IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090017475 


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 a special selection board to reconsider him for promotion to colonel in the Army Reserve.

2.  The applicant states, in effect, that he is more qualified than many of the officers recommended for promotion to colonel by the Calendar Year (CY) 2009 Army Reserve Colonel Army Promotion List (APL).  He states that he is best qualified for promotion based upon his demonstrated performance and experience.  He states the areas that typically determine a best-qualified candidate for selection to colonel include performance, attendance at senior service college, advanced education, battalion command or its equivalency, and deployment.

3.  In addition, the applicant states that because of his basic branch, Chemical Corps, he is the victim of discrimination.  He states, "I am a FM (force management) division chief and all predecessors in this position were selected for promotion to O6 . . . I am the first Chemical officer in this position and the first non-selected for colonel."  He also reviewed the last two colonel APL Active Guard Reserve (AGR) promotion lists and found no chemical officers were selected for promotion.  In his review, the selection board favored logistics and civil affairs officers with 22 out of 46 officers in these disciplines selected for promotion.

4.  The applicant provides the following documents in support of his application:

	a.  Excel spreadsheet, prepared by the Office of the Chief, Army Reserve (OCAR) Senior Leader Development Office, containing by name the AGR officers who were non-select to colonel, undated;

	b.  Excel spreadsheet, prepared by the OCAR, Senior Leader Development Office, containing by name the AGR officers selected for promotion to colonel, undated; 

	c.  CY 2009 Army Reserve Component AGR Colonel Selection List (as identified by applicant), undated;

	d.  CY 2007 Army Reserve Component AGR Colonel Selection List (as identified by the applicant), undated; 

	e.  the applicant's officer record brief, dated 12 January 2009; and 

	f.  four Officer Evaluation Reports (OER) with through dates of 30 June 2006, 30 June 2007, 30 June 2008, and 11 December 2008.

CONSIDERATION OF EVIDENCE:

1.  At the time of application, the applicant is a lieutenant colonel serving on active duty as an AGR officer in the Army Reserve with a date of rank to lieutenant colonel of 26 January 2004.  The applicant's basic branch is Chemical Corps.  

2.  The applicant's promotion record was reviewed and considered by the CY 2008 Army Reserve Component Colonel Selection Board.  He was not selected for promotion.  The document to support this statement is from the Chief, Office of Promotions, U.S. Army Human Resources Command St. Louis, MO (HRC-STL), dated 10 July 2008.  This was his first consideration for promotion to colonel. 

3.  On 11 March 2009, the CY 2009 Department of the Army (DA) Reserve Components Colonel Selection Board convened.  On 6 July 2009, the results of this promotion board were approved and the Senate confirmed this list on 25 September 2009.  This promotion board reviewed the applicant's promotion file and he was not selected for promotion.  

4.  In the processing of this case an advisory opinion was obtained from HRC-STL.  In this opinion, the chief of the Special Actions Branch stated the applicant's promotion board file was completed and certified by the applicant on 3 March 2009.  The applicant did not present information or documents that would be the basis for reconsideration by a DA Special Selection Board for there were no material errors.  He concluded by recommending the applicant's application be denied.  

5.  By a rebuttal statement, dated 16 March 2010, the applicant states HRC-STL ignored the facts he presented in his application.  The applicant contends that the instructions to the promotion board were to pick the best qualified.  By his analysis, he is more qualified than many officers selected for promotion to colonel.  Additionally, he contends that the promotion board promoted by branch with floors and ceilings assigned per branch favoring the logistics and civil affairs branches.  He concludes by requesting a special selection board to correct these errors.

6.  In support of his application, the applicant provided from OCAR's Senior Leader Development Office at the Office of the Chief of Army Reserve detailed spreadsheets showing in his estimation that he is best qualified based on having a greater number of above center of mass OERs.  With this data he was provided, he compared his OER senior rater profiles to that of each officer selected for promotion, specifically identifying those officers that he assessed were not best qualified based on senior rater profile comparisons.  Additionally, he compared himself to all promotion selectees based on a profile that included completion of senior service college, completion of a master's degree, overseas deployment, and completion of battalion command or equivalent assignments.  He states he is best qualified for he meets three out of four of the criteria with 16 promotion selectees having a lower profile.  

7.  The applicant further states that he was discriminated against because of his Chemical Corps basic branch officer area of concentration (AOC).  He identifies two officers by name who previously held the specific manning position he currently occupies stating they were both selected by previous colonel promotion boards.  He asserts that the position he occupies is the defining point in their selection for promotion.  As he is a chemical officer, and they were not, he concludes he was not selected because of his AOC affiliation.  Additionally, he states the last two colonel boards did not select officers with a chemical AOC.  The CY 2009 board selected 22 officers with logistics or civil affairs AOC out of the 46 officers selected.  

8.  To show the Board he is best qualified, he provided four OERs for its review and consideration.  



9.  References:

	a.  Title 10, U.S. Code, section 14101 pertains to the convening of promotion selection boards based on the needs of the respective Services;

	b.  Title 10, U.S. Code, section 14104 states that the proceedings of a selection board convened under section 14101 of this title may not be disclosed to any person not a member of the promotion board.  Additionally, the discussions and deliberations of a promotion selection board are immune from legal process; may not be admitted as evidence; and may not be used for any purpose in any action, suit or judicial or administrative proceeding without the consent of the Secretary concerned; 

	c.  Title 10, U.S. Code, section 14108 states a promotion board shall recommend for promotion to the next higher grade officers it considers best qualified for promotion within each competitive category considered by the board with the board giving due consideration to the needs of the armed force concerned for officers with particular skill sets.  To be recommended for promotion, an officer board must recommend an officer by the majority of the members of the board, a majority of the board must find that the officer is fully qualified for promotion, and that the board finds the officer is among the best qualified for promotion to meet the needs of the armed force concerned; 

	d.  Department of Defense Instruction (DODI) 1320.14 (Commissioned Officer Promotion Program Procedures), dated 24 September 1996, implements the policy, assigns responsibilities, and prescribes procedures for administering the officer promotion program in the Department of Defense to include the Reserve component under the Reserve Officer Personnel Management Act.  The Secretaries of the Military Departments shall issue written instructions to promotion selection boards.  Instructions shall include, but are not limited to, the following:

		(1)  guidelines to ensure the consideration of all eligible officers without prejudice or partiality;

		(2)  the maximum number of officers that the board may recommend for promotion to the next higher grade in each competitive category based on the validated requirements needed to accomplish mission objectives, estimated number of officers needed to fill vacancies, and the number of officers authorized to serve on active duty or in an active status per grade;

		(3)  information or guidelines on the needs of the Service for officers with particular skills to include the need for either a minimum number or a maximum number of officers with a particular skill in a competitive category;

	e.  Department of Defense Instruction (DODI) 1320.14 provides that the proceedings of the board may not be disclosed to any person not a board member or board recorder, only the recommendations of the promotion board may be disclosed; and 

	f.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of the U.S. Army Reserve.  Officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate.  Special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers who were wrongly not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards.  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records: 
	
		(1)  Through error, were not submitted to a mandatory promotion selection board for consideration; or

		(2)  Contained a material error when reviewed by the mandatory selection board (a material error is one or more errors of such a nature that it may have caused an officer's nonselection by a promotion board, such that if the errors had been corrected at the time the individual was considered a reasonable chance would have resulted in the officer being recommended for promotion). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not selected for promotion to colonel because he has a chemical AOC and not a logistics or civil affairs AOC that the promotion board seemed to favor.  Further, with the support of statistical data he states he should be considered best qualified for he met more of the criteria (education both military and civilian, deployment, and leadership positions) than members who were selected by the CY 2009 colonel APL board.  He claims the instructions to this promotion board were, in effect, discriminatory.  Therefore, his officer promotion file should be sent to a special selection board.
2.  While the applicant makes a strong statistical argument that officers selected for promotion by the CY 2009 promotion board had inferior records, the U.S Code does not support his argument.  By law, promotion board proceedings and deliberations may not be disclosed to any person not a member of the board when a promotion board is convened under section 14101 of Title 10.  

3.  In view of this law incorporated into policy guidance published by DOD and Department of the Army, the applicant's contentions are unfounded.  While he shows to members of the Board, through statistical interpretation of known data points that his promotion file is superior to others favorably recommended for promotion, his assumptions have no merit.  Only members of the promotion board know the subjective reasons why one promotion candidate is best qualified.  U.S. Code protects promotion boards and their ensuing proceedings and deliberations. 

4.  As the applicant he did not provide evidence to show a material error existed in his promotion file that was presented to the promotion board, there is no justification to present his promotion file before a Special Selection Board.  

5.  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 that requirement.

6.  In view of the foregoing, there is insufficient basis for a special selection board to review the applicant's promotion file. 

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)                                         AR20090017475





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ABCMR Record of Proceedings (cont)                                         AR20090017475



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