IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090008103 


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 the senior rater profile on his officer evaluation report (OER) for the period covering 23 May 2005 to 22 May 2006 be corrected from a center of mass (COM) placement to an above center of mass (ACOM) placement.  In the alternative, he requests that the OER be masked.

2.  The applicant also requests that he be reconsidered for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB).

3.  The applicant states that he believes that the Officer Special Review Board (OSRB) did not thoroughly examine his appeal.  Instead, he was given a "pro forma" (to facilitate the legal process, to move matters along) review by the OSRB.  He requests that the ABCMR do a "de novo" review (to consider anew) of his appeal and not attach any weight to the OSRB review of his packet.

4.  The applicant then provides a number of contentions which all pertain to the OSRB's consideration of his appeal.  Those include:

   a.  The OSRB stating that he requested that his placement in the senior rater profile be changed from COM to ACOM when he also asked, in the alternative, that the contested OER be removed or masked.
   
   b.  The OSRB stating that that his request for promotion reconsideration would be addressed in a separate action which never occurred.
   
   c.  the OSRB's statement that the senior rater's (SR's) admission that he did not follow regulatory guidance to assess the applicant's potential against his contemporaries does not invalidate the OER, is factually false.  
   
   d.  the OSRB's statement that the SR's statement in support of the applicant's appeal was made more than 2 1/2 years after the OER was completed is "near proof" that the OSRB was looking for ways to summarily deny his appeal since it was actually "a mere" 17 months.
   
   e.  the OSRB implies the SR is either a liar or incompetent in its statement that the SR's statement falls into the category of retrospective thinking despite his statement to the contrary.  The applicant adds that "it is disappointing that the [OSRB], which apparently conducted a cursory review of my file, felt quite free to assign malintent to a colonel who has served the Army for more than 25 years."
   
   f.  the OSRB's statement that the SR did not make a statement until he was approached by the applicant after the applicant was passed over for promotion is implying unreasonable and "nefarious" intent to his SR's desire to simply correct his "errant" rating after being apprised of new information.  

5.  The applicant provides documents which he lists in a table of contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was commissioned as a second lieutenant on 31 May 1990 and entered on active duty on 30 September 1990.  On 20 November 2001, the applicant was commissioned as a major, Judge Advocate General Corps (JAGC).  

2.  The applicant's OERs as a JAGC officer show that he was rated COM for the period ending 31 May 2002; COM for the period ending 22 May 2004; and ACOM for the period ending 22 May 2005.

3.  On 29 June 2006, the applicant was given an OER for the period covering 23 May 2005 to 22 May 2006.  During this period the applicant served as the officer in charge of a law center.  In this report:

	a.  his senior rater evaluated him as "Outstanding Performance Must Promote" and writes nothing but laudatory comments on the applicant's performance during the rating period.

	b.  his SR, the Commander, 4th Brigade, 1st Infantry Division, evaluated him as "Best Qualified" and wrote nothing but laudatory comments on the applicant's performance during the rating period.  The SR's comments included "Outstanding performance by the best Judge Advocate I have worked with in 25 years of service . . . Promote below the zone to Lieutenant Colonel.  Destined for senior [Judge Advocate] leadership in our Army."  The applicant's SR placed the applicant COM in his SR profile.

3.  The applicant's OERs show that he was rated ACOM for the period ending 30 May 2008, and COM for the period ending 6 March 2009.

4.  On 17 March 2008, the applicant submitted an appeal to his OER for the period ending 22 May 2006.  He also requested reconsideration for promotion by the Fiscal Year (FY) 2006 LTC JA promotion board.  Later in this memorandum he requested that his senior rater profile be corrected to an ACOM placement or, in the alternative, that the SR profile on the report be removed or masked.  He based his appeal on his improper placement as COM in his SR's profile and the fact that another OER considered by the promotion board which had a stamp on it which stated "FY01 Promotion."

5.  The applicant submitted three statements in support of his appeal.  One of these statements was from his SR who stated that he "knew my evaluation would be viewed by an upcoming promotion board.  My language reflects the fact that [the applicant] was in fact the best JAG officer that I had ever worked with and an outstanding officer in general.  My blocking, however, does not.  The reason for the inconsistency is the mistaken belief that JAG officers underwent a significantly different promotion system.  In fact, I believed my language was far more important to a special branch board so I did not compare [the applicant] relative to his contemporaries when blocking him . . . Consequently, I should have evaluated [the applicant] in light of all the majors in my command.  As I stated earlier, that would clearly put him in the above center of mass category . . . My support of [the applicant's] appeal is not based on an after-the-fact desire to change his rating because he was not selected for promotion.  It is an attempt to change the senior rating block to make it consistent with the senior rater language and the overall evaluation of [the applicant's] performance."

6.  On 11 September 2008, the OSRB considered the applicant's appeal.  The OSRB concluded that the regulation clearly places the responsibility on the SR to evaluate the rated officer's potential relative to his contemporaries.  The SR stated that he failed to do this correctly.  He also did not explain how he had expected to properly rate the applicant in accordance with the regulatory guidance without providing such an assessment of the applicant's potential vis a vis his contemporaries.  The OSRB denied the appeal, stating that the SR's statement was clearly retrospective thinking based on the elapsed time between the applicant being given the OER and the date he submitted his statement, as well as the fact that his statement was made after the applicant had been passed over for promotion.

7.  Army Regulation 623–3 (Personnel Evaluation Reporting System), paragraph 2–15b(6), states that a SR must evaluate the rated Soldier’s potential relative to their contemporaries.  Paragraph 3-12a(3) states that senior raters must maintain an ACOM percentage by grade of 49 percent or less.

8.  Army Regulation 600–8–29, Personnel—General, Officer, paragraph 7–2, Purpose of boards, states that:

   a. The Special Selection Boards (SSBs) may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army (HQDA) discovers one or more of the following:
   
   (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)).

   (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

   (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

9.  Army Regulation 600–8–29, paragraph 7–3, Cases not considered, states that an officer will not be considered or reconsidered for promotion by an SSB when the following occurs:

   a. The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army (SA) 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board.

   b. An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or Official Military Personnel File (OMPF). The ORB is a summary document of information generally available elsewhere in the officer’s record.  It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

DISCUSSION AND CONCLUSIONS:

1.  The core issue to be considered by the Board is whether the contested OER should be altered, be it by changing the SR profile placement, removing the senior rater profile, or by masking the SR profile on the OER.  There is no basis for granting the applicant promotion reconsideration if this portion of his request is disapproved.  

2.  In this regard, the sole issue is whether the SR made an error in his placement of the applicant in his SR profile.

3.  The SR stated that he made an error in rating the applicant COM in his SR profile because he was not aware that he should compare the applicant relative to his contemporaries.

4.  Since the regulation which governs the preparation of OERs does not in any way imply that a special branch officer is treated any differently than officers in any other branch of service, it is hard to believe that the SR, a brigade commander, believed that he was not comparing the applicant to his peers when he placed the applicant in the COM on his SR profile.  

5.  The SR, a brigade commander, had the deputy battalion commanders, the primary brigade staff, and the chaplain to senior rate (as majors) and could only place 49 percent or less of these officer ACOM.  The SR has not stated which officer he would have moved to COM in order to elevate the applicant to ACOM.

6.  While every OER stands alone, the applicant's OER history since he was commissioned in the JAG Corps is four COM and two ACOM reports.  As such, a COM placement is not an aberration from his OER history.

7.  As such, the preponderance of evidence shows that the applicant was properly rated COM in his SR's profile and there is no reason to change it to ACOM or to mask the SR profile.

8.  As for the applicant's promotion, the only other contention made by the applicant was the fact that an OER considered by the promotion board had a stamp on it which stated "FY01 Promotion."  Whether or not this stamp was improperly reviewed by the promotion board would appear to be immaterial to this case.  The stamp was only reflecting the applicant's 20 November 2001 commission as a major, Judge Advocate General Corps.  Therefore, it was not derogatory or prejudicial.  As such, there is no basis for granting the applicant promotion reconsideration.

9.  The other issues raised by the applicant have been carefully considered.  However, none of these issues, if accepted, would invalidate the applicant's placement on his SR profile or, therefore, result in a promotion reconsideration.

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)                                         AR20090000548



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ABCMR Record of Proceedings (cont)                                         AR20090008103



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