RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070014731 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. Troup

Member

Mr. Thomas M. Ray

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 that his date of rank (DOR) to lieutenant colonel (LTC) be corrected to show that he had been promoted on time with his peers, about November 2004 – March 2005.

2.  The applicant states that this issue not only relates to himself but also to over 100 other officers selected for promotion to LTC “double-plus” above the zone by the fiscal year 2006 (FY06) LTC promotion board.  He believes the Army unjustly denied their promotions on previous selection boards.  None of their potential or qualifications has changed since their original selection window.  In a news article, the Army stated, “You only get promoted if you’re fully qualified.”  Unequivocally, the Army realized it had previously erred in not selecting these officers.

3.  The applicant states that the memorandum of instructions (MOI) to the promotion board instructed the board to “be alert to the possibility of past personal or institutional discrimination – whether intentional or inadvertent – in the assignment patterns, evaluations or professional development of all officers.  Such discrimination may include disproportionately lower evaluation reports; assignments of lesser importance or responsibility; lack of opportunity to attend career-building military schools…unrelated to duty performance or potential.”  Logically, the Army is admitting to injustices and biases by previous promotion boards by now selecting officers “double above the zone” or higher.  There is no other reason since their potential and even records have not changed from previous boards.

4.  The applicant states that, during research on this issue, he came across articles concerning the improper instructions presented to selection and promotion boards from 1992 to 1999.  He believes it possible that selection boards in that time frame have directly affected his career, but did not do so until he was passed over for LTC, which is why he feels it is not affected by any statute of limitations.  There is no redress for officers passed over for promotion or not selected (for military schools).

5.  The applicant states the greatest systemic flaw exists within the Officer Evaluation System (OES).  The Senior Rater’s Assessment is rarely based on facts or direct observations, but rather indirect information, hearsay, and opinion. He provides a draft theorem that explains this concept further.  The Army has started to repair this flaw by rescinding the requirements for profiling company 

grade officers as well as making the resident Command and General Staff Officer Course the norm.  The Army needs to further repair the systemic flaws in the system.

6.  The applicant’s promotion boards “compare” officers to determine promotion, and he cannot help but do the same.  He cannot help but compare himself to officers who held similar major-level branch-qualifying (BQ) positions.  The circumstances of four officers who were selected for promotion, and with whom he was acquainted, stand out in his mind.  The first officer voluntarily departed his second BQ job mid-tour for personal, though extremely noble, reasons.  He was selected below the zone and battalion command.  The second officer received a driving under the influence (letter) earlier in his career and was selected below the zone for major and received battalion command.  The third officer was asked to leave the unit due to poor performance following his first BQ job and had to find one in another brigade.  He was selected for LTC in the zone. The final officer received a letter of reprimand for serious misconduct while in Iraq.  This officer was promoted in the primary zone.  

7.  The applicant states that, to continue the discussion about systemic inequities, there is not “One Army” but rather multiple Armies.  There are two different standards between promotions within the Reserve Component and the Active Component.  Reserve Component officers can be promoted with fewer qualifications than required for their Active Component counterparts.  When they are brought on active duty, they are less qualified to hold the same position they do, yet they could supervise Active Component officers more qualified to hold the same position.  

8.  The applicant provides Tabs A through F:

     A.  an article from the Boston Globe, dated 13 March 2007; 

     B.  the MOI for the FY06 LTC promotion selection board; 

     C.  an article from CBSNews.com, dated 5 March 2002; two articles from the Washington Post, one dated 6 March 2002 and one dated 5 March 2002; and several articles from Adversity.Net, dated 1998/1999; 

     D.  a letter to the Secretary of the Army, dated 15 August 2006;

     E.  a 17-page paper, “The Senior Rater Theorem:  An Attempt to Quantify (or at Least Graphically) the Unquantifiable and its Link to the Systemic Failure of The (sic) Army Evaluation and Selection System”; and

     F.  a response from the U. S. Human Resources Command (USAHRC), dated 12 October 2006, to the applicant’s 15 August 2006 letter to the Secretary of the Army; and a response from USAHRC, dated 6 March 2007, to a letter from the applicant, dated 28 January 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant out of the U. S. Military Academy on 25 May 1988.  He was promoted to major on 1 February 1999 as an Armor officer.  He was promoted to LTC on 29 September 2006.

2.  The applicant provided an article, dated 13 March 2007, from the Boston Globe.  The article noted that the Army was accelerating its officer promotion rates to fill a growing number of vacancies in the officer corps.  There were two reasons for the vacancies.  One reason was the pressures of war and the urgent need for field commanders.  The other reason was the fact that unit leaders are quitting the Army faster than anticipated.  In 2006, the Army had a goal of promotion about 70 percent of eligible majors to LTC.  Instead, it promoted       90 percent of them to fill the vacuum.  The Army maintained that it had not sacrificed quality for accelerated promotions.  The Army stated, “All of the officers we have, particularly the midgrade officers, are qualified.  You only get promoted if you’re fully qualified.”

3.  Title 10, U. S. Code, section 618(f) states that, except as authorized or required by this section, proceedings of a selection board convened…may not be disclosed to any person not a member of the board.  

4.  On 5 June 2000, the U. S. Court of Federal Claims established, in Christian v. United States (a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement), that the Equal Opportunity instructions used by the SERB were unconstitutional.  On 8 February 2001, that Court ruled that the results of that board are void.  

5.  Prior to the Christian v. United States case, promotion and other selection boards were provided equal opportunity instructions in their MOIs that informed the board there was a goal to achieve a certain percentage of minority and female selections.  After the case, the equal opportunity instructions in the MOIs were amended to delete any references to goals but still noted that there could 

have been discrimination in the past.  In addition, the law was amended to provide a remedy for those individuals who believed themselves to be injured by the previous MOI equal opportunity instructions.  

6.  The applicant provided the MOI given to the FY06 LTC promotion selection board.  Paragraph 5 contained equal opportunity instructions.  Paragraph 5a stated, in part, "To the extent that each Board demonstrates that race, ethnic background, and gender are not impediments to selection for school, command, and promotion, our soldiers will have a clear perception of equal opportunity in the selection process."

7.  Paragraph 8b of the MOI advised the board members to be alert to the possibility of past discrimination.  Indicators of discrimination could include disproportionately lower evaluation reports, assignments of lesser importance or responsibility, or a lack of opportunity to attend career-building military schools.  Those factors were to be taken into consideration in assessing the degree to which an officer's record, as a whole, was an accurate reflection, free of bias, of that officer's performance and potential.  The paragraph ended, "The foregoing guidance shall not be interpreted as requiring or authorizing you to extend any preference of any sort to any officer or group of officers solely on the basis of race, ethnicity, or gender."

8.  Title 10, U. S. Code, section 628(b)(1) states that, if the Secretary concerned determines, in the case of a person considered but not selected for promotion by a promotion board, that there was material unfairness with respect to that person, the Secretary may convene an special selection board (SSB) to determine whether that person should be recommended for promotion.  In order to determine that there was material unfairness, the Secretary must determine that (A) the action of the promotion board that considered the person was contrary to law or involved material error of fact or material administrative error; or (B) the board did not have before it for its consideration material information.

9.  Title 10, U. S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.  Corrections shall be made under procedures established by the Secretary concerned.

10.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  In pertinent part, it 

states that an applicant with a proper interest may request correction of another person's records only when that person is incapable of acting on his or her own behalf, is missing, or is deceased.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that his promotion issue also relates to over 100 other officers selected for promotion to LTC “double-plus” above the zone by the fiscal year 2006 (FY06) LTC promotion board.  However, the ABCMR may only act on his application as he does not have a “proper interest” as defined by regulation in the cases of the other officers.  

2.  The applicant contended that because an Army spokesperson stated in a news article, “You only get promoted if you’re fully qualified,” he believed, “Unequivocally, the Army realized it had previously erred in not selecting these officers.”

3.  The article from which the applicant was quoting noted that the Army was accelerating its officer promotion rates to fill a growing number of vacancies in the officer corps.  The vacancies were due to the pressures of war and the urgent need for field commanders and due to the fact that unit leaders are quitting the Army faster than anticipated.  

4.  The article noted that in 2006 the Army had a goal of promoting about           70 percent of eligible majors to LTC.  Instead, it promoted 90 percent of them to fill the vacuum.  The Army increased the number of promotions to fill vacancies, not because it “realized it had previously erred in not selecting” officers who were previously not selected.  The increased promotion rate raised concerns that the Army was sacrificing quality for accelerated promotions.  The Army defended its increased promotion rate by noting in the article that only fully qualified officers were being promoted.  

5.  Promotions are made by “best qualified” criteria.  In previous years, when there were not as many vacancies to fill, some officers who may have been fully qualified for promotion were not sufficiently above the cut-line goal to be considered best qualified for promotion.  

6.  Title 10, U. S. Code, section 618(f) states that, except as authorized or required by this section, proceedings of a selection board convened…may not be disclosed to any person not a member of the board.  The ABCMR cannot compare the applicant’s files to those of officers who were selected for promotion 

instead of him.  It cannot even be determined if the four specific officers the applicant mentioned were Armor officers or officers in some other branch.  However, promotion selection board members are senior Army officers.  In the absence of evidence to the contrary, it must be presumed that it was their considered judgment that the records of those selected for promotion more favorably compared to the applicant’s records in those previous years.  

7.  The applicant contended that the MOI instructed the board to “be alert to the possibility of past personal or institutional discrimination – whether intentional or inadvertent – in the assignment patterns, evaluations or professional development of all officers.”  He contended that, logically, the Army is admitting to injustices and biases by previous promotion boards by now selecting officers “double above the zone” or higher.  He contended that there was no other reason since their potential and even records had not changed from previous boards.

8.  The Army admitted after Christian v. United States that there were injustices and biases by previous promotion boards in selecting officers.  However, those injustices were remedied with the change in the MOI to delete the reference to minority and female officer “goals” and a specific remedy was provided for those individuals who believed themselves to be injured by the previous MOI equal opportunity instructions.  There is another reason for now promoting officers “double above the zone” or higher, as noted in paragraphs 3, 4, and 5 above.  

9.  The applicant contended that there is no redress for officers passed over for promotion or not selected (for military schools).  There is a remedy; however,  with the new MOI equal opportunity instructions that did away with prescribed “goals” an officer must now show that his nonselection involved a material error of fact or a material administrative error.  The applicant has provided insufficient evidence to show he was previously nonselected due to a material error of fact or a material administrative error.

10.  The applicant’s contention that the greatest systemic flaw exists within the OES is noted.  However, even assuming there is a systemic flaw (which the applicant has not proven to be the case), this same flaw would then apply to every other officer in the Army.  Therefore, the applicant would not be on an unequal footing in regard to promotion consideration.

11.  The applicant’s contention concerning the inequities in the Reserve Component and the Active Component promotion system is noted.  However, since he was not being compared to Reserve Component officers by the promotion selection boards, that argument has no valid merit in regard to his promotion issue. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jns___  __mjt___  __tmr___  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.




__John N. Slone_______
          CHAIRPERSON




INDEX

CASE ID
AR20070014731
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
131.00
2.

3.

4.

5.

6.