IN THE CASE OF:
BOARD DATE: 12 August 2010
DOCKET NUMBER: AR20090021673
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 his records be corrected to show he was selected for promotion to captain by the Fiscal Year 2008 (FY08) captain promotion board.
2. The applicant states he met the required time in service, performance, and academic requirements for selection for promotion to captain by the FY08 captain promotion board.
3. The applicant provides excerpts from his military records which include officer evaluation reports (OER's) for the period 1 February 2006 to 13 October 2008.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 1 May 2003.
2. He was promoted to first lieutenant on 30 April 2005.
3. The applicant was given a relief-for-cause OER for the period covering 1 January 2006 to 31 January 2006. The applicant's rater evaluated his potential for promotion as "Unsatisfactory Performance, Do Not Promote" and his senior rater evaluated his potential for promotion as "Do Not Promote." This was considered an adverse OER and was referred to the applicant for acknowledgement and comment.
4. The applicant was flagged (suspension of favorable personnel action) on 21 November 2009. The reason for the flag is not contained in the applicant's records.
5. On 23 June 2010 orders were published showing the applicant was promoted to captain effective 26 May 2010.
6. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states at:
a. table 2-1, the maximum time in grade (TIG) for promotion to captain is 5 years;
b. paragraph 2-10, the first consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements in table 2-1 or table 2-3, as appropriate; and
c. paragraph 3-19, promotion reconsideration may be given when one or more evaluation report which should have been seen by the board was missing from the record. However, promotion reconsideration is not provided when an administrative error was immaterial or when the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the record or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and providing any relevant documentation that he or she had.
7. In the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis, MO. The advisory official stated that while the applicant was educationally qualified for promotion when he was considered by the FY08 captain selection board that convened on 6 November 2007, that board did not have the applicant's OER for the period ending 5 October 2007 which is considered a material error and could be the basis for promotion reconsideration. However, the applicant did not view his board consideration file prior to the convening date, which reflects a lack of due diligence. In addition, favorable consideration by a special selection board is questionable in view of the applicant's referred relief-for-cause/do-not-promote referred OER.
8. The advisory official continues that the applicant was also not selected by the FY09 captain selection board which convened on 4 November 2008. This promotion board did not have the applicant's OER for the period ending 13 October 2008. However, the applicant had viewed and certified that his board file was complete on 11 October 2008. The advisory official adds that, in view of the applicant's relief-for-cause/do-not-promote referred OER, he may not be selected by a special selection board.
9. The advisory official continues that while the applicant was selected for promotion by the FY10 captain selection board, that promotion is on hold because the applicant is currently flagged.
10. The applicant was provided a copy of the advisory opinion and was given the opportunity to provide additional comments or documents. He did not respond.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's promotion file for both the FY08 and FY09 promotion boards was missing an OER, the applicant has not explained why he did not provide the promotion boards with the two missing documents. For the FY09 board, he even certified his promotion file as being complete. As such, the applicant did not exercise reasonable diligence in discovering and correcting the omission in the record by notifying the Office of Promotions of the error and providing the missing OER's.
2. In addition, the likelihood of the applicant being selected for promotion so soon after a relief-for-cause/do-not-promote referred OER (which, although the applicant provided a number of OER's to the ABCMR, was not provided by the applicant) is considered nonexistent. Therefore, the missing OER's are considered immaterial.
3. The applicant was selected for promotion with an effective date that was 26 days past his 5-year maximum TIG. It is presumed that is the date he met all of the qualifications for promotion to captain and he would have been promoted on that date if he had not been flagged.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090021673
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090021673
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130005812
In support of his request, the applicant provides the following documents: a. email messages (from March 2013) between the applicant and an official in Officer Promotions, HRC, that show: * the applicant inquired about his eligibility for promotion to LTC in the USAR * he was advised the FY08 Active Duty List (ADL) Board would have considered him had he still been in the USAR * he inquired when he would have been considered for promotion to LTC in the RA * he was advised the FY08 PSB would...
ARMY | BCMR | CY2012 | 20120020952
He was placed in the Retired Reserve after being twice non-selected for promotion to LTC only 4 years after being promoted to MAJ. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) specifies that MAJ to LTC mandatory boards occur when an officer reaches 7 years TIG. d. ABCMR Docket Number AR20060014854, dated 17 January 2007, pertaining to his selection to MAJ by the SSB 2005SS12R7 adjourning on 4 November 2005 indicates the...
ARMY | BCMR | CY2008 | 20080017581
The applicant states that he met the requirements for requesting an education waiver and submitted the request for a military education waiver to his branch manager prior to the Fiscal Year 2008 (FY08) Reserve Components Selection Board (RCSB). The letter also notified him that the records reviewed by the RCSB did not indicate he had completed the required military education by the date the board convened and that he should review the mandatory education requirements for promotion as...
ARMY | BCMR | CY2011 | 20110011529
The applicant requests an expedited correction of his records as follows: a. to show he was promoted to colonel (COL) by the Fiscal Year (FY) 2005 Judge Advocate General's Corps (JAGC) Promotion Selection Board (PSB) with an appropriate date of rank with entitlement to back pay and allowances; b. to remove the rater's narrative comments from his 2003 officer evaluation report (OER) and provide appropriate instructions to any PSB (including any appropriate special selection boards (SSBs); c....
ARMY | BCMR | CY2013 | 20130002017
The Army G-1 admits yes it was wrong to have the COL serve on so many PSBs, which is clearly inconsistent with the Army G-1 SOP, but since the other five FY09 board members were properly selected under the G-1 SOP; it is okay for the COL to vote his file for a third time in August 2009. j. he never alleged an "entitlement to promotion to COL" as inappropriately stated in the ROP. (1) If the Secretary of the Military Department concerned determines that because of administrative error a...
ARMY | BCMR | CY2009 | 20090012765
The applicant submitted a copy of a memorandum, dated 14 November 2008, addressed to the President, 2008 Engineer Officer Review Board, in which he stated that he would graduate with a Bachelor's Degree in Biology on 20 December 2008. The civilian education requirement is a Baccalaureate Degree. On 18 June 2009, by letter, the Chief, Special Actions Branch, DA Promotions, USAHRC-St. Louis notified the applicant that at the time he was considered for promotion in November 2008, he had not...
ARMY | BCMR | CY2003 | 2003086725C070212
The applicant states, in effect, that he has been unjustly denied promotion reconsideration by the Officer Special Selection Board (OSRB) because that board incorrectly opined that he had not exercised due diligence to ensure that his record was up to date before the promotion board convened. He goes on to state that he was not selected by that board and it was not until an astute board member on the FY2001 selection board recognized that there was period missing that it was discovered that...
ARMY | BCMR | CY2013 | 20130018878.
The applicant requests reconsideration for promotion to major (MAJ)/O-4, Judge Advocate General's Corp (JAGC) by a Special Selection Board (SSB) for a missing DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 1 January 2011 through 31 December 2011 (hereafter referred to as the contested OER). The applicant provided a memorandum from his senior rater to the U.S. Army Human Resources Command (HRC), dated 10 August 2012, requesting that an SSB for reconsideration of the...
ARMY | BCMR | CY2012 | 20120013134
The applicant states: * He is a Special Agent/GS-14 (now Senior Executive Service) with the Federal Bureau of Investigation (FBI) and has been designated a Key Federal Employee since May 2010 * Despite being twice not selected for promotion to lieutenant colonel (LTC), he was provided positive written notifications, on two occasions, that he was SELCON (continued service on the Reserve Active Status List (RASL) in March 2011, approved by the Secretary of the Army (SA) * Regardless whether a...
ARMY | BCMR | CY2010 | 20100023391
Also on 11 March 2010, HRC-STL issued the applicant his promotion to LTC memorandum with an effective date of 11 March 2010. Therefore, the officer may have a maximum time in grade date that is before the approval date of the promotion advisory board/special selection board that recommended him or her for promotion. As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by amending Federal...