RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070008239 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests "Promotion to LTC (passover) and reinstatement to the Retired Reserve."

2.  In an undated, self-authored letter, the applicant expands on his request by asking for promotion board, promotion to LTC (Lieutenant Colonel), and reinstatement [sic] to the Retired Reserve.

3.  The applicant states, in effect, that, in April 1995, he was reassigned from the 428th Civil Affairs (CA) Battalion, Perrine, FL to the 361st Civil Affairs Brigade, Pensacola, FL.  He states the Commanding General directed him to conduct physical security inspections and staff assistance visits to all subordinate units in lieu of attending regularly scheduled unit drills.  The fact that he did not attend drills made his rater and senior rater unhappy, even though both knew the Commanding General had directed it.  He states he was treated poorly and denied requested training.  When the Commanding General retired, his rater told him that he was being removed from the unit.  Not wanting to be accused of disobedience, the applicant submitted, on 30 June 1996, a transfer request to the Individual Ready Reserve (IRR), per his rater's request.  However, the applicant informed his rater that he was going to file a complaint with the Fort Bragg (NC) Inspector General's (IG) Office.

4.  The applicant states he submitted a promotion packet to the US Army Reserve Personnel Command (ARPERSCOM), St. Louis, MO on 15 August 1996.  During this period, his rater completed a DA Form 67-8 (Officer Evaluation Report (OER)) for the period 1995/09/15 through 1996/09/14.  The subject OER was extremely adverse and the applicant contacted the senior rater, the Fort Bragg IG, and his Representative in Congress.  He asked for a Commander's Inquiry from the incoming Commander, 361st CA Brigade.  The Commander's Inquiry found merit in the applicant's complaint about the subject OER and the rater and senior rater were directed to withdraw the OER from ARPERSCOM, correct it, and resubmit it.  The applicant was told he could not be forced to transfer to the IRR and was invited to re-join the 361st CA Brigade.  He chose not to because his rater and senior rater were still there.

5.  The applicant states that, during the time frame of his fight against the subject OER, he was informed that he "had been selected [for promotion] but not promoted" because his promotion packet was "missing OER(s)" and "an OER from [rater] had been sent back . . . because it was so bad and full of errors it could not be accepted."  When ARPERSCOM called the 361st CA Brigade 

requesting a corrected OER be provided, the request was ignored.  Meanwhile, the applicant was considered for promotion to LTC by the 1996, 1997, and 1998 Reserve Component Selection Board (RCSB), but was not selected.

6.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Form 2-1 (Personnel Qualification Record).

	b.  DA Forms 67-8 (Officer Evaluation Report) for the periods 1991/05/29 through 1991/06/14; 1991/06/17 through 1991/06/28; 1992/04/20 through 1993/04/19; 1993/04/20 through 1994/04/19; 1994/04/20 through 1995/04/19; and the subject OER for the period 1995/09/15 through 1996/09/14.

	c.  DA Form 67-9 (Officer Evaluation Report) for the period 1998/08/24 through 1999/02/21.  

	d.  Undated, detailed, self-authored statement, describing the events that led to the OER on question.

	e.  Memorandum, dated 14 October 1996, from the applicant to the 361st Civil Affairs Brigade, requesting correction to the OER rendered during the period 1995/09/15 - 1996/09/14. 

f.  Memorandum, dated 16 October 1996, from the applicant to the Commander, 361st Civil Affairs Brigade, requesting a Commander’s Inquiry.

g.  Memorandum, dated 18 March 1997, Findings of Commander’s Inquiry, regarding the applicant’s OER rendered during the period 1995/09/15 - 1996/09/14.

h.  Memorandum, dated 14 April 1998, from the applicant to the Commander, U.S. Total Army Personnel Command (now known as HRC – US Army Human Resources Command), St. Louis, Missouri, requesting a Special Selection Board.

	i.  Memorandum, dated 17 May 1999, from the U.S. Total Army Personnel Command (now known as HRC), St. Louis, Missouri, responding to the applicant’s request for a Special Selection Board.

	j.  Resume.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he served as an enlisted Soldier in the Regular Army for a period of 4 years from 26 July 1966 to 29 June 1970.  During that time, he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  Upon his release from active duty, he was transferred to the USAR.

3.  On 18 August 1978, the applicant applied for appointment as a commissioned officer in the USAR and, on 1 March 1979, he was appointed as an Infantry Reserve commissioned officer of the Army in the grade of 1st Lieutenant.   He was re-branched under the Military Police (MP) Branch on 1 June 1982 and was subsequently promoted to captain (CPT)/O-3 on 28 February 1983 and to MAJ/O-4 on 28 February 1990. 

4.  On 1 July 1996, the US Army Reserve Personnel Center, St. Louis, Missouri, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  On 16 September 1996, while a member of the 361st Civil Affairs Brigade, Pensacola, Florida, the applicant’s chain of command submitted an annual OER for the period 15 September 1995 through 14 September 1996.  This OER contained the following entries:

	a.  Part IV (Performance Evaluation-Professionalism) contained the entries “virtually abandoned his subordinates” and “did not follow advice of his superiors.” 

	b.  Part V(b) (Performance During this Rating Period) was marked as "Often Failed Requirements."

	c.  Part V(c) (Comments on Specific Aspects of the Performance) contained the entries “the applicant refused to keep his superiors appraised of his activities, taking advantage of geographical distance and dissimilar drill dates; he failed to provide, in a timely fashion, reports of his activities; the applicant is not a team player and should not be given the opportunity to work unsupervised.” 

	d.  Part V(d) (Officer Potential for Promotion to the Next Higher Grade) was marked “Do not promote.” 

	e.  Part V(e) (Comments on Potential) contained the entry “the applicant’s potential is in direct proportion to the close supervision under which he might be placed.” 

	f.  Part VII(a) (Potential Evaluation) contained an entry by the Senior Rater giving the applicant an "Above Center of Mass (ACOM)" and placed the entry “the applicant’s performance was less than expected” in Part VIIb. 

6.  On 14 October 1996, by memorandum, the applicant notified his Senior Rater of administrative errors in the OER to include his basic branch and the rating period and rebutted the comments regarding abandoning subordinates and failing requirements.

7.  On 16 October 1996, by memorandum, the applicant requested a Commander’s Inquiry citing administrative and substantive errors and violation of Army Regulation 623-105.  

8.  On 18 March 1997, the applicant was notified by memorandum of the findings of the Commander’s Inquiry.  The inquiry found administrative and substantive errors in the OER and recommended corrections be made.  The OER contained administrative errors that included the applicant’s incorrect branch and the rating officials’ signatures dated prior to the "through date" of the OER.  It also found substantive errors regarding the following entries:

	a.  the entry that stated “virtually abandoned his subordinates”; the applicant had no subordinates.

	b.  the entry that stated “often failed requirements; the applicant was tasked with only one requirement and it was performed to standard.

	c.  the entry that stated “despite being counseled numerous times”; there was no record the applicant was counseled. 

	d.  the entry that stated “is not a team player”; does not relate to specific aspects of the applicant’s performance. 

	e.  the entry “do not promote”; personal, unfounded, and had no basis.

	f.   the entry “potential is in direct proportion to the close supervision under which he might be place[d]”; contradicts the Block 4 entry the applicant received in Part VIIa.

9.  On 14 April 1998, by memorandum submitted to the Commander, HRC-St. Louis, Missouri, the applicant requested a Special Selection Board.  

10.  On 17 May 1999, the HRC-St. Louis, Missouri, Deputy Chief, Officer of Promotions, responded to the applicant informing him that: 

	a.   he was considered for promotion to LTC by the 1996, 1997, and 1998 Reserve Component Selection Board (RCSB), but was not recommended for promotion.  

	b.  the 1996 RCSB did not see the applicant’s OER for the period 20 April 1993 through 19 April 1994 and that the missing report would not have made a difference in the Board’s decision.  

	c.  the 1997 and 1998 RCSBs considered all the applicant’s documents, but still did not select him.

	d.  the OERS for the period 20 April 1994 through 19 April 1995 and 15 September 1995 through 14 September 1996 contained errors and were returned to the applicant’s unit for correction and that those two OERs were never returned to HRC for profiling. 

	e.  he had completed 20 years of military service (notified on 1 July 1996) and had not made a decision regarding transfer to the Retired Reserve or discharge.


11.  There is no indication in the applicant's records that he acted upon the notification to be discharged or transferred to the Retired Reserve and there is no indication that HRC, St. Louis, Missouri, published an order discharging the applicant or transferring him to the Retired Reserve, as shown in HRC's memorandum, dated 17 May 1999.

12.  On 18 May 2007, HRC-St. Louis, Missouri, published Order P05-786193, placing the applicant on the Retired List, in the rank of MAJ/O-4, effective 21 June 2007. 

13.  The following is a record of the applicant's OERs commencing with the report closing 14 June 1991.  Note that for the DA Form 67-8 the rating system depicted below has six entries:  the first two entries are derived from the rater performance and potential blocks, expressed in numerals, with 1 the highest and 5 the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant:

  Period			        Score/			     Type of Report
(YY/MM)			Rater/SR Profile

9105-9106	1/1/Top2/5-16-17	Release from AD
9106-9106	1/1/Top2/0-4-1	Release from AD
9204-9304	1/2/Top3/1-0-0	Annual
9304-9404	2/2/Top3/74-28-2	Annual
9404-9504	2/2/Top3/No Profile	Annual


In 1998, a new version of the OER was fielded.  For DA Form 67-9, the first rating entry relates to the rater’s evaluation of performance, expressed in numerals, with 1 the highest and 4 the lowest; the second numeral refers to the rater’s evaluation of promotion potential on a scale of 1 to 4; and the third rating refers to the SR’s evaluation of the applicant’s potential compared with officers senior-rated in the same grade, stated in terms of Above Center of Mass (ACOM), COM, or Below (BCOM):

  Period			        Score/			     Type of Report
(YY/MM)			Rater/SR Profile

9808-9902	2/2/COM	Change of Rater

14.  In a lengthy self-authored statement, the applicant states that upon his assignment to the 361st Civil Affairs Brigade, he was tasked by the Commanding General to conduct physical security surveys and staff visits to subordinate elements and that his visits would be in place of his scheduled drills as a member of the USAR.  He adds that his Rater was unhappy with his non-attendance of regular drills and even denied his request for training for Civil Affairs certification. He further states that his rater took advantage of leadership turnover and removed him from the unit in May 1996.  He requested to transfer to the Individual Ready Reserve (IRR), but did not receive a response to his request.  In June 1996, he contacted the Fort Bragg, North Carolina, Inspector General (IG).  His Rater then rendered an annual OER which the applicant refused to sign.  A Commander’s Inquiry was conducted and ruled in his favor in March 1997.  Meanwhile, the applicant states, he kept in touch with HRC-St. Louis, Missouri, regarding his non-selection to LTC.  He was informed that the OER for the period 15 September 1995 through 14 September 1996 was returned by HRC to the unit for correction and that he was not selected for promotion due to a missing OER.  He was then transferred to another unit in August 1998, but still was not selected for promotion by the 1998 RCSB, so he requested a transfer to the Retired Reserve.  He also argues that he attempted in every way to resolve this matter to no avail.  He concludes that he was never placed in the Retired Reserve and was discharged without his knowledge.  As a result, he is requesting reinstatement in the Retired Reserve, a Special Selection Board to be convened for his promotion to LTC, and all derogatory information be removed from his official records.  

15.  The applicant submitted a lengthy Resume, listing his military and civilian education, expertise, certification, experience, consulting and teaching, extensive employment history, publications, professional schools, and Army schools. 

16.  An advisory opinion was obtained in the processing of this case.  On 16 July 2007, the Chief, Special Actions Branch, Office of promotions, HRC-St. Louis, Missouri, stated that the applicant’s OERs were returned to his unit for correction and have never been returned to HRC for profiling.  Since the OERs were never profiled, the applicant could not appeal them.  Additionally, the profiling system for OERs rendered during that period of time no longer exists; therefore they can no longer be processed.  The Deputy Chief concluded that the applicant has no basis for a Special Selection Board and recommended the applicant’s request be denied.


17.  In a rebuttal statement, dated 14 November 2007, the applicant responded to the advisory opinion stating that he has attempted to resolve this matter for a long time.  He argues that he was not given the opportunity to see his promotion file and that despite meeting all the requirements for promotion to LTC, he was not told why he was not selected or given the opportunity to see his promotion board results.  He concludes that he should not be penalized for his rating officials’ failure to correct the OERs or the Army’s discontinued profiling system.  He requests a direct promotion to LTC. 

18.  Title 10, U.S. Code, section 616 (c) and section 14108 (b), along with the Secretary of the Army’s Memorandum of Instructions (MOI) stipulate that an officer must be found fully qualified by the Board to be selected for promotion.  An officer who is found fully qualified by a RCSB is an officer who should be recommended for promotion.  Selection Boards, in determining whether an officer is “fully qualified” for promotion, should satisfy themselves that an officer is qualified morally and professionally, has demonstrated integrity, is physically fit, and is capable for performing the duties of an officer with his or her qualifications in the next higher grade, and is educationally qualified.  The Board is provided with a zone of officers to consider as well given a specific number of officers it must select.  Based on careful consideration of each officer determined to be fully qualified, individuals recommended for selection will be determined  to be best qualified through ability, potential for future service, and particular skills, to assume the duties of the next higher grade and to meet the needs of the Army as outlined by each Board’s memorandum of instruction.   Boards are not required to divulge the proceedings or the reason(s) for non-selection.

19.  Title 10 U.S. Code Section 14502 governs Special Selection Boards.  In the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for selection for promotion from in or above the promotion zone by a mandatory promotion board convened under section 14101(a) of this title because of administrative error, or whose name was not placed on an all-fully-qualified-officers list under section 14308 (b)(4) of this title because of administrative error, the Secretary concerned shall convene a special selection board under this subsection to determine whether such officer or former officer should be recommended for promotion.  Any such board shall be convened under regulations prescribed by the Secretary of Defense and shall be appointed and composed in accordance with section 14102 of this title and shall include the representation of competitive categories required by that section.  A special selection board convened under this subsection shall consider the record of the officer or former officer as that record would have appeared to 

the promotion board that should have considered the officer or former officer. That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board.  In the case of an officer or former officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone under this chapter by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board under this subsection to determine whether the officer or former officer should be recommended for promotion, if the Secretary determines that the action of the selection board that considered the officer or former officer was contrary to law or involved material error of fact or material administrative error; or the selection board did not have before it for its consideration material information. 

20.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board/advisory board may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests he be promoted to LTC and "reinstated" in the Retired Reserve.  The applicant is already a member of the Retired Reserve in the rank of major; therefore, it is presumed he is merely asking for retroactive promotion to LTC.

2.  The applicant essentially blames his three-time nonselection for promotion to LTC on the subject, adverse OER.  He contends the OER was completed with several glaring administrative and substantive errors.  Then, when the errors were identified via a Commander's Inquiry and the OER was rejected by ARPERSCOM and returned to the unit for correction, those corrections were not made and the OER was never resubmitted.  He contends that had his OER been corrected and resubmitted in a timely manner, and processed by ARPERSCOM, it would have been included for consideration at his LTC promotion board, further solidifying his strong record of performance, and he would have been promoted.

3.  His assertions notwithstanding, the applicant's OER history as a major is decidedly below average.  His first two OERs are for very short periods and reflect COM senior ratings; one of the reports has an immature senior rater profile [only 5 ratings].  These reports are of limited value.  His next three reports have "2's" in either or both rater performance and potential blocks; this is decidedly substandard.  The third report gives him a senior rater profile in Block 3 and it is the only rating shown for the senior rater; this rating is meaningless at best.  The forth report gives him a senior rater profile in Block 3, which is BCOM.  Coupled with damaging rater performance and potential block ratings of "2," this constitutes a substandard OER.  Even his one OER under the DA Form 67-9 system is substandard because he was only rated a "2" by his rater for performance and potential; this Block is uniformly rated "1" for officers.  In short, the applicant's OER record as a major is weak and cause for his nonselection for promotion to LTC without considering the subject OER.

4.  The applicant contends that his OER was not processed in accordance with established guidance and that, for unknown reasons, his rating officials failed to correct and re-submit his OER.  This delinquent OER was never entered in the applicant’s record for profiling.  As a result of the delay, he feels he potentially missed a promotion opportunity to LTC.  Had his OER been corrected, submitted, and profiled in a timely manner, it would have been included for consideration at his LTC promotion board, would have further solidified his strong record of performance, and would have enforced the RCSB’s opinion to select him for promotion to LTC.  In reality, the subject OER was an adverse OER and, even if all of the errors noted by the Commander's Inquiry were corrected, it would still have been an adverse OER.  Had it been included in his promotion packet, it would have served only to reduce his chances for promotion even further.

5.  The HRC advisory opinion concedes that two of the applicant's OERs were mishandled.  They were submitted with errors and returned to his unit for correction; the corrections were apparently never made and the OERs were never resubmitted to HRC for profiling and placement in the applicant's records.  The opinion points out that the applicant's request, now some 10 years late, cannot be acted upon.  The DA Form 67-8 system was replaced in 1998 by the USAR; therefore, the capability no longer exists to profile and process the subject OER.  The HRC advisory opinion recommends denying the applicant's request.

6.  In his rebuttal to the advisory opinion, the applicant basically states that none of the events surrounding his OER is his fault.  He asserts that he met all of the requirements for promotion, including time in service, time in grade, and military and civilian educational requirements.  He therefore believes he should be granted a "direct promotion to LTC."  This argument ignores the fact that his OER record, with or without the subject OER, did not support his promotion to LTC.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __mjf___  __sjs___  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.




							William D. Powers
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070008239
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.