BOARD DATE: 27 April 2010
DOCKET NUMBER: AR20100008881
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, in effect, promotion reconsideration to colonel (COL).
2. The applicant states the Department of the Army Suitability Evaluation Board (DASEB) corrected the administrative material error but their decision did not address the harm to his potential career promotion.
3. The applicant provides through his counsel the following:
* Appeal letter to Army Board for Correction of Military Records (ABCMR) dated 14 January 2010
* DASEB decision dated 6 August 2009
* Three Officer Evaluation Reports (OER) covering the period 8 May 2006 through 7 May 2009
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests a Special Selection Board (SSB) be convened to review the applicant's file and reevaluate him for promotion to COL.
2. Counsel states DASEB's decision to remove the General Officer Memorandum of Record (GOMOR) from the applicant's record but not allow the applicant to be reconsidered for promotion is inherently contradictory.
CONSIDERATION OF EVIDENCE:
1. The applicant was a Regular Army lieutenant colonel at the time the GOMOR was issued.
2. On 6 August 2009, the DASEB determined the GOMOR was filed in error and granted the applicant the following relief:
a. removal of the GOMOR, dated August 2002, from the applicant's Official Military Personnel File (OMPF).
b. the Record of Proceedings (ROP) and allied documents would not be filed in the applicant's OMPF.
3. The DASEB determined that based on the effective date of the filing (i.e., 2 April 2007) of the GOMOR in the appellant's OMPF, the (2006) promotion selection board did not view the GOMOR. Therefore, the decision by the DASEB was not retroactive, and did not constitute grounds for promotion consideration if previously non-selected.
4. A review of applicant's OMPF shows the ROP, allied documents, and GOMOR are present in the restricted section of his record.
5. There is no unfavorable information in the applicant's record. All evaluations received subsequent to the GOMOR have been commendatory with ratings of "center of mass" and "above center of mass."
6. A review of the applicant's record in the Personnel Electronic Records Management System (iPERMS) shows the GOMOR was placed in his OMPF on 11 April 2007.
7. Army Regulation 600-8-29 (Officer Promotions) states an SSB will be convened under Title 10 United States Code (USC) 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for promotion reconsideration to colonel was carefully considered and there is sufficient evidence to grant relief.
2. On 6 August 2009, the DASEB found the GOMOR, dated 29 August 2002, was erroneously filed in the applicant's OMPF. The board directed that the GOMOR be removed from his OMPF; however, this relief was not retroactive and did not constitute grounds for promotion reconsideration. The board also directed the ROP not be filed in the OMPF.
3. Evidence shows the GOMOR in question is currently filed in the applicant's OMPF.
4. Notwithstanding the determination of the DASEB, filing errors committed in this case make it impossible to determine with certainty whether the GOMOR was viewed by the (2006) colonel promotion board.
5. As a matter of equity, the benefit of the doubt should go to the applicant based on the facts of this case. Therefore, the applicant's records should be considered by an SSB under the FY06 COL board criteria and any subsequent promotion boards that may have viewed the erroneously filed GOMOR.
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 COL under the FY06 criteria and any subsequent promotion consideration if nonselected while the improperly-filed GOMOR was in his record.
2. If selected for promotion by the SSB and if otherwise eligible, his record should be corrected by establishing his COL 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.
3. In addition, the GOMOR dated 29 August 2009 and all allied documents, to include the DASEB record of proceedings; and this Board's record of proceedings, will be removed from (or not filed in) the restricted section of the
applicant's OMPF and returned to this Board for permanent filing in accordance with Army Regulation 15-185.
___________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) AR20100008881
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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