IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20100000525 


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 reconsideration of his non-selection for promotion by the Fiscal Year (FY) 2008 U.S. Army Reserve (USAR) Colonel Judge Advocate General's (JAG) Corps Active Guard Reserve (AGR) Competitive Category Promotion Selection Board (PSB). 

2.  The applicant states the following:

     a.  He requested a complete copy of his board consideration file (BCF) as it existed when the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB reviewed it.

     b.  His file contained more than one material error as defined in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

     c.  He requested reconsideration by the Army Human Resources Command (AHRC) on 29 December 2008.

     d.  The most significant of the material errors was the inclusion of two copies of the same officer evaluation report (OER), dated 1 September 1998 in his BCF.  The OER was originally marked "center of mass" and filed in his Official Military Personnel File (OMPF).  A corrected copy, marked "above center of mass," was later filed, but the first OER was not removed from his OMPF and both were included in his BCF.

     e.  On 31 March 2009, AHRC informed him that having both versions of the OER in his BCF did not constitute a material error.

     f.  The organization of his BCF was inherently confusing for board members for the following reasons:

* a board file should be organized in reverse chronological order, and his file was not organized 
* pages of individual documents (such as OERs) are separated by other unrelated documents

     g.  He reviewed his BCF prior to the board and verified the incorrect OER had been removed.  However, the BCF considered by the board contained both documents.  He further states the presence of both OERs was tantamount to an invitation to the board members to speculate on what led to the correction.

3.  The applicant provides the following: 

* a request for reconsideration of his non-selection for promotion
* an affidavit regarding the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB
* a copy of his BCF in the sequence he received it from AHRC
* a denial memorandum from AHRC 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Utah Army National Guard on 5 April 1980, was commissioned in the Army National Guard on 14 December 1984, entered the Regular Army as a commissioned officer on 9 August 1986, and he has served in the USAR since 2 September 1998.  He is currently serving in the JAG Corps in the AGR program.  He was promoted to lieutenant colonel on 19 February 2004.   

2.  The Soldier Management System contains e-mail correspondence between the applicant and AHRC showing the following:

* The applicant reviewed his OMPF prior to consideration for promotion in 2008
* He noted an incorrect OER was in his file
* He requested removal of the incorrect OER 


3.  The record is void of evidence showing the incorrect OER was removed before the applicant's BCF was reviewed by the PSB in March 2008.  The record is also void of documentary evidence indicating whether or not the board viewed the incorrect OER.

4.  A letter written to the applicant from the Chief, Special Actions Branch, DA Promotions, AHRC, shows the following:

     a.  The BCF viewed by the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB was in proper order.  

     b.  The BCF could not be sent to the applicant assembled in the same order it was viewed by the board. 

     c.  The Special Actions Branch reviewed the BCF and found no material errors.

5.  The copy of the BCF sent to the applicant by AHRC includes both the incorrect and corrected OERs.

6.  The current OMPF does not contain the incorrect OER marked "center of mass."

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states the following:

     a.  Promotion consideration or reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

     b.  Officers will be directed to review their records and submit copies of missing documents or other corrections before the PSB convenes.

     c.  "Material error" is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual’s non-selection by a PSB.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his non-selection for promotion by the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB is supported by the evidence.

2.  Evidence indicates an incorrect OER was present in the applicant's BCF at the time he was considered for promotion to colonel.  

3.  A letter written to the applicant from the Chief, Special Actions Branch, DA Promotions, AHRC, shows the applicant's BCF was reviewed and no material errors were identified.  However, the record is void of documentary evidence showing whether or not the incorrect OER was viewed by the PSB.  Considering the incorrect OER was included in the BCF sent to the applicant, it is possible that it was included in the BCF reviewed by PSB, which would constitute a material error.

4.  Based on the foregoing, it would be in the interest of justice to submit the applicant's records to an SSB for consideration for promotion under the criteria followed by the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by placing his record before a duly-constituted SSB for promotion consideration to colonel under the criteria followed by the FY 2008 USAR Colonel JAG Corps AGR Competitive Category PSB.

2.  If he is selected for promotion by the SSB and if otherwise eligible, his record should be corrected by establishing his colonel promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by 


the SSB and by providing him all back pay and allowances due as a result.  If he is not selected for promotion by the SSB, he should be so notified by the appropriate promotion officials.




      _______ _   __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)                                         AR20100000525



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)