IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090012231 


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 promotion to colonel and subsequent retirement in that rank.  In the alternative he requests Special Selection Board (SSB) consideration for promotion to colonel.

2.  The applicant states the Deputy Chief of Staff for Personnel (DCSPER) memorandum, dated 24 January 2002, that denied his appeal of two Officer Evaluation Reports (OERs) is derogatory information and was erroneously filed in the performance section of his official military files (OMPF).  He states this constitutes a material error.  He states he believes his non-selection for promotion to colonel was due to the OER appeal correspondence being filed in the performance section of his OMPF.  

3.  The applicant states he was not officially notified by the U.S. Army Human Resources Command, St Louis, MO (HRC-STL) of non-selection for promotion by the 2008 Colonel, Judge Advocate General (JAG) Corps, Department of the Army (DA) Reserve Component Selection Boards.

4.  The applicant provides copies of 23 pages from his OMPF, 3 pages from an HRC-STL website, an extract from Army Regulation 135-155, an index of documents that are in his OMPF in iPERMS (integrated Personnel Electronic Records Management System), and his OER appeal file.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned a second lieutenant in the U.S. Army Reserve on 20 July 1983.  He served on active duty from 30 September 1983 to 30 September 1992 and was assigned Area of Concentration 15B (Aviation, Combined Arms Operations).  On 2 February 1998, he accepted an appointment in the Judge Advocate General Corps in the rank of major.

3.  On 10 May 1999, the applicant appealed the OERs he received from his senior rater for the periods 14 May 1996 to 13 May 1997 and 14 May 1997 to 
20 January 1998.

4.  On 24 January 2002, the DCSPER denied the applicant's appeal and stated the evidence did not justify altering or withdrawing the above OER's.  The DCSPER directed that the appeal correspondence be filed in the restricted section of the applicant's OMPF.

5.  The DCSPER letter, dated 24 January 2002, was filed in the performance section of his OMPF.

6.  On 19 March 2002, the applicant was promoted to lieutenant colonel.

7.  ABCMR Record of Proceedings Docket Number AR2003086044, dated 22 May 2003, approved the applicant's request for removal of the comments in:

* Part VIIa - Intermediate Rater of his OER for the period 14 May 1996 through 13 May 1997
* Parts VIIa and VIIb - Senior Rater of his OER for the period 14 May 1997 through 20 January 1998

8.  The ABCMR Record of Proceedings Docket Number AR2003086044 is not filed in the applicant's OMPF.

9.  The modified OERs were filed in the performance section of the applicant's OMPF on iPERMS on 20 July and 24 August 2003.

10.  On 25 August 2005, the applicant was notified he had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60.

11.  The applicant's record was considered but he was not selected by the Colonel, JAG Corps, Department of the Army (DA) Reserve Component Selection Boards that convened 7-11 August 2006 and 10-14 March 2008.  A board was not convened in 2007.

12.  On 30 November 2008, the applicant was transferred to the Retired Reserve.

13.  An electronic mail (e-mail) from the Office of the Inspector General, dated 
10 December 2008, confirmed the applicant's request for removal the DCSPER OER appeal correspondence from the performance section of his OMPF to the restricted section was completed on 28 November 2008 and confirmed by an iPERMS technician on 10 December 2008.

14.  On 24 February 2009, the applicant submitted a request to HRC-STL for reconsideration for promotion based on the criteria for the 2006 and 2008 Colonel JAG Corps, Department of the Army Reserve Component Selection Boards.  

15.  On 19 April 2009, DA Promotions Branch at HRC-STL denied the applicant's request for an SSB.  HRC stated the archived 2006 and 2008 board consideration files revealed all critical elements were present in the board consideration file.  HRC stated the applicant was educationally qualified and the two OERs as modified by the ABCMR were in the file and his files were considered complete.  However, the Branch did not indicate whether the DCSPER denial of his appeal of his OERS was in the performance section or the restricted section of his OMPF when forwarded to the 2006 and 2008 selection boards.

16.  In the processing of this case an advisory opinion, dated 4 December 2009, was received from the Special Actions Branch, DA Promotions, HRC-STL recommending denial of the applicant's request.  That office stated promotion consideration file (PCF) documents are electronically pulled from the performance portion of the Soldier's OMPF and contains all officer evaluation reports, education and training, commendatory date, and disciplinary documents.  A review of the applicant's PCF files revealed the two OERs ordered modified by the ABCMR were contained in the PCF and the file was considered complete.  However, the Branch did not address the issue of the DCSPER denial of the applicant's appeal of his OERs.

17.  In his rebuttal, dated 9 January 2010, to the HRC-STL opinion the applicant states HRC-STL refuses to admit the promotion boards did in fact review the derogatory information contained in the OER appeal because the correspondence was erroneously filed in the performance section of his OMPF.  He states the DCSPER denial of the OER appeal being filed in the performance section constituted a material error.  He again states he was not notified of the 2008 board results.  He states the ABCMR decision granting relief concerning his OERs was deleted from his OMPF.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies a PCF for each eligible officer will be provided to selection boards.  The PCF includes the officer's performance portion of the OMPF.

19.  Army Regulation 135-155 specifies that promotion consideration or reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error would consist of an adverse document, required to be removed from an officer's OMPF as of the convening date of the board, seen by the board.

20.  Army Regulation 135-155 provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

21.  Army Regulation 135-155, effective 13 July 2004, states the Office of Promotions at HRC notifies area commanders, the Chief National Guard Bureau (CNGB), adjutants general, and HRC-STL of mandatory selection board results.  The area commanders (except HRC-STL), CNGB, and adjutants general issue and distribute mandatory selection board notification memorandums to officers who are not recommended for promotion.

22.  Army Regulation 600-8-104 (Military Personnel Information management/Records) states in Table 2-1 (Composition of the OMPF) states correspondence for ABCMR approvals will be filed only by the direction of the ABCMR.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not selected for promotion due to derogatory information contained in the performance section of his OMPF.  He contends he was not notified by HRC-STL of non-selection for promotion by the 2008 board.  He contends the ABCMR proceedings granting him relief for two OERs was deleted from his OMPF.

2.  Army Regulation 135-155 specifically states HRC-STL does not send mandatory selection board notification memoranda of non-selection to officers not recommended for promotion.  The applicant should have been notified by his area commander through his unit commander.

3.  ABCMR Docket Number AR2003086044, dated 22 May 2003, did not direct the proceedings to be filed in the applicant's OMPF.  Therefore, these proceedings were not deleted; they were never filed in the applicant's OMPF.

4.  There is no evidence to support promoting the applicant to the rank of colonel without having been selected by a Colonel, JAG, DA Reserve Component Section Board or a favorable consideration by an SSB.

5.  The DSCPER specifically stated the appeal correspondence was to be filed in the applicant's restricted section of his OMPF.  Therefore, it is reasonable to presume the DSCPER did not intend for future promotion boards to view this correspondence.

6.  The Office of the Inspector General confirmed the DSCPER letter of denial was finally removed from the applicant's performance section of his OMPF on 
10 December 2008.  Therefore, in the absence of evidence to the contrary, it is apparent the letter was viewed by both the 2006 and the 2008 Colonel, JAG Corps, DA Reserve Component Selection Boards.  This letter was erroneously filed in the applicant's performance section of his OMPF and was not intended to be viewed by a selection board.  This constitutes material error.

7.  In view of the above, notwithstanding the opinion from the Special Actions Branch, HRC-STL, it is appropriate to place the applicant's records before an SSB for promotion consideration under both the 2006 and 2008 Colonel, JAG Corps, Department of the Army (DA) Reserve Component Selection Boards criteria.



8.  If he is selected for promotion by an SSB, his promotion effective date and date of rank should be established as if he had been originally selected by the 2006 or 2008 board as appropriate, and he should be provided all back pay and allowances due as a result.  If not selected, he should be so notified.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 before an SSB for promotion consideration under both the 2006 and the 2008 Colonel, JAG Corps, DA Reserve Component Selection Boards criteria.

	b.  If he is selected for promotion by an SSB, his promotion effective date and date of rank should be established as if he had been originally selected by the 2006 or the 2008 board as appropriate, and he should be provided all back pay and allowances due as a result.  

	c.  If not selected, he should be so notified.











2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion to colonel and retirement as a colonel without being selected by a promotion board.  



      __________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)                                         AR20090012231



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ABCMR Record of Proceedings (cont)                                         AR20090012231



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