IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090011987 


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, reconsideration for promotion to colonel (COL) by a Special Selection Board (SSB).

2.  The applicant states, in effect, that his military record lacked material information that greatly impacted his non-selection for promotion by the fiscal year (FY) 2008 COL Promotion Selection Board (PSB).  He states that pursuant to the Chief of Staff of the Army (CSA) policy announcement in Military Personnel (MILPER) Message Number 08-168, dated 20 June 2008, he submitted a request for centralized selection list (CSL) credit on 25 June 2008, based his prior service as a designated transitional team (TT) commander.  He indicates that although the Army Human Resources Command (AHRC) received his request while the PSB in question remained in session on 17 July 2008, he was not granted CSL credit until 17 October 2008.  He affirms that he sought CSL credit in a timely manner; however, the timing of the new AHRC policy guidance and staffing process created circumstances beyond his control.

3.  The applicant provides the indexed list of documents shown on his application in support of his request.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after having prior commissioned service in the United States Army Reserve (USAR), on 29 April 1989 he was ordered to active duty for a period of three years as an obligated volunteer officer, in the rank of first lieutenant (1LT).  He was promoted to captain (CPT) on 1 June 1991, to major (MAJ) on 1 March 1998, and to lieutenant colonel (LTC) on 1 December 2003.

2.  The applicant’s Official Military Personnel File (OMPF) contains Officer Evaluation Reports (OERs) covering the periods 30 May 2006 through 29 May 2007 and 30 May 2007 through 15 January 2008.  In both these reports, he was evaluated as a Brigade Senior Mentor for a 3100 man Afghan National Army Infantry Brigade, in Zabol Province, Afghanistan, during Operation Enduring Freedom (OEF).

3.  On 20 June 2008, AHRC issued MILPER Message Number 08-168, Subject:  Transition Teams and Provincial Reconstruction Teams-Implementation Plans for Adding Designated Positions to the CSL and Key Developmental Credit for Majors, announced new policy and procedures regarding service in Transition Teams (TT) and Provincial Reconstruction Teams (PRT) at the MAJ and LTC rank as directed by the CSA.  It further stated, in pertinent part, that AHRC would award CSL credit for LTCs serving specifically in designated TT positions that had direct responsibility for a team.  The CSA approved creating a new CSL sub-category called “Combat Arms (O2A) Operations" and renamed these team chief positions to reflect "Commander Transition Team."  These positions were scheduled to be effective on the Fiscal Year 2010 CSL board, which was scheduled to meet on 3 September 2008.

4.  On 25, 26, and 27 June 2008, members of the applicant's chain of command, two COLs and a major general (MG), issued memoranda recommending the applicant receive constructive CSL credit for his tour as the TT Brigade Commander of 2nd Brigade, 205th Corps, Afghan Regional Security Integration Command (ARSIC).

5.  On 8 July 2008, the FY 2008 COL PSB convened.  It recessed on or about 22 July 2008.

6.  On 17 October 2008, the President, CSL Review Board, AHRC, approved the applicant’s request for constructive CSL credit.

7.  On 12 November 2008, based on having received constructive CSL credit, the applicant submitted a request to AHRC, seeking promotion reconsideration to COL by an SSB.

8.  On 18 November 2008, the applicant submitted an additional request via Electronic Mail (email) to the Chief, Evaluation, Selection and Promotion Division, AHRC, for promotion reconsideration by an SSB.  In it he indicated an appropriate official denied his prior request stating that a CSL notation in the “remarks” section of his officer record brief (ORB) was not significant and therefore did not constitute a material error.

9.  On 19 November 2008, the Chief, Evaluation, Selection and Promotion Division, AHRC, denied the applicant’s request for an SSB.  The Chief stated that the absence of CSL credit did not constitute a material error to change his file.

10.  On 9 January 2009, the Commander, 197th Infantry Brigade (one of the applicant’s commanders), submitted an email to the Chief, Evaluation, Selection and Promotion Division AHRC, to solicit his assistance prior to directing an appeal to the commanding general (CG), AHRC on behalf of the applicant.

11.  On 12 January 2009, the Chief, Evaluation, Selection and Promotion Division, AHRC, responded to the commander’s request.  In his synopsis of the applicant’s case, the Chief indicated the FY 2008 COL PSB convened on 8 July 2008, recessed 22 July 2008, and that the cut-off date for board information to be received was 27 June 2008.  The applicant’s request for CSL credit was received after the cutoff date and more than a week after the board convened on 17 July 2008.  This official further indicated that there were no provisions for grandfathering CSL credit.

12.  On 26 May 2009, in response to the applicant’s request to the CSA for an SSB, the Director, Military Personnel Management, G-1, provided that upon reviewing all of the evidence in his case, it found the AHRC’s determination to disapprove his request for an SSB was made in accordance with statutory, regulatory, and policy guidance.  The Director further stated that under current policy guidance the awarding of CSL constructive credit after a promotion board convenes does not constitute material information for SSB purposes and that a countless number of officers would be disadvantaged if only one were allowed to add documentation to their file after the established cutoff dates or convening of the board.


13.  The Director further indicated that the promotion board received instructions in the Memorandum of Instruction on the importance of service on TTs and PRTs in the current environment and foreseeable future to provide the appropriate consideration of these experiences in the overall evaluation of each officer’s record.  The applicant was informed of his option to apply to this Board for relief.

14.  On 2 June 2009, the CG, Headquarters United States Army Infantry Center, submitted a memorandum to the CG, AHRC, in support of the applicant's request.  In it he agrees that the applicant did not meet the cutoff dates; however, he indicates his belief is that the Chief, Evaluation, Selection and Promotion Division, AHRC, interpretation of policy in terms of material changes is completely off the mark for a combat arms officer and is also inconsistent with the CSA’s intent to ensure that those who lead TTs are given the credit that they deserve.  He insists that the applicant’s CSL credit is materially significant to his file and constitutes grounds to convene an SSB.

15.  The CG states the applicant should have gone before his primary zone promotion board as a former CSL battalion level commander, and one who commanded in combat.  He also states that this did not happen because of the late release of the CSAs Sends message, dated 17 June 2008, only 10 days before the cutoff date to submit information for promotion board and the lengthy staff process involved.

16.  On 7 July 2009, an infantry branch assignment officer, AHRC, responded to the applicant’s request to obtain the previous percentage of infantry officers who were promoted in the primary zone both with and without former battalion commander (FBC) experience.  The branch officer provided that in the past 
5 years, approximately two non FBCs made O-6 and about five did not and thus, the trend is that you need to be a battalion commander in order to make O-6 in the infantry branch.

17.  On 6 November 2009, the CG, International Security Assistance Force Joint Command, Kabul, Afghanistan, a lieutenant general, submitted a memorandum to the ABCMR, endorsing the applicant’s request for an SSB.  He states that through no fault of the applicant’s, his promotion board file lacked an important piece of information which materially affected his consideration for promotion.  The CG essentially supports the applicant’s request for an SSB and restates the argument used as the basis for the request as previously mentioned by the other commanders who support the applicant in this case.


18.  Army Regulation 600-8-29 prescribes the Army’s officer promotion policy.  Paragraph 1-33 provides guidance on information provided to boards.  Paragraph 1-33c provides guidance on communications with boards and states, in pertinent part, that officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration.  Written memorandums sent to a promotion selection board will be considered if received not later than the date the board convenes. 

19.  Chapter 7 of the same regulation provides guidance on SSBs.  It states that SSBs are convened to consider or reconsider commissioned or warrant officers for promotion when DA discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  The regulation further provides examples of cases that do not qualify for reconsideration by a SSB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted an SSB based on his not receiving CSL credit, which he was eligible for and requested on 25 June 2008, was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms that the applicant’s request for CSL credit was not received by the appropriate AHRC officials until after the convening date of the FY2008 COL PSB and that he was granted this credit on 17 October 2008. Further, the applicant's ORB that was reviewed by the promotion board properly documented his TT service, and the CSA guidance on credit for service in this position was transmitted to the promotion board.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  Further, as indicated in the G-1 DMPM response to the applicant's inquiry to the CSA, granting him a SSB would disadvantage a countless number of officers if only he were allowed to add documentation to his file after the established cutoff dates or convening of the board.  As a result, it would not serve the interest of all those who served in TTs and who faced similar circumstances as the applicant to grant the requested relief in this case.


4.  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

____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)                                         AR20090011987



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1