IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100007072 


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 her records be reviewed and she be reconsidered for promotion to lieutenant colonel/O-5 (LTC/O-5).

2.  The applicant states she believes she was unjustly passed over for promotion to LTC.  She claims she has been a JAG (Judge Advocate General) officer for 
20 years and served with a legal service organization for 10 years.  She states in 2001, she transferred to an out-of-branch position teaching law to Reserve Officers' Training Corps (ROTC) cadets.  She claims she was an ROTC instructor for 6 years and during this time she continued to meet all her military JAG requirements including attending annual continued legal education (CLE) training.  She states at the 2007 CLE training sessions, she learned for the first time a JAG officer is not supposed to be in an out-of-branch assignment for more than 3 years.  Immediately when she learned this, she transferred back into a JAG position.  

3.  The applicant states the reasons she believes her non-selection for promotion was an injustice are as follows:

   a.  She was not counseled on the out-of-branch rule when she transferred to an out-of-branch assignment nor was she informed The Judge Advocate General (TJAG) had to approve these assignments;

   b.  TJAG must have been aware of her out-of-branch assignment but she was never informed the rule existed or TJAG wanted her to return to a JAG assignment; 

   c. In seeking other military experiences through the assignment she believed she was enhancing her military career and she kept abreast of military law, she always met her annual JAG requirements, and she earned the Meritorious Service Medal for this assignment; 

   d.  She is aware ignorance of the rule is no excuse but she does not know how she could have known of the rule if not informed by TJAG given it is contained in an appendix of a  TJAG directory; and 

   e. She was informed by a Reserve personnel official that the only reason for her non-selection was her out-of-branch assignment of more than 3 years.

4.  The applicant further states that once her records are reviewed, she is sure the Board will agree TJAG failed her by not properly informing her that approval for her assignment by TJAG was required and/or counseling her on the more-than-3-year rule for out-of-branch assignments.  She claims she has an excellent military record and is currently serving on active duty as the Deputy Command JAG for an Area Support Group in Kuwait.  She states she deserves to be promoted and would appreciate a favorable review.  She states she is aware the decision of promotion boards is discretionary which is why she originally hesitated to request the review.  However, she believes it was unjust that leadership did not follow its own rule of requiring her to obtain TJAG approval for her assignment and by subsequently notifying her she could not serve in the position for more than 3 years.  

5.  The applicant provides the following documents in support of her application:

* TJAG Directory for 2009-2010
* Biographical Summary
* ARPC Form 240-E (Chronological Statement of Retirement Points)

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on 26 January 1990 she was appointed a first lieutenant/O-2 (1LT/O-2) in the United States Army Reserve (USAR).  On 
25 January 1994, she was promoted to captain/O-3 (CPT/O-3) and on 
24 October 2000, she was promoted to major/O-4 (MAJ/O-4).  

2.  The applicant was considered and not selected for promotion to LTC/O-5 by Reserve Promotion Selection Boards (RCSBs) in 2007, 2008, 2009, and 2010. 



3.  On 6 March 2008, a United States Army Human Resources Command, 
St. Louis, Missouri (HRC-St. Louis) memorandum, signed by the Deputy Director, Personnel Actions and Services, informed the applicant she was among many high-quality officers who were not recommended for promotion by a recently adjourned RCSB because established strength ceilings limited the number of commissioned officers that could be selected for promotion.  The memorandum also notified her that although she had not been selected for promotion, the RCSB recommended her for selective continuation in her present grade and this recommendation had been approved by the Secretary of the Army.  She was finally informed that she would continue to be considered for promotion by future RCSBs.  

4.  The record shows the applicant served and received Officer Evaluation Reports (OERs) as an Assistant Professor of Military Science (APMS) between August 2002 and February 2007, and as a legal officer for a USAR Military Police unit between February 2007 and February 2009.  It also shows the last OER she received was for the period 6 July 2009 through 5 July 2010, and that she was evaluated as the Deputy Command Judge Advocate for the Area Support Group-Kuwait.  

5.  The applicant provides a Directory Cover Sheet with a Personnel Polices Appendix.  Paragraph 6-5 of the appendix contains guidance on USAR and Army National Guard JAG assignment and indicates these officers may have one out-of-branch assignment of up to three years during their careers.  It further indicates they will not be assigned to these nonJAG positions without the approval of TJAG or his designee.  The policy guidance makes no reference regarding the impact of these assignments on promotion.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR.  

7.  Chapter 3 of the same regulation provides guidance on board schedules and procedures.  It further contains guidance on instructions to the board and states the Secretary of the Army or his designee will issue a memorandum of instruction (MOI) to RCSBs that will include the zone of consideration as well as guidance to the board on methods of selection, reports to be furnished and any other administrative details required.  It stipulates in the MOI that officers will be selected using the fully or best qualified method.  



8.  The USAR promotion regulation further states the MOI is issued by authority of the SA.  Accordingly, the MOI may override certain provisions of this regulation for a particular board, provided such supersession is not contrary to law or other controlling regulation.  An oath is administered to board members in which they agree not to divulge the proceedings or results thereof pertaining to the selection or nonselection of individual officers.  It further stipulates board members will keep confidential their reasons for recommending or not recommending any officer considered; that for commissioned officers they will use either the fully qualified or best qualified method for selection as directed in the MOI.  The fully qualified method is applicable when the maximum number of officers to be selected equals or exceeds the number of officers in the zone.  The best qualified method is applicable when the number to be recommended equals the number to be considered.  

9.  Paragraph 3-19 of the Reserve Component promotion regulation contains guidance on promotion reconsideration boards.  It states SSBs will reconsider commissioned officers (other than commissioned warrant officers) that were eligible but not considered from promotion by an RCSB or whose records contained a material error.  It further states reconsideration by an SSB will not be normally granted when the error is minor or when the officer by exercising reasonable care could have detected and corrected the error.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was unjustly denied promotion based on not being properly counseled regarding TJAG policy on out-of-branch assignments and that she should be reconsidered for promotion by an SSB has been carefully considered.  However, the evidence is not sufficient to support this claim.  By regulation, USAR commissioned officers are selected for promotion based on either the fully qualified or best qualified method of selected as directed in the MOI issued by the SA or his designee.  Additionally, reconsideration by an SSB is authorized when an eligible officer is erroneously not considered for promotion by the regularly scheduled RCSB or when a material error exists in the record that reviewed by the RCSB.  

2.  In this case, neither of the situations that authorize reconsideration by an SSB exists.  The applicant was appropriately considered for promotion by the 2007, 2008, 2009 and 2010 RCSBs, and there is no evidence that her record contained a material error.  Further, there is no evidence that her out-of-branch assignment was the sole reason for her non-selection for promotion, as evidenced by the fact that she has subsequently not been selected for promotion in 2009 and 2010, after she reentered in branch assignments as a JAG officer.  


3.  Additionally, the JAG Directory out-of-branch assignment policy guidance provided by the applicant makes no reference to the impact of these assignments on promotion.  Promotion board members are required to use the instructions contained in the MOI issued by the SA in selecting officers for promotion and are prohibited from divulging their reasons for selecting or not selecting a particular officer.  Absent any specific evidence to the contrary, it must be presumed the applicant while qualified was not included in the best or fully qualified group of officers selected by any of the four RCSBs that considered but did not select her for promotion LTC/O-5.  

4.  As the applicant was informed in the 2008 notification of non-selection and her eligibility for selective continuation, not all of the Army's highly professional officer corps can be promoted.  Therefore, absent any evidence of a material error in the applicant's record, there is an insufficient evidentiary basis to support granting the requested relief.  

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)                                         AR20100007072



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ABCMR Record of Proceedings (cont)                                         AR20100007072


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