PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 November 2001
         DOCKET NUMBER: AR2001059261


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Regan K. Smith		Member
Mr. Melvin H. Meyer		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reconsideration for promotion to Colonel (COL) by the Fiscal Year 2000 (FY00) Colonel Army Competitive Category (ACC) Promotion Selection Board based on a complete and corrected Official Military Personnel File (OMPF). If granted reconsideration and selected for promotion to COL, he requests that his Date of Rank (DOR) be backdated to coincide with his year group and peers.

3. The applicant states, in effect, that a critical document, his final battalion command Officer Evaluation Report (OER), was not provided to the promotion board due to systemic error and not due to any fault on his part. The OER was an Above Center-of-Mass (ACOM) rating. The lack of this significant OER in his file to be viewed by the promotion board constituted a material error which prevented his selection for promotion to COL. He was eligible to receive a complete-the-record OER for the period ending 26 May 2000, for promotion board consideration. Since his battalion command was due to end on 20 June 2000, he and his rating chain agreed to render an annual OER for the period ending 14 June 2000 to provide to the promotion board a more complete view of his performance and promotion potential. It was felt that a 12-month OER would be stronger that an 11-month OER and that there was sufficient time to process the OER and get it to PERSCOM prior to the cut-off date of 25 July 2000 for receipt of OERs at PERSCOM for the promotion board. On 27 June 2000, the applicant moved from Fort Leonard Wood to Fort Monroe on a Permanent Change of Station. His rating officials had not completed his OER by 27 June 2000, but they informed him that it would be an ACOM report and they assured him that they would complete it in time to submit to the promotion board. He was absolutely confident that his chain of command would not fail him. He signed a blank OER form before he left Fort Leonard Wood.

4. Upon his return to Fort Monroe on 26 July 2000, from a 2-day Temporary Duty Away (TDY), he was surprised to receive his OER by Federal Express for his signature. He signed it and returned it to his rater at Fort Leonard Wood by overnight Federal Express on 26 July 2000. The senior rater, who previously had also been TDY, signed the OER on 27 July 2000. With assurance from the PERSCOM Promotion Branch to the rating officials that if the OER was at PERSCOM on Friday, 28 July 2000, it would be placed in his promotion file, the OER was sent by overnight Federal Express to PERSCOM. The overnight package arrived at DA PERSCOM on Friday, 28 July 2000, as verified through the Federal Express tracking system. The package was addressed to the proper directorate but did not have a room number. Lack of a room number caused the package to be undelivered. Federal Express could not obtain the room number until Monday, 31 July 2000. Federal Express again delivered the OER to PERSCOM on Tuesday, 1 August 2000, at 10:25 am when it was stamped received by the Evaluations Branch, but it was not placed in the applicant’s


promotion file for the promotion board that was to convene that day. It had not been sent with a letter requesting exception to place it in the applicant’s promotion file after the 25 July 2000 cut-off date and on or by the 1 August 2000 date by which they could be placed in the file with such a request. Since the rating officials had been assured that if the OER arrived on 28 July 2000, it would be placed in the file, and they had been confident that the Federal Express package would be delivered and processed on that date, no letter requesting exception was enclosed.

5. The applicant provides a letter of support from his rater, a COL brigade commander, which substantiates the foregoing information. The rater’s letter adds that he signed the OER on 18 July 2000 and sent it to the senior rater for signature. The senior rater was TDY. Later discovering this, on 25 July 2000, the rater sent the OER by overnight Federal Express to the applicant for his signature. All requests and personal efforts by the rater and senior rater, a major general commanding officer, to have the OER inserted into the applicant’s promotion board file were denied. It was the rater’s understanding then that if the report arrived at PERSCOM on 28 July 2000, it would be included in the applicant’s promotion file. He feels that the OER was in fact delivered to PERSCOM on 28 July 2000. He states that exclusion of this final battalion command OER in the applicant’s promotion file was an injustice and materially affected his consideration for promotion. He further states that the applicant deserves reconsideration for promotion to COL.

6. The applicant provides a letter of support from his senior rater, the Major General (now a Lieutenant General) Commander of the United States Army Maneuver Support Center and Fort Leonard Wood. The general confirmed the foregoing circumstances. He states that not placing the OER in the applicant’s promotion file was an error, beyond the control of the applicant, that it was an injustice to the applicant, and constitutes material error. He “fervently” requested that the applicant be reconsidered for promotion to COL.

7. The applicant’s military records show that he is an infantry Lieutenant Colonel (LTC) with a date of rank of 1 November 1995. He graduated from the United States Military Academy at West Point and was commissioned on 6 June 1979. He has had platoon, company, and battalion command. He has completed Command and General Staff College and was selected in 2001 for attendance at a senior service college. He has been awarded 4 Meritorious Service Medals,
2 Army Commendation Medals, 2 Army Achievement Medals, and 2 Army Superior Unit Awards.





8. His 8 most recent OERs and duty positions are shown below. They include
6 Center-of-Mass (COM) reports and 2 ACOM reports. The rank of the senior raters are shown as Brigadier General (BG), Major General (MG), and Lieutenant General (LTG).

941209 – 950607; Major, Mechanized Infantry Battalion Commander,
Germany; COM, BG.
950608 – 960512; LTC, Armored Brigade Operations Officer (S-3),
Bosnia-Hertzegovina; COM, BG.
960513 – 961007; LTC, Armored Brigade Operations Officer (S-3),
Bosnia-Hertzegovina; COM, BG.
961008 – 970605; LTC, Armored Brigade Executive Officer,
Bosnia-Hertzegovina; COM, BG.
(break in rating, unrated period)
971001 – 980624; LTC, Infantry Brigade (Training) Executive Officer,
         Fort Leonard Wood; COM, BG.
980625 - 990614; LTC, Infantry Battalion (Training) Commander,
         Fort Leonard Wood; COM, MG.
*990615 – 000614; LTC, Infantry Battalion (Training) Commander,
         Fort Leonard Wood; ACOM, MG.
000615 – 010525; LTC, Training and Doctrine Command Deputy Commanding
General for Initial Entry Training Executive Officer,
Fort Monroe; ACOM, LTG.

9. The asterisk (*) above marks the OER not viewed by FY00 promotion board at issue in this case. This OER, for the period ending 14 June 2000, was completed and signed by the rater on Tuesday, 18 July 2000. On or about
18 July 2000, the rater sent the OER to the senior rater for signature. The senior rater was TDY and not available to sign the report. According to PERSCOM instructions, the OER had to be received in the Evaluation Reports Branch not later than 25 July 2000. On Tuesday, 25 July 2000, the rater sent the OER by Federal Express to the applicant for his signature. The applicant signed the OER and returned it by Federal Express on Wednesday, 26 July 2000. On Thursday, 27 July 2000, the senior rater signed the OER and it was sent to PERSCOM by Federal Express. On Friday, 28 July 2000, Federal Express brought the OER to PERSCOM but did not deliver it to the Evaluation Reports Branch. On Tuesday, 1 August 2000, Federal Express delivered the OER to the Evaluation Reports Branch.

10. The FY00 Colonel Active Competitive Category (ACC) Promotion Selection Board convened on 1 August 2000. The applicant was considered for promotion in the zone but not selected. The promotion board did not see the applicant’s


ACOM battalion command OER for the period ending 14 June 2000. The applicant was again considered for promotion, above the zone, by the FY01 Colonel Active Competitive Category (ACC) Promotion Selection Board. The results of this board will not be released until January 2002.

11. On 31 January 2001, the applicant applied by letter to the PERSCOM Promotions Branch requesting a Special Selection Board (SSB) to reconsider his record, which then contained the OER in question, for promotion to COL. His request was supported by a letter from his senior rater, then and now a Lieutenant General. He stated that it was an injustice and a material error beyond the control of the applicant that his ACOM battalion command OER was not included in his promotion board file. On 27 February 2001, the Chief of the Promotions Branch denied the request by letter, finding no material error. The Chief defined a material error as being of such a nature that, in the judgement of the reviewing official, had it been corrected at the time that the individual was considered by the board that failed to recommend him for promotion, it would have resulted in a reasonable chance that the individual would have been selected for promotion.

CONCLUSIONS:

1. The FY00 Colonel Army Competitive Category (ACC) Promotion Selection Board was denied the benefit of a significant evaluation, a battalion command ACOM report, of the applicant’s duty performance and promotion potential in making its promotion selection decision. This deficit was the result of error on the part of the rating chain and not due to any fault of the applicant. The rating chain could have rendered a complete-the-record OER on 26 May 2000, according to PERSCOM instructions, and submitted it in a timely manner for inclusion in the applicant’s promotion packet. The rating chain determined to forego this timely submission and submit an OER ending 20 June 2000, just one month short of the promotion board OER submission deadline of 25 July 2000. The applicant completed his command assignment and moved to a new location and duty assignment on 27 June 2000. However, the rating chain failed to provide him with an OER prior to his departure. When the rating chain did complete the OER in mid July, they sent it to the applicant for his signature, an unnecessary delay. The Army regulation on OERs provides that if a rated officer has moved and/or is not available for signature, the term “not available for signature” may be entered in the rated officer’s signature block and the OER may be submitted to PERSCOM. The applicant did not receive the OER for signature until 26 July 2000, after the submission deadline to PERSCOM. When the rating chain received back the OER signed by the applicant, they sent it to PERSCOM with an incomplete mailing address, further causing the OER to be delayed beyond the submission deadline.

2. The applicant’s promotion opportunity was unfairly and unjustly jeopardized by the rating chain’s late submission of his OER. Considering the applicant’s otherwise excellent record, a recent battalion command ACOM OER given by a MG could have had a significant impact on the promotion selection decision. It would, therefore, be in the best interest of justice and fairness that the applicant’s file be reconsidered by a SSB for promotion selection under the FY00 Colonel Active Competitive Category (ACC) Promotion Selection Board criteria, including the applicant’s OER ending on 14 June 2000 in his promotion board file. If selected for promotion by this SSB under this criteria, his date of rank for COL should be consistent with others selected by that same promotion board.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected as an exception to policy, for the individual concerned, by reconsidering him for promotion selection under the FY00 Colonel Army Competitive Category (ACC) Promotion Selection Board criteria, including his OER ending on 14 June 2000 in his promotion board file. If selected for promotion under this criteria, his date of rank for COL should be consistent with others selected by that same promotion board.

BOARD VOTE:

__jp____ __rs___ __mm____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Jennifer L. Prater___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001059261
SUFFIX
RECON
DATE BOARDED	20011120
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131 - Promotion
2.
3.
4.
5.
6.