time in grade (TIG) for promotion to captain is 5 years; b. paragraph 2-10, the first consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements in table 2-1 or table 2-3, as appropriate; and c. paragraph 3-19, promotion reconsideration may be given when one or more evaluation report which should have been seen by the board was missing from the record. However, promotion reconsideration is not provided when an administrative error was immaterial or when the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the record or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and providing any relevant documentation that he or she had. 7. In the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis, MO. The advisory official stated that while the applicant was educationally qualified for promotion when he was considered by the FY08 captain selection board that convened on 6 November 2007, that board did not have the applicant's OER for the period ending 5 October 2007 which is considered a material error and could be the basis for promotion reconsideration. However, the applicant did not view his board consideration file prior to the convening date, which reflects a lack of due diligence. In addition, favorable consideration by a special selection board is questionable in view of the applicant's referred relief-for-cause/do-not-promote referred OER. 8. The advisory official continues that the applicant was also not selected by the FY09 captain selection board which convened on 4 November 2008. This promotion board did not have the applicant's OER for the period ending 13 October 2008. However, the applicant had viewed and certified that his board file was complete on 11 October 2008. The advisory official adds that, in view of the applicant's relief-for-cause/do-not-promote referred OER, he may not be selected by a special selection board. 9. The advisory official continues that while the applicant was selected for promotion by the FY10 captain selection board, that promotion is on hold because the applicant is currently flagged. 10. The applicant was provided a copy of the advisory opinion and was given the opportunity to provide additional comments or documents. He did not respond. DISCUSSION AND CONCLUSIONS: 1. While the applicant's promotion file for both the FY08 and FY09 promotion boards was missing an OER, the applicant has not explained why he did not provide the promotion boards with the two missing documents. For the FY09 board, he even certified his promotion file as being complete. As such, the applicant did not exercise reasonable diligence in discovering and correcting the omission in the record by notifying the Office of Promotions of the error and providing the missing OER's. 2. In addition, the likelihood of the applicant being selected for promotion so soon after a relief-for-cause/do-not-promote referred OER (which, although the applicant provided a number of OER's to the ABCMR, was not provided by the applicant) is considered nonexistent. Therefore, the missing OER's are considered immaterial. 3. The applicant was selected for promotion with an effective date that was 26 days past his 5-year maximum TIG. It is presumed that is the date he met all of the qualifications for promotion to captain and he would have been promoted on that date if he had not been flagged. 4. 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) AR20090021673 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090021673 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1