IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090020848 


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 submits his request through counsel.

2.  The applicant defers his statement to counsel.

3.  The applicant provides additional documentary evidence through counsel in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following relief:

	a.  the applicant's DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)) for the period from 1 March 1993 through 27 June 1993 (hereafter referred to as the contested OER) be voided;

	b.  the applicant's relief from command be voided;

	c.  the applicant's memoranda of notification of non-selection for promotion to CPT, dated 1 March 1996 and 15 November 1994, be voided;

	d.  the applicant's consideration for promotion to CPT by a Special Selection Board (SSB);

	e.  the applicant's direct promotion to CPT with an effective date of promotion as of the date he otherwise would have been promoted but for his non-selection;

	f.  award of back pay and allowances from the date of his promotion to the present; and

	g.  payment for service he would have rendered from the date of his release from the Texas ARNG until the date he was released from the USAR Individual Ready Reserve (IRR).

2.  Counsel provides a chronicle of the applicant's previous cases to this Board and recounts a brief history of the applicant's military service.  He also describes the functions of the ABCMR as a forum of adjudicating claims from members who allege errors in their military records.  He contends the ABCMR improperly processes cases.  

3.  Counsel also argues the following:

	a.  The applicant's OER was based on his relief from command.  If the relief from command was unlawful, the referred OER must be declared null and void.  The relief from command did not comply with Army policy or applicable regulations.  Army Regulation 600-20 (Command Policy) establishes command policy for the Active Army, USAR, and ARNG.  Chapter 7 addresses relief for cause.  By regulation, although any commander may temporarily suspend a subordinate from command, final action will not be taken until a written approval is obtained from the first general officer (GO) in the officer's chain of command.  Any action purporting to finally relieve an officer from any command position prior to the required written approval is considered a temporary suspension.   The applicant was relieved from his command for cause by his Battalion Executive Officer (XO).  No GO in the applicant's chain of command approved the relief in writing, which makes his relief only a temporary suspension from assigned duties.  Because the relief from command was unlawful, the referred OER reflecting the relief is null and void.

	b.  After his unlawful separation from the Texas ARNG and placement in the IRR, the applicant was twice considered for promotion to CPT and not selected.  Given the unlawful relief for cause OER in his promotion file, it was no surprise that he would not be selected.  Because those reports are unlawful and must be voided, the legal consequence is that the applicant's non-selection for promotion is null and void.  Non-selection based on erroneous records must be voided and promotion consideration must be granted.

	c.  A second consequence is that the applicant did not lose his status as a commissioned officer.  He previously asked the Board to award him back pay for the difference between his actual service as a noncommissioned officer and what he should have received as a commissioned officer.
	d.  The Texas ARNG's failure to comply with law in relieving the applicant from command and issuing him the referred OER was a harmful error.  The Board determined that his separation from the Texas ARNG was unlawful, yet only awarded him service credit toward his retirement.  He should have also been awarded back pay for that period.  But for his unlawful separation, he would have continued to serve as a drilling member of the Texas ARNG and would have completed his required annual training.

4.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  a copy of the U.S. District Court for the District of Columbia, Civil Action Number 08-2084 (RMC), Joint Motion to Remand to the Agency for Further Proceedings, filed on 29 September 2009;

	b.  a copy of the U.S. District Court for the District of Columbia, Civil Action Number 08-2084 (RMC), Consent Motion for a Voluntary Remand to the Agency, filed on 20 February 2009;

	c.  a copy of U.S. District Court for the District of Columbia, Civil Action Number 08-cv-2084, Remand Action;

	d.  a listing of the ABCMR's functions, responsibilities, and operations, in the form of questions and answers;

	e.  a copy of the previously reviewed memorandum, dated 27 June 1983, subject:  OER Referral;

	f.  copies of the applicant's previously-reviewed OERs for the periods 1 March 1993 through 27 June 1993, 18 June 1988 through 17 June 1989, 4 November 1989 through 25 September 1990, 26 September 1990 through 22 April 1991, 23 April 1991 through 29 February 1992, and 1 March 1992 through 28 February 1993;

	g.  a copy of a previously-submitted and reviewed DA Form 4187 (Personnel Action), dated 28 June 1993;

	h.  a copy of the previously-submitted and reviewed U.S. Court of Claims decision, Doyle v. United States, 220 Ct. Cl. 285 (1979); and

	i.  a copy of the U.S. Court of Appeals for the Federal Circuit, Wagner v. United States, 365 F. 3d 1358 (decided 28 April 2004).


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR 20090004612 on 14 May 2009.

2.  The applicant's request for reinstatement as an officer in the Texas Army National Guard (ARNG) was considered and denied by the Army Board for Correction of Military Records (ABCMR) on 4 May 2006.  The applicant then requested reconsideration by the ABCMR on 7 August 2007.  His request for reinstatement was again denied.  Thereafter, the applicant made two additional requests for reconsideration which were denied without Board review on 18 March 2008 and 17 September 2008.  In each case, the applicant was advised to seek relief in a court of appropriate jurisdiction.

3.  On 20 February 2009, the Government filed a consent motion for a voluntary remand of the applicant's case to the ABCMR for further action.  On 25 February 2009, the U.S. District Court for the District of Columbia ordered the Government's motion for remand granted and the case be returned to the ABCMR for further consideration.

4.  On 14 May 2009, the Board reconsidered the applicant's case and determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommended that the State ARNG records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending Orders 142-92, issued by the Texas ARNG, dated 21 July 1993, to show the date of discharge as 15 May 1996 (the date he was discharged from the U.S. Army Reserve (USAR)) instead of 14 July 1993 and extending him Federal recognition as a first lieutenant (1LT) during this period;

	b.  awarding the applicant retirement points credit for the period 14 July 1993 to 15 May 1996 based on the average number of retirement points he earned in the 3 years prior to his discharge from the ARNG on 14 July 1993; and

	c.  having the Defense Finance and Accounting Service audit the applicant's pay account to determine if he is entitled to any pay and allowances as a result of this correction.

5.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommended denial of so much of the application that pertained to his reinstatement as a captain (CPT) in the ARNG; awarding him the differential between his current pay as a staff sergeant (SSG) and the pay of a CPT retroactive to 14 July 1993; awarding him all benefits, allowances, and entitlements he would have received at the rank of CPT from 14 July 1993 to the present; and awarding him credit for time served in the rank of CPT from 14 July 1993 to the present.

6.  With prior enlisted service in the U.S. Navy, U.S. Navy Reserve, and Washington ARNG, the applicant's records show he was appointed as a second lieutenant, Infantry, in the Texas ARNG on 18 June 1988 and was assigned to Company A, 3rd Battalion, 141st Infantry, Brownsville, TX, as a platoon leader.  He was reassigned on 3 December 1990 from his duties as a motor officer and assigned as the Company Executive Officer (XO) of Headquarters and Headquarters Company, 3rd Battalion, 141st Infantry.

7.  On 7 December 1990, the applicant was ordered to active duty in support of Operations Desert Shield/Desert Storm for a period of 180 days.  He was released from active duty to the control of his ARNG unit on 4 May 1991 (later amended to read 16 July 1991).  He was subsequently promoted to 1LT on 17 June 1991.

8.  On 27 June 1993, the applicant received a relief-for-cause OER for the period 1 March 1993 through 27 June 1993 while performing duties as Company XO.  This OER showed the following:

	a.  In Part IV (Performance Evaluation-Professionalism), his rater, a CPT, the Company Commander, rated his professional competence and assigned a "3" rating under "possesses capacity to acquire knowledge/grasp concepts"; a "2" rating under "motivates, challenges, and develops subordinates"; a "3" rating under "performs under physical and mental stress"; a "4" rating under "displays sound judgment"; a "2" rating under "seeks self-improvement"; a "3" rating under "is adaptable to changing situations"; and a "1" rating in the remaining eight areas.

	b.  In Part IVb (Professional Ethics), the supporting comments indicate that the applicant failed to adhere to the Battalion Commander's guidance for annual training in 1993, that after being relieved he continued to display unsound behavior, and that he failed to accept responsibility for personal decisions and actions.

	c.  In Part V (Performance and Potential Evaluation), the rater rated his performance as "usually exceeds requirements" with a "do not promote" rating under potential.  The supporting comments indicate that the applicant began to have difficulties with the chain of command on 16 June 1993 when he started yelling at the 1st Platoon Leader about a Soldier who had a lot of chigger bites.  He failed to adequately assess the situation before making accusations that upset members of the platoon.  On 19 June 1993, he took a weapon from a sleeping Soldier, dragged it through the mud, and then stuck the barrel in the mud.  He again failed to utilize the chain of command in solving a perceived problem and he failed to properly assess the situation.  The Soldier was on a sleep plan that the Platoon Leader had instituted for the platoon.  Had the applicant met with the chain of command before taking matters in his own hands, he would have been told what was happening in the platoon.  His perception of his actions is that he felt he had done nothing wrong and on 20 June 1993 he was relieved of his duties by the Battalion Commander.

	d.  In Part VI (Intermediate Rater Comments), his intermediate rater, a major, the Battalion XO, indicated that the applicant failed to grasp the significance of his actions.  He had not been able to acknowledge the gravity of his mistake or to learn from it.  He recommended that the applicant be separated from the Texas ARNG.

	e.  In Part VII (Senior Rater), the applicant's senior rater (SR), a lieutenant colonel (LTC), the Battalion Commander, placed the applicant in the bottom block of his SR profile and commented that he was disappointed with the recent performance of the applicant.  In garrison he exhibited good judgment; however, in a stressful extended field environment he exhibited significant judgment failures.  He tended to exhibit an inappropriate set of leadership values. 
He violated written policies about command climate and leadership and he refused informal and formal counseling about leadership.  The SR went on to state that he lacked confidence in the applicant's future potential and leadership style.  He did not recommend him for any tactical leadership position or further retention in the Texas ARNG whatsoever.

9.  The OER was considered adverse and as such was referred to the applicant. 
By memorandum, dated 27 June 1993, with a suspense of 12 July 1993, the Battalion XO notified the applicant that the OER was referred to him for acknowledgement under the provisions of paragraphs 4-27 and 5-28 of Army Regulation 623-105 (Officer Evaluation Reporting System) and that the specific reason for referral was his relief for cause.  He was also notified that he must acknowledge receipt and may provide comments if desired, and that any comments must be factual, concise, and limited to matters directly related to the evaluation on the referred report.

10.  There is no indication in the available records to show that the applicant responded to the issues in the referred report.  However, the OER indicates that there were four enclosures with the report, which may suggest he rebutted the report.

11.  The facts and circumstances of the administrative separation are not available for review with this case and the applicant has not provided such facts and circumstances.  However, the applicant's records contain a DA Form 4187, dated 28 June 1993, addressed from the applicant's Commander, through the Commanders of the 36th Brigade and 49th Armored Division, to The Adjutant General (TAG), State of Texas.  This DA Form 4187 is marked as a request that the applicant be separated from the Texas ARNG in accordance with paragraph 4, Texas ARNG Regulation 635-100 (Administrative Discharge of Officers and Warrant Officers), due to substandard performance of duty as reflected in his relief-for-cause OER.  Additionally, the DA Form 4187 indicates the following:

	a.  The Commander, 36th Brigade, lined through his address and placed his initials on 1 July 1993, indicating his concurrence.

	b.  The Commander, 49th Armored Division, also lined through his address and placed his initials on 9 July 1993, indicating his concurrence.

	c.  The DA Form 4187 is stamped with the TAG stamp, indicating receipt on 13 July 1993.

12.  On 21 July 1993, the Texas ARNG published Orders 142-92 directing the applicant be honorably discharged on 14 July 1993 and transferred to the USAR Control Group (Reinforcement, or Individual Ready Reserve (IRR)).  The authority on that order indicated that it was a vocal order of TAG of Texas under the provisions of paragraph 5a(3), National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition).  That order was subsequently amended on 5 April 1994, to reflect the authorization as paragraph 4, Texas ARNG Regulation 635-100.

13.  The applicant was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) showing he completed 5 years and 27 days of service during this period.  This form further shows the authority for separation as "paragraph 5a(3) of National Guard Regulation 635-100 Administrative Discharge."  Additionally, on 14 April 1994, an NGB Form 22a (Correction to NGB Form 22) further amended the authority for the discharge to read "paragraph 4 of Texas ARNG 635-100 Administrative Separations."

14.  Following his transfer to the USAR Control Group, the U.S. Total Army Personnel Command [now known as the U.S. Army Human Resources Command, or USAHRC), St. Louis, MO, notified the applicant by memorandum on 15 November 1994 that he was considered for promotion to CPT by the Reserve Components Selection Board (RCSB), but he was not selected.

15.  On 1 March 1996, USAHRC-St. Louis notified the applicant by memorandum that he was considered a second time for promotion to CPT by the RCSB, but he was not selected.  The memorandum further advised him that as a result of this second non-selection, he must be separated from the USAR and that his commander would advise him of the separation procedures and any options available to him by separate correspondence.  Accordingly, orders were published on 13 May 1996 honorably discharging him from the USAR effective 15 May 1996.

16.  There is evidence in the available records to suggest that the applicant may have appealed the adverse OER to the Officer Special Review Board (OSRB) in 2001.  In any event, the OER remains in his official military personnel file.

17.  On 25 March 2005, the applicant enlisted in the Texas ARNG for a period of 6 years in the rank/grade of SSG.  He was assigned to Company B, 1st Battalion, 141st Infantry.  He subsequently served in Kosovo from 15 September 2006 to 5 December 2006 and in Iraq from 3 September 2007 to 27 January 2008.

18.  On 24 July 2009, Texas ARNG published Orders 205-1025, amending Orders 142-92 issued on 21 July 1993 by the same headquarters, amending the effective date of the applicant's honorable discharge from the Texas ARNG from 14 July 1993 to 15 May 1996.  Additionally, on 4 November 2009 his Federal recognition was withdrawn due to his transfer to the USAR Control Group (Reinforcement) effective 15 May 1996 and he was awarded appropriate service credit toward non-regular retirement for the period 14 July 1993 to 15 May 1996.

19.  The applicant provided the following documentary evidence in support of his application:

	a.  a copy of a Texas Court of Appeals decision, Cole v. Texas ARNG, 909 S.W. 2d 535 (Tex. App. 1995).  In Cole, the appellant, a Texas ARNG LTC, was discharged for cause by TAG without benefit of a hearing.  Instead, he was discharged per "administrative regulation" with that administrative regulation being paragraph 4 of Texas ARNG Regulation 635-100 as in the applicant's case.  In Cole, the court noted that Texas Government Code, section 431.042(b)(5), stated, in pertinent part, that an officer could hold his position until age 64, unless earlier discharged or retired for "cause determined by a court-martial or efficiency board legally convened for that purpose."  Noting that TAG was not free to "create a particular power in himself…when that power has not been first delegated to him by statute," the court held that Texas ARNG Regulation 635-100 "must be construed and must operate consistently with the statute."  Thus, the failure to have Cole's case considered by a board rendered his discharge improper;

	b.  a copy of U.S. Courts of Appeals for the Federal Circuit, Wagner v. United States, 365 F. 3d 1358 (decided 28 April 2004).  In Wagner, the appellant, an officer of the USAR, was convicted by a court-martial in June 1995 and was sentenced to a forfeiture and reprimand but was not discharged.  In December 1996, an Army Active Duty Board (DAADB) recommended his release from the service on account of the court-martial.  The DAADB, however, was unaware that the appellant had 18 years of active service prior to the DAADB's decision.  He sought relief through the ABCMR and argued that his release was contrary to law, arbitrary, and capricious, with reinstatement and back pay and allowances.  The ABCMR denied his request.  The court ruled that he was not legally released from active duty due to the Army's failure to adhere to involuntary separation procedures;

	c.  a copy of the ABCMR's functions, responsibilities, and operations in the form of questions and answers; and

	d.  copies of the applicant's prior OERs specifically for the periods 1 March 1993 through 27 June 1993, 18 June 1988 through 17 June 1989, 4 November 1989 through 25 September 1990, 26 September 1990 through 22 April 1991, 23 April 1991 through 29 February 1992, and 1 March 1992 through 28 February 1993.

20.  Army Regulation 600-20 prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct.

	a.  Paragraph 1-5 states that command is exercised by virtue of office and the special assignment of members of the U.S. Armed Forces holding military grade who are eligible to exercise command.  A commander is, therefore, a commissioned or warrant officer who, by virtue of grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a "command."  The key elements of command are authority and responsibility.  Formal authority for command is derived from the policies, procedures, and precedents.

	b.  Paragraph 2-1 states, in pertinent part, that commanders are responsible for everything their command does or fails to do.  However, commanders subdivide responsibility and authority and assign portions of both to various subordinate commanders and staff members.  In this way, a proper degree of responsibility becomes inherent in each command echelon.  Commanders delegate sufficient authority to Soldiers in the chain of command to accomplish their assigned duties, and commanders may hold these Soldiers responsible for their actions.  Commanders who assign responsibility and authority to their subordinates still retain the overall responsibility for the actions of their commands.  The chain of command assists commanders at all levels to achieve their primary function of accomplishing the unit's assigned mission while caring for personnel and property in their charge.  A simple and direct chain of command facilitates the transmittal of orders from the highest to the lowest levels in a minimum of time and with the least chance of misinterpretation.  The command channel extends upward in the same manner for matters requiring official communication from subordinate to senior.

	c.  Paragraph 2-17 states that when a senior commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first GO (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.  If a GO (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required; however, Army Regulation 623-3 (Evaluation Reporting System) concerning administrative review of relief reports remain applicable.

21.  Army Regulation 623-105 (31 March 1992 version) established the policies and procedures for the OER system.

	a.  Paragraph 4-27 stated the requirements for referred OERs.  The regulation required that the SR would refer an OER to the rated officer when the following conditions existed:  (1) a relief-for-cause report is submitted; (2) any report with negative remarks about the rated officer's professional ethics; (3) any report with a rating of "4" or "5" in any of the 14 attributes; (4) any report resulting in a performance evaluation of "Often failed requirements" or "Usually failed requirements"; (5) any report with a potential evaluation of "Do not promote" or narrative comments by any rating official to that effect; (6) any report with a potential evaluation in Part Vd of "Other" where the required explanation had derogatory information; (7) any report with a senior rater potential evaluation in any one of the bottom three blocks in Part VIIa; (8) any report with ratings or comments that, in the opinion of the SR, were so derogatory that the report might have an adverse impact on the rated officer's career; (9) any report with an entry of "Fail" in Part IVa, item 3, indicating noncompliance with Army Regulation 
350-15 (Army Physical Fitness Program); or an entry of "No" in Part IVa, item 12, indicating noncompliance with Army Regulation 600-9 (The Army Weight Control Program).

	b.  Paragraph 5-18 provided that an OER was required when an officer was relieved for cause.  The regulation further defined relief for cause as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.

	c.  Paragraph 5-28 provided, in pertinent part, that any OER with ratings or comments that, in the opinion of the senior rater, were so derogatory that the report may have an adverse impact on the rated officer's career would be referred for acknowledgment and comment prior to forwarding to Department of the Army.  Paragraph 5-28b of this regulation specifically required the rated officer to acknowledge receipt of the referred OER.  This paragraph also stated that the rated officer could make comments if he/she believed that the rating or remarks were incorrect, but the comments must be factual, concise, and limited to matters directly related to the evaluation on the OER.  Additionally, paragraph 5-28c specified that the rated officer's comments to referral of an OER did not constitute an appeal and that appeals were processed separately in accordance with chapter 9 of that regulation.  Paragraph 5-29 requires that relief reports be referred to the rated officer in accordance with paragraph 5-28.

	d.  Paragraph 5-32 (Active Duty) and paragraph 8-26 (ARNG) provided that an OER accepted by Headquarters, Department of the Army, and/or the ARNG Personnel Center and included in the official record of an officer was presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Requests that an accepted report be altered, withdrawn, or replaced with another report would not be honored.

	e.  Paragraph 9-7 stated that the burden of proof in an appeal of an OER rested with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcame the presumptions referred to above and that action to correct an apparent material error or inaccuracy was warranted.

22.  Army Regulation 135-155 (ARNG and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also 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 military schooling.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the applicant's contested OER be voided, his relief from command be voided, his memoranda of notification of non-selection for promotion to CPT be voided, the applicant's consideration for promotion to CPT by an SSB, the applicant's direct promotion to CPT with an effective date of promotion as the date he otherwise would have been promoted but for his non-selection, award of back pay and allowances from the date of his promotion to the present, and pay for service he would have rendered from the date of his release from the Texas ARNG until the date he was released from the USAR IRR.

2.  With respect to the applicant's relief from command, it is noted here that the applicant was never in command.  He performed duties of Platoon Leader and was performing duties as Company XO at the time he was relieved from his duties.  He was never relieved from command because he was not in command. 
Nothing in his record indicates his chain of command appointed him to command.  The rule specified in Army Regulation 600-20 that a GO directs the relief in writing applies when a senior commander loses confidence in a subordinate commander's ability to command.  The applicant was relieved from his duties as a subordinate officer; not a subordinate commander.  Therefore, there was no requirement for a GO's written concurrence.

3.  With respect to the contested OER, the evidence of record shows the applicant received an adverse OER that clearly identified substandard performance or conduct (failure to adhere to the Battalion Commander's guidance, continuing displays of unsound behavior, and failure to accept responsibility for personal decisions and actions).  There is no evidence and the applicant has not provided compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or SR did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  The Battalion Commander properly relieved him from his position as XO and the unit properly referred the OER to him under the appropriate regulation that governed such action.

4.  The applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of the contested OER.  Therefore, there is no basis for removal of the contested OER.

5.  With respect to the promotion non-selection memorandums, promotion boards are not required to divulge the reasons for non-selection of an officer to the higher grade with the exception of non-completion of military education.  Promotion boards generally use the total-person concept and select the best qualified individuals for promotion.  It is not known if the applicant's promotion file was not sufficiently competitive or if other officers within the population considered by those boards were more competitive.  His dissatisfaction with the outcome of the selection boards does not invalidate the results of those boards or establish a material error because the board considered the referred OER.  Counsel is correct when he noted that the applicant probably was not competitive for promotion due to his referred OER.

6.  With respect to his direct promotion to CPT, by regulation, prior to promoting an officer to the next higher grade, the officer must be fully qualified (physically, morally, educationally, and meet other criteria) for consideration by a promotion board, must be selected by a promotion board, and must, after being selected, be fully qualified for promotion.  In the applicant's case, he was never selected by a board.  There is no provision in the governing regulation to hand out direct promotions for 1LTs to CPTs.

7.  With respect to his reconsideration of his promotion file by an SSB, the regulation specifies that promotion 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 in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The applicant failed to show there was a material error that would warrant consideration of his file by an SSB.  Since the OER was not improper, there is no basis to grant him an SSB.

8.  With respect to awarding him back pay and allowances from the date of his promotion to the present, counsel makes a misleading statement when he states, "from the date of his promotion."  This suggests that the applicant was in fact promoted or is entitled to promotion.  This is not the case.  The applicant was never selected for promotion to CPT.  There is no statute or provision in the governing regulation to award unearned pay and allowances.

9.  With respect to awarding him pay for service he would have rendered from the date of his release from the Texas ARNG until the date he was released from the USAR IRR, generally speaking, an officer is entitled to pay only when he performs specified duties.  Even if the separation was wrongful, in the absence of the applicant actually having performed duties for which the Government is obligated to pay, there is no debt for which the Government is liable.  Although the Secretary may pay a claim from applicable current appropriations for the loss of pay, allowances, compensation, or other benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under Title 10, U.S. Code, section 1552, the amount is found to be due the claimant, there is no statute or regulation that mandates pay for service never actually performed by a member of the ARNG.  In the absence of such a statute or regulation, the applicant cannot demonstrate a substantive right to pay for the period of constructive service the previous ABCMR's decision added to his record.  Lacking such a pay-mandating statute on which to base his claim, the applicant is neither entitled to back pay nor should he receive any.

10.  With respect to the applicant's claim that the ABCMR improper processes cases, the applicant properly notes that ABCMR analysts may not effectively co-opt the role of Board members in deciding cases.  The applicant's arguments, however, are misleading and draw improper conclusions from the Army Review Board Agency's responses to his Freedom of Information Act (FOIA) request.  While the ABCMR, on average, may only spend minutes on a case, this calculation ignores several important facts not contained in the FOIA response:

	a.  Most cases considered by the Board rest on a single issue, are non-controversial, or are clearly answered by reference to a regulation or a statute.  These cases do not require time for the Board to decide.  Where a case involves complex issues, the Board takes the time to thoroughly review the record and the analyst's recommendation before making a decision.

	b.  Analysts do not dictate the outcome of a particular case.  Analysts act much like a law clerk for a judge in synthesizing the law and pertinent facts in a draft decision that the Board is free to reject.  The Board, does, in many cases, concur with the analyst because the decision whether to grant relief, as noted above, involves a straightforward application of the facts in the record and applicable law and regulation.  However, it is not unusual for the Board, after considering the entire record, to disagree with the analyst by rendering a decision contrary to the analyst's recommendation.

	c.  Most importantly, the applicant in this case has failed to provide any particular proof the ABCMR failed to give his case a fair and complete adjudication.  If anything, the record suggests the exact opposite given the ABCMR's earlier decision to grant relief.  The applicant failed to appreciate that while the ABCMR exists to help Soldiers, it is not a vehicle for dispensing unearned or unjustified benefits or record correction.  Every Board member operates with this understanding when deciding whether, as a matter of law or equity, the record of the individual Soldier before them warrants relief on its own merits.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090004612, dated 14 May 2009.



      ____________XXX____________
                 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)                                         AR20090020848



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ABCMR Record of Proceedings (cont)                                         AR20090020848



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