IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080015219 


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, in effect, consideration for promotion to colonel (COL) by a Special Selection Board (SSB). 

2.  The applicant states, in effect, that there were material errors in his record in the form of three missing Officer Evaluation Reports (OERs) and missing awards and recognition for his service during Operation Iraqi Freedom (OIF) when he was considered for promotion by the 2007 COL Army Medical Department (AMEDD) Colonel Reserve Components Selection Board (RCSB).  He adds that despite multiple requests to his unit and/or brigade over a period of several months, OERs from 2004 to 2007 rating periods failed to be added to his official military personnel file (OMPF) in time to be considered by the promotion board and instead, his brigade issued statements of non-rated time.  He also adds that once the situation was eventually corrected and the statements of non-rated time were removed, he requested consideration for promotion by an SSB; however, his request was denied because the senior raters (SR’s) comments on the newly added OERs were not strong enough.  He further adds that his SR's comments disregarded input from the rater and did not reflect his actual performance and abilities because his SR was geographically distant from his unit and was not personally familiar with him or his record of service. 

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  A letter, issued by the U.S. Army Human Resources Command (HRC), St. Louis, Missouri (MO), on 24 April 2008.
	b.  DA Forms 67-9 (Officer Evaluation Reports) for the periods 20031206 through 20040415, 20040416 through 20050415, 20050416 through 20060415, and 20060416 through 20070415.

	c.  Permanent Orders 180-10, issued by Headquarters, Army Reserve Medical Command, Pinellas Park, Florida, on 29 June 2006, awarding him the Combat Action Badge.

	d.  A memorandum, dated 29 March 2004, issued by Headquarters, 67th Combat Support Hospital, Iraq.

	e.  Certificate of recognition for support of the Global War on Terror.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a first lieutenant in the Kentucky Army National Guard (KYARNG) and executed an oath of office on 21 January 1989.  He was assigned to the 973rd Medical Detachment, Frankfurt, KY, and was promoted to captain on 16 February 1991.  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 10 January 1996.

2.  On 21 January 1996, the applicant was appointed as a dental officer in the USAR and was subsequently assigned to the 380th Medical Company (Dental Service), Millington, Tennessee.  His records also show he was promoted to major on 15 February 1998 and lieutenant colonel on 7 February 2003.

3.  On 7 December 2003, the applicant was ordered to active duty in support of OIF.  He subsequently served in Iraq from 18 January 2004 to 22 April 2004.  He was honorably released from active duty on 17 May 2004. 

4.  On 5 September 2007, the applicant was considered for promotion by the 2007 COL AMEDD RCSB; however, he was not selected for promotion.

5.  On 20 December 2007, the applicant submitted a request to the HRC-St. Louis, MO for promotion consideration to COL by an SSB.

6.  On 3 January 2008, by email, the Chief, Special Actions, Department of the Army (DA) Promotions, HRC-St. Louis, MO responded to the applicant.  In his response, the Chief acknowledged the applicant’s diligence in his quest to compete for the promotion board and the fact that some OERs were missing from his records.  The Chief further explained the procedure to request an SSB and forwarded the applicant's email to the Chief of Eligibility Section.
7.  On 24 April 2008, by letter, the Chief, DA Promotions, HRC-St. Louis, MO, notified the applicant that a special review team had carefully considered his request for reconsideration and reviewed his records.  The team determined that his record did contain a material error when originally seen by the mandatory board but that the OERs that he submitted in conjunction with his permanent record were not significant enough in nature that they would have made a difference in his promotion status.  Accordingly, his request was denied in accordance with paragraph 3-19(f-2) of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

8.  An advisory opinion was obtained on 3 November 2008 in the processing of this case.  The Chief, Special Actions, DA Promotions, recommended denial of the applicant’s request.  He stated that the applicant was considered for promotion by the 2007 COL AMEDD DA RCSB that convened on 5 September 2007, but he was not selected.  The applicant did not review his board file prior to the date the board convened.  He did, in fact, have three missing OERs; however, in accordance with paragraph 3-19(f) of Army Regulation (AR) 
135-155, the chief of DA Promotions has the authority to review the missing OERs and decide whether or not the OERs would make a significant difference if the file was reconsidered.  Because the 2007 COL AMEDD board was a best qualified board and all three of the missing OERs were marked fully qualified by the applicant’s SR, the request for reconsideration was denied.  

9.  On 24 November 2008, the applicant was furnished a copy of this advisory opinion.  He responded on 31 December 2008.

10.  AR 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers (WO) of the USAR.  Chapter 3 outlines board schedules and procedures.  Paragraph 3-4 provides guidance on notices of consideration.  It states, in pertinent part, that the notice of consideration will be dispatched at least 90 days before the convening date of the board.  Officers will be directed to review their records and submit copies of missing documents or other corrections.

11.  Paragraph 3-19 of the promotions regulation contains guidance on promotion reconsideration boards.  Paragraph 3-19e states that in order to find a material error, the Office of Promotions must make a determination that there is a fair risk that one or more of the following circumstances was responsible:  (1)  The record erroneously reflected that an officer was ineligible for selection for 

educational or other reasons.  In fact, the officer was eligible for selection when the records were submitted to the original board for consideration; (2)  One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3)  One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4)  One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5)  Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6)  An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7)  The Silver Star or higher award was missing from an officer's OMPF; or (8)  An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.

12.  Paragraph 3-19 of the promotions regulation also contains the following list of factors that will normally result in a material error determination:  (1)  Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used.; (2)  An administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF, or the officer could have taken timely corrective action; and (3) Letters or memorandums of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. 

13.  Paragraph 3-20 contains guidance on information provided to SSBs.  It states that a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board.  Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by a special selection board.  The records of officers being reconsidered by a special selection board will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board.  

14.  Department of the Army Memo 600-4 (Policies and Procedures for Reserve Components Officer Selection Boards), Appendix A, Section II, states a board will identify fully-qualified officers from among those under consideration.  If promotions are to be made from best-qualified officers only, the board will then tentatively identify officers who are considered best qualified for promotion based 

upon the maximum number of selections stipulated in the convening authority's memorandum to the board.  The number of officers whose names appear on the final selection list will not exceed the maximum selection capability specified in the memorandum of instructions.  At the conclusion of the deliberative process, the board will conduct a formal vote to ensure that no officer is recommended as best qualified for promotion unless he or she receives the recommendation of a majority of the members of the board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reconsidered for promotion to COL by an SSB.

2.  The evidence of record shows that at the time the 2007 COL AMEDD RCSB convened, the applicant's official military file contained a material error in the form of three missing OERs.  The evidence of record also shows that the applicant attempted to resolve the OER issues with his chain of command prior to the date his promotion board convened; however, he was unsuccessful.  

3.  The evidence of record further shows the applicant ultimately resolved the missing OER issue and subsequently requested consideration by an SSB; but, his request was denied because it was determined his OERs were not strong enough.

4.  It is acknowledged that the governing regulation gives the Office of Promotions the authority to make a determination that there is a fair risk that  one or more of the missing OERs that should have been seen by a board was the reason for his nonselection.  However, based upon the guidance in Department of the Army Memo 600-4, it appears that a promotion selection board would be the best judge of whether or not the missing OERs rendered the applicant only fully qualified rather than best qualified.

5.  Therefore, notwithstanding the advisory opinion provided by the Chief of DA Promotions, it appears that at the time the applicant's file was considered for promotion, he was disadvantaged by the absence of three OERs.  It is therefore concluded in the interest of justice and equity that it would be appropriate to grant the applicant's request for promotion consideration to COL by an SSB under the 2007 COL AMEDD promotion criteria.

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


BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:  

	a.  Submitting the applicant’s records to a duly constituted SSB for consideration for promotion to colonel under the 2007 COL AMEDD promotion selection board criteria. 

	b.  That if the applicant is selected for promotion his records be further corrected by promoting him to colonel based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

	c.  That if the applicant is selected for promotion his records be further corrected by removing from his records all documents relating to the previous non-selection for promotion to colonel. 

	d.  That if not selected, the applicant be so notified.



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      _______ _   _______   ___
       	   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)                                         AR20080015219



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ABCMR Record of Proceedings (cont)                                         AR20080015219



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