IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090004278 


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 that he be reconsidered for promotion to the rank of colonel (O-6) by a special selection board.

2.  The applicant states his request is based on the fact that his file, seen by the original promotion board, contained a material error.  He states the material error was a missing officer evaluation report (OER) for the period ending on 4 April 2004.  He states that while the Army Human Resources Command (HRC) in St. Louis, Missouri, concluded that his "record did contain a material error when originally seen by the mandatory board" that agency then went on to deny promotion reconsideration by citing the provisions of paragraph 3-19f(2) of Army Regulation 135-155.

3.  The applicant states that paragraph 3-19f(2) pertained to administrative errors and that a missing OER is not an "administrative error" but rather a material error as cited in paragraph 3-19c(2) of Army Regulation 135-155.  He also cited DOD Instruction 1320.11 which states that each military department shall use a special selection board if the decision of the original board involved a factual or administrative error, or if the board lacked some material information for consideration.

4.  The applicant provides a copy of the April 2004 OER which he states was missing from his file; a copy of the letter from the Chief, Department of the Army Promotions, HRC, St. Louis, which denied his request for promotion reconsideration; an extract from Army Regulation 135-155; and a copy of DOD Instruction 1320.11 in support of his request.
CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant is a United States Army Reserve (USAR) officer who was promoted to the rank of lieutenant colonel (O-5) on 22 April 2000.

2.  Documents in the applicant's official military personnel file (OMPF) indicate he was ordered to active duty in support of Operation Enduring Freedom on 4 January 2004.

3.  More than a year later, on 4 April 2005 while the applicant was still on active duty, a 3-month change-of-rater OER was rendered covering the period 3 January 2004 through 4 April 2004.  The report evaluated the applicant's performance as a Joint Staff Officer, although his principal duty title was recorded as "CCC Operations Officer."  This is the report the applicant contends was not seen by his mandatory O-6 promotion selection board and which now serves as the basis for his request to this Board.

4.  At the end of April 2005 an annual OER for the period 5 April 2004 through 4 April 2005 was rendered on the applicant.  The duties he was rated for were identical to the duties and responsibilities he was rated on for the previous 
3-month change-of-rater report.

5.  On 7 October 2005 the applicant was released from active duty upon completion of his required active service.

6.  The applicant's OMPF contains three letters (dated 15 December 2004, 17 November 2005, and 24 October 2006) indicating the applicant had been considered but not selected for promotion to O-6 in July 2004, 2005, and 2006.  Each of the three letters noted that if he remained eligible the applicant would "be considered for promotion by the next mandatory selection board for your grade and competitive category."

7.  In a 26 August 2008 letter, the applicant was notified that his request for promotion reconsideration by a Department of the Army special selection board had been denied.  The letter informed the applicant that a special review team considered his request and determined that his "record did contain material error when originally seen by the mandatory board; however, the OER ending 20040404 was not significant enough in nature, that in conjunction with your permanent record it would have made a difference in your promotion status."  The letter then concluded that "in accordance with Army Regulation 135-155, paragraph 3-19f(2), I am denying your request."

8.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that selection boards will convene at the discretion of the Secretary of the Army (SA) to consider Army National Guard and USAR officers in all completive categories for promotion to colonel (O-6).  Officers not selected for promotion to colonel will continue to be considered by subsequent selection boards until either selected or removed from the Reserve Active Status List.

9.  Paragraph 3-4, Army Regulation 135-155, states that the SA or his or her designee will establish the zone of consideration for each mandatory promotion board and that officers in the zone of consideration for mandatory selection board consideration will be notified and directed to, among other things, review their records and submit copies of missing documents or other corrections.

10.  Paragraph 3-5, Army Regulation 135-155, states that the Deputy Chief of Staff-G-1 (Personnel) will convene a promotion advisory board/special selection board on an "as needed" basis.  These boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error or who were non-selected for mandatory promotion as a result of material error.

11.  The glossary of terms in Army Regulation 135-155 describes material error as "one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's nonselection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion."

12.  Paragraph 3-19c, Army Regulation 135-155, states these boards (promotion advisory boards/special selection boards) are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board.

13.  Paragraph 3-19d(2), Army Regulation 135-155, states that records of officers or former officers will be referred for special selection board action when the Office of Promotions (Reserve Components (RC)) determines a review of a mandatory selection board finds that an officer's records contained a material error.  Paragraph 3-19e(3) goes on to say that the Commander, HRC, Office of Promotions (RC), may find that a "material error" (as defined in the glossary) caused the nonselection of an officer by a promotion board.  It states the agency must first determine that there is a "fair risk that one or more of the following circumstances was responsible" and cites "one or more of the evaluation reports that should have been seen by a board were missing from an officer's OMPF" as a basis for finding that material error existed.

14.  Paragraph 3-19f of Army Regulation 135-155 goes on to state that normally the Commander, HRC, Office of Promotions, will not determine that a material error existed if an "administrative error was immaterial, or the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF.  Also, the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that he or she had."

15.  Paragraph 3-21, Army Regulation 135-155 states an officer who discovers that a material error existed in his or her files at the time he or she was nonselected for promotion may request reconsideration.  However, it also notes that reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.

16.  DOD Instruction 1320.11 does state that each military department shall use a special selection board if the decision of the original board involved a factual or administrative error, of if the board lacked some material information for consideration.  It also states that a special selection board shall not consider any person who may, by maintaining reasonable careful records, have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board suggests the applicant is maintaining that his 3-month change of rater OER for the period 3 January 2004 through 4 April 2004 was not seen by the mandatory selection board for promotion to O-6 which convened in July 2004 and which did not select him for promotion.  As such, it constitutes a material error which warrants reconsideration by a special selection board.

2.  While Army Regulation 135-155 does state that records of officers or former officers will be referred for special selection board action when the Office of Promotions (RC) determines that an officer's records contained a material error, it does not require such a determination merely because the officer's file failed to contain an OER at the time the file was reviewed by a selection board.

3.  Rather, the regulation goes on to say that the Office of Promotions may find that a material error existed if one or more evaluation reports that should have been seen by a board were missing from the officer's file and that had such evaluation report been in the individual's file there was a reasonable chance the officer would have been recommended for promotion.

4.  In this particular case, according to the August 2008 letter from the Chief, DA Promotions, a determination was made that the OER in question "was not significant enough in nature" that with the applicant's permanent record it would have made a difference in his promotion status.  Because the Office of Promotions made that conclusion, under the provisions of paragraph 3-19e(3) they should not have determined that the applicant's record contained a material error.

5.  Additionally, in the same letter the Office of Promotions then went on to deny promotion reconsideration by citing the provisions of paragraph 3-19f(2) of Army Regulation 135-155 which states that the Office of Promotions will not determine that a material error existed if the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the OMPF.  It should also be noted that paragraph 2-19f(2) of Army Regulation 135-155 pertains to administrative errors or reasonable diligence, two separate issues, and in this case the Office of Promotions was citing reasonable diligence as a basis for its decision and not administrative error.

6.  Based on the fact that the Office of Promotions concluded that the OER in question "was not significant enough in nature" to have made a difference in his promotion status and also concluded that he failed to exercise reasonable diligence, it could not and should not have then determined his record contained a material error when originally seen by the selection board as stated in its letter.  To render such a determination based solely on the absence of an OER would negate the need for any other determination by the Office of Promotion.

7.  In view of the foregoing, it can be concluded that the Office of Promotions erred when they determined the applicant's file contained a material error when originally seen by the mandatory board.  The evidence does, however, support the Office of Promotions' conclusion that the applicant failed to exercise reasonable diligence and that the OER in question was not significant enough to have changed the outcome of the 2004 selection board.

8.  It is noted that the applicant was on active duty at the time the July 2004 promotion board convened, and yet offers no explanation as to why the OER in question was not rendered until April 2005, well after the ending of the report and after he was notified of his nonselection for promotion by the July 2004 board.  What is also unclear is when the applicant submitted his request for promotion reconsideration which was denied by HRC St. Louis in August 2008.

9.  Notwithstanding the foregoing information, however, it is clear that the applicant should have known that his rater changed in April 2004 and as such should have and could have taken steps at that time to ensure an evaluation report was prepared and submitted which would have ensured that it was seen by the 2004 board.  The fact that it appears the applicant did not raise the issue until several years after the fact supports a conclusion that, in fact, the applicant did not exercise reasonable diligence to correct the error or omission in his OMPF.

10.  Additionally, after a review of the applicant's available file it can be concluded that had this single 3-month change-of-rater OER been in the applicant's file in July 2004 he still would not have had a reasonable chance of being selected for promotion as defined by the glossary definition of "material error" in Army Regulation 135-155.  This conclusion is supported by the fact that he was not selected in 2005 or 2006 even after the report was in his file.

11.  The mere lack of an OER in an individual's file at the time his or her file is reviewed by a mandatory selection board does not in and of itself create an error or injustice which warrants promotion reconsideration.  Rather two issues must be addressed, that being whether the individual could have exercised reasonable diligence to correct the error prior to the convening date of the Board and, if not, was the missing OER sufficient enough to have given the officer a reasonable chance of promotion selection.  In this case, the Board finds that neither requirement has been met and, as such, promotion reconsideration is not warranted in the applicant's case.

12.  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 the aforementioned requirement.

13.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  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.



      ____________x_____________
                 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)                                         AR20090004278





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004278



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1