| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. John N. Slone | Chairperson | |
| Mr. Thomas B. Redfern, III | Member | |
| Mr. Lester Echols | Member |
APPLICANT REQUESTS: In effect, reconsideration of his request for promotion to colonel (COL) (direct promotion to COL by special appointment of the Secretary of the Army.)
APPLICANT STATES: There is no way to compete for COL due to no fault of his own. The Board’s 5 June 2001 Memorandum of Consideration was neither precise nor totally accurate. The Board (in docket number AC94-060510) did not promote him to major (MAJ) but rather reinstated him to his original position on the 1986 promotion list. His delayed promotion to lieutenant colonel (LTC) was not of his making but was the result of the years it took for the Army to correct his file by implementing his U. S. Federal Court of Claims decision and the Board’s directives. The Board misstated the date of his relief from active duty. He was relieved from active duty in 1990, not 1991. This inaccuracy began a trend of drawing iniquitous conclusions from inaccurate or incomplete information. The Board correctly counted his officer efficiency reports (OERs) and academic efficiency reports (AERs) from 1980 to 1991; however, its summary of his performance was grossly in error. He received one AER wherein he was rated as exceeding the standard. He received four OERs wherein he was rated as above center of mass (COM) (not COM as the Board stated). He received two OERs wherein he received a top block, COM rating. He received four OERs wherein he was rated COM but no one was rated higher. He received one COM OER and one below COM OER.
The Board’s summary of his OERs since his reinstatement was misleading. His OERs under the old system were categorized as simply “center of mass.” They are all top block reports. The verbiage, however, is objective, specifically ranking him in the top 1 to 10 percent of all officers rated. Further, in the Board’s summary it stated that he was granted resident credit for Command and General Staff College (CGSC) but failed to state or quote from the 23 April 1998 source document, that he also completed CGSC by correspondence and exceeded academic standards by graduating on the Commandant’s list. This is important because it shows the Board’s research was incomplete. The Board copiously listed his performance rating in all of his other reports but conspicuously failed to list this rating. The Board stated that he cited one example where an individual was promoted by recommendation of the Secretary of the Army. That was not accurate. He gave two examples and he has since discovered a third example (Eugene P. S___, 1973; MAJ P___, 1995-1996; and Greg W___, 1986).
The Board justified his non-selection due to the vast majority of his OERs being COM. This was not a precise rendering of his file and reflects a specific misunderstanding of the OER system that would have been used to determine his status for competitive positions. The old OER system was highly inflated. It was not unusual for everyone to be rated in the top block and for this reason objective wording was used in the narrative section to delineate status. It was not just “speculation” on his part to conclude that successfully commanding a battalion would cause him to be promoted. Factual information from past promotion boards’ statistical information bears him out. From this, a very logical conclusion is ascertained. Top block OERs that are also COM are evaluated and ranked by the objective comments in those reports. In his top-block OERs, the verbiage clearly stated that he should be promoted and command a battalion. Specifically the last three OERs rated him in objective terms that clearly identify him as in the top 1 to 10 percent of all officers rated.
The Board agreed that he was behind his contemporaries but concluded that he had been given all due consideration. The Board defended this premise by simply stating that a promotion board considered him and he was not selected because he was not competitive. This is precisely his point. He has not been given the opportunity to compete in a traditional or any other type manner.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 5 June 2001 (docket number AR2000045903).
The applicant’s senior rater OER history is as follows:
OER Ending Period
Senior Rater Block Rating (* indicates his rating)
20 August 1980
0/*6/0/0/0/0/0/0/0
17 April 1981
18/*14/3/0/0/0/0/0/0
26 August 1981
*25/15/4/0/0/0/0/0/0
26 August 1982
0/*1/0/0/0/0/0/0/0
31 December 1982
*3/4/4/1/1/0/0/0/0
AER Advanced Course, exceeded course standards
28 July 1984
1/*13/4/7/0/0/0/0/0
16 February 1985
*5/22/4/1/0/0/0/0/0
27 May 1985
*42/22/11/4/1/0/0/0/0
27 February 1986
0/*1/1/0/0/0/0/0/0
Next OERs classified or deleted
16 May 1989
11/*47/12/2/0/1/0/0/0
2 February 1990
0/0/*3/1/0/0/0/0/0
3 May 1990
0/*7/3/1/0/0/0/0/0
The applicant was released from active duty on 10 September 1990 and reinstated in 1994.
AER language course achieved course standards
3 August 1995
*17/4/0/0/0/0/0/0/0
AER resident CGSC achieved course standards, exceeded not used by school, credit granted through Secretary of the Army directive
6 June 1996
*29/1/0/0/0/0/0/0/0
6 June 1997
*49/1/0/0/0/0/0/0/0 (same senior rater as previous)
8 August 1997
*67/1/0/0/0/0/0/0/0 (same senior rater as previous)
20 May 1998
center of mass
1 October 1999
center of mass
1 October 2000
center of mass
The AER for the non-resident CGSC mentioned by the applicant is not available.
The senior rater’s comments on the applicant’s OERs for the periods ending 6 June 1996, 6 June 1997, and 8 August 1997 contain a total of three sentences on each OER. While the verbiage includes the phrases “among the top 1 percent of the company commanders,” “among the top 10% of the majors,” “one of the top 4 majors,” “promote now,” and “will be a great battalion commander,” the senior rater does not elaborate on these comments.
Around January 1999, a special selection board (SSB) had recommended the applicant’s promotion to LTC with a date of rank of 29 September 1993. That date of rank made him eligible for promotion consideration to COL under the fiscal year (FY) 1998 criteria. He was considered for promotion to COL under the FY 1998, 1999, and 2000 criteria. His first OER as an LTC was ending period 20 May 1999.
Due to the limited information provided on the three examples given where an individual was promoted by recommendation of the Secretary of the Army the Board was not able to identify them or obtain any information on the two earlier examples. The 1996 Board case, P___, was located. P___ had been released from active duty in 1988 for failure to be selected for promotion to captain. She subsequently successfully appealed two OERs and the Board reinstated her on active duty and directed she be promoted to captain with a date of rank of 1 February 1989. When she was reinstated in 1994, she immediately became eligible for consideration for promotion to MAJ. She was nonselected, presumably because she had no OERs as a captain. She was nonselected by two subsequent promotion boards, again, presumably because her record was deficient of OERs and she again faced separation due to failure to be selected for promotion to MAJ. The Board concluded that it would be unjust to involuntarily separate her again and voided her previous nonselections to MAJ and showed that she was selected for promotion to major by the SSB which considered her for promotion to MAJ under the first year of her eligibility.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. Each case is considered on its own merits without regard to previous Board actions. Saying this, the Board has compared the applicant’s case with the one available example he cited. In that case the individual had been separated as a first lieutenant and, after a 6-year break in service, was reinstated on active duty as a captain. She was immediately eligible for consideration to promotion to MAJ, a field grade rank, at a time when the only OERs available were from her time as a junior company grade officer. At the time of the Board’s directive promoting her to MAJ, she had only a few company grade OERs in her file.
2. In the applicant’s case, he had been separated as a captain, went into the U. S. Army Reserve where he was promoted to MAJ and received OERs as a MAJ, and, after a 4-year break in service, was reinstated on active duty as a MAJ. He was selected for promotion to LTC around January 1999 by an SSB with a date of rank of 29 September 1993. He was considered for promotion to COL by an SSB under the FY 1998 criteria. Although he did not have an OER as an LTC until 20 May 1999, he had numerous OERs as a field grade officer on file.
3. The Board finds that there is a notable difference between the two cases. P___ had little job performance history, in the way of OERs, on file when the SSBs considered her for promotion to MAJ. At first, that history consisted entirely of OERs received as a junior company grade officer with only a few OERs as a captain being added as time went by. She was being considered for a field grade officer promotion. The applicant already had an abundance of OERs received as a field grade officer in his files when he was considered for promotion to COL, another field grade rank. The Board acknowledges he did not receive his first OER rated as an LTC until 20 May 1999; however, the SSBs still had a fairly complete picture of his job performance as a field grade officer.
2. It appears the 5 June 2001 Board’s reference to his “1991” separation was nothing more than a typographical error as on page 5 the Board properly referenced his “10 September 1990 DD Form 214.”
3. The Board is not an investigative agency and must rely for the most part on an applicant submitting all pertinent evidence. The applicant contends the 5 June 2001 Board did not reference his non-resident CGSC AER and cites a 23 April 1998 source document. This document is not on his official military personnel file and presumably was not at the time the 5 June 2001 Board considered his case. The Board cannot reference information it does not have.
4. The Board is fully aware of the previous OER system’s inflation problem as presumably were all the members who sat on the applicant’s SSBs. The Board agrees that top block OERs that are also COM can only be properly evaluated and ranked by the objective comments in those reports. The Board concludes that, despite the verbiage in the applicant’s last three OERs rating him in terms that identified him as in the top 1 to 10 percent of all officers rated, the verbiage was so scanty as to present an ambiguous message to any promotion board member reading it. The applicant should be aware that most senior raters fill up that section of the OER with comments attesting to why the officer is so superior to all other officers. Because there was no elaboration, it appears reasonable to presume that a promotion board member reading those OERs would wonder if the senior rater wrote those three short comments only to justify his top-blocking the applicant. The Board also must read ambiguity into those comments and therefore concludes that those ratings and comments do not justify granting the relief requested.
5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
6. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__jns___ __tbr___ __le____ DENY APPLICATION
| CASE ID | AR2001064935 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011220 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 131.10 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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