BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100009996 


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, immediate promotion to the grade of Colonel (COL).  If immediate promotion is not granted, the applicant requests a reconstruction of three of his Officer Evaluation Reports (OER)s and to be reconsidered for promotion to COL by a Special Selection Board (SSB) under the criteria of the Fiscal Year (FY) 2008 COL, Judge Advocate General's  (JAG) promotion selection board. 

2.  The applicant states, in effect, that on 12 August 2008, his personnel file went before the JAG COL promotion board containing three prejudicial errors that were not realized by him or those who were assisting him.  He contends that two of the errors concern improper rank on two separate OERs, with the end dates of 14 June 2003 and 31 October 2003, respectively.  These errors were caused by a negligent U.S. Army Personnel Command (PERSCOM) stamp, followed by a corrective but inordinately slow SSB which led to a retroactive promotion to Lieutenant Colonel (LTC).

3.  The applicant contends that although the SSB was designed to remove all the ill effects of the improper stamp, it ended up creating two additional errors due to the extreme length of time it took to conduct the board.  The third error involved a mistake by staff at Fort Monmouth, New Jersey in which an "X" was erroneously placed in the "NO" block of Part II (Authentication), d. (This is a referred report, do you wish to make comments?).  The applicant points out that the report was not a referred report.  In all instances the errors caused by others were derogatory and created a dearth of critical ratings in the rank of LTC which ultimately impacted his chance for promotion to COL. He adds that although he appealed all these matters to the appropriate offices within the Human Resources Command (HRC), their responses are questionable. 

4.  The applicant states that he submitted a request for an SSB to address material omissions and errors in his Official Military Personnel File (OMPF) as it appeared before the 12 August 2008 promotion board.  In his request, he listed the material omissions/errors in the following manner: 

   a. The errors stem from negligent action at PERSCOM several years ago.  In 2001, his file was to be considered as a "below-the-zone" (BZ) record at the JAG LTC promotion board.  He states that when he forwarded his last copy of his OER to PERSCOM, a clerk negligently placed a "[Selective] Continuation" (SELCON) stamp on the face of it, unintentionally defacing his file.  The error was not noticed by any of the parties which reviewed the file prior to the board.  He contends that when he came up for promotion "in zone" the following year, it was not noticed either.  In January 2003, he was notified that he was not selected for promotion to LTC. 
   
   b. The OER with end date 14 June 2003 improperly lists his rank as Major (MAJ) rather than MAJ Promotable (P).  He states that the report does not address his rank as being a promotable major either in the administrative data or in the narratives.  He also points out that at the time the OER was prepared, it was correct.  He contends that the retroactive promotion rendered it incorrect and misleading to the subsequent promotion board.   
   
   c. The OER with end date 31 October 2003 improperly lists his rank as MAJ rather than LTC.  He states that this OER appears immediately following the OER with end date 14 June 2003.  The rank of MAJ is mentioned throughout the report without making reference to his promotable status.  He goes on to say that the omission of the proper rank makes the situation more derogatory.  The next OER in sequence shows his date of rank (DOR) to LTC as 1 October 2003.  He states that at the time the OER was prepared it was correct but the retroactive promotion renders it incorrect coupled with the negative consequence of the SELCON stamp which was placed upon it.
   
   d. The OER with end date 4 June 2007 improperly lists the OER as a "referred report."  He contends that this report does not reflect the shell he submitted prior to the rating.  He points out that the "X" had been typed in the block after he signed the report and there was no chance for him to make corrections before it was sent to be placed in his official records.

5.  The applicant contends, in effect, the negative consequences present are the result of professionals failing to follow regulation and that all errors occurred once the OERs left his direct control.  He goes on to state the errors were not easily discovered and there were no warning signs from his chain of command, the G1 staff, HRC or others concerning the potential ill effects of a retroactive promotion.  The irregularities in the processing of his administrative appeals warrants attention and the Army's OER and SSB appeal processes protect important administrative rights derived from the Fifth Amendment of the U.S. Constitution.  They should be preserved from questions of fairness or impartiality, and the ABCMR can act to maintain them free of arbitrary or capricious conduct. 

6.  The applicant provides the following in support of his application:

* A copy of an email, dated 28 February 2003, Subject: OER from 2001
* A copy of a request for an SSB for promotion reconsideration to LTC, dated 14 May 2003
* A memorandum, dated 22 May 2003, Office of The Judge Advocate General (OTJAG), in support of the applicant's request for the SSB
* A copy of Military Personnel (MILPER) Message Number 08-126, Fiscal Year (FY)08 Colonel, Judge Advocate General's Promotion Board Zones of Consideration
* A copy of the applicant's certification that he reviewed his promotion board file
* A copy of six separate OERs 
* An Affidavit from the Secretary of the General Staff, Fort Monmouth, New Jersey 
* Copies of excerpts from Department of the Army Pamphlet 623-3 (Evaluation Reporting System), dated 13 August 2007
* An excerpt from Army Regulation 600-8-29 (Officer Promotions), dated 25 February 2005
* A copy of a request for an SSB for promotion reconsideration to COL, dated 14 April 2009
* A memorandum, dated 15 April 2009, U.S. Army Claims Service, OTJAG, in support of the applicant's request for the SSB
* A copy of a request for evaluation reports appeal, dated 14 April 2009
* A copy of a Federal Express Air Bill
* A copy of an inquiry memorandum, dated 13 July 2009, Subject:  Evaluation Reports Appeal
* A copy of certified mail receipts
* Copies of email transmissions between the applicant and HRC 
* Copies of two courses of action to correct alleged OER errors
* A copy of a Freedom of Information Act Request containing the complete board file on the applicant
* A compact disk containing back up files of the applicant's documents in support of this request

CONSIDERATION OF EVIDENCE:

1.  The applicant is a JAG Corps officer.  He was appointed a First Lieutenant on 14 September 1990.  He was promoted to Captain with a DOR of 1 April 1991 and then promoted to MAJ on 1 May 1998.  

2.  In FY01, the applicant was considered for promotion to LTC BZ and was not selected.  His promotion board OER with an end date of 14 June 2001 was mistakenly stamped SELCON instead of BZ.  In FY02, the applicant was considered for promotion in the primary zone and was not selected. 

3.  A memorandum dated 22 May 2003 from OTJAG points out that all the officers who were being considered BZ for the FY01 promotion board inadvertently had their OERs labeled with the SELCON stamp.  The memorandum also points out that the same OERs were added to the officers' OMPF and reviewed again for the FY02 JAG LTC promotion board.  In 2003, the OERs were corrected and replaced with the correct stamp in each of the officers' files.      

4.  The applicant appealed to PERSCOM for an SSB for promotion reconsideration to LTC.  A board convened and the applicant was promoted to LTC with a DOR of 1 October 2003. 

5.  The applicant's records reveal two OERs in the rank of MAJ with ending dates of 14 June 2003 and 31 October 2003, respectively.  

6.  The applicant's records also show he was given an OER with the end date of 4 June 2007 in the rank of LTC which had an "X" electronically placed in the referred report block of the form.  An affidavit from the Secretary of the General Staff explains that the "X" is in error.

7.  The applicant was in the primary zone of consideration for promotion to COL for the FY08 JAG COL O6 selection board which convened around 12 August 2008, however the applicant was not selected for COL.  There is no mention or indication in the evidence provided that the applicant submitted a letter to the President of the FY08 JAG COL O6 selection board explaining the two OERs which contain the alleged errors for the rank of MAJ.

8.  On 3 December 2008, pursuant to the Freedom of Information Act, the applicant requested a copy of his promotion board file for the FY08 COL board.  The file reveals that the applicant viewed and certified his promotion file on 
1 August 2008.  

9.  On 14 April 2009, the applicant appealed to HRC for an SSB for promotion reconsideration to COL and to the Evaluation Branch for correction of three OERS which were in his board file for FY08.  In his appeal, he points out what he considered to be administrative errors:

* OER with end date 14 June 2003 improperly lists his rank as MAJ rather than MAJ(P)
* OER with end date 31 October 2003 improperly lists his rank as MAJ rather than LTC
* OER with end date 4 June 2007 improperly lists OER as a referred report

10.  In a memorandum dated 6 May 2009, HRC denied the applicant's request for an SSB.  The memorandum explains that the OER with an end date of 4 June 2007 did have minor administrative errors which were corrected by the Evaluations Branch and that there was no need for a formal appeal.  The memorandum also states that the two OERs with end dates of 14 June 2003 and 31 October 2003 are more than 3 years old and can only be changed by appealing to the ABCMR.  

11.  In July 2009, a series of email transmissions between the applicant and HRC make reference to the alleged errors on the applicant's OERs.  Within the emails, the applicant points out his disparity with the response he received from his appeal.  He also states that subject to the requested changes, he does believe he can honestly certify his records showing he is satisfied with his OMPF to appear before the upcoming promotion board in its current condition.

12.  On 6 August 2009, the Chief, Appeals and Corrections Branch, HRC, replied to the applicant's emails and denied the applicant's request to change the two OERs on which he wanted his rank changed.  There is no evidence which shows that HRC referred the applicant's appeal to the Special Review Board (SRB) for consideration.  However, the email referred the applicant to appeal to the ABCMR for correction.

13.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provides guidance regarding redress programs including commander inquiries and appeals.  

14.  Army Regulation 623-3 provides the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  

15.  Chapter 6 of the same regulation contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-11 outlines the burden of proof that must be met to support a successful OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

16.  Army Regulation 623-3, Chapter 6, states, in pertinent part, that administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time.  Prompt submission is, therefore, recommended.

17.  Army Regulation 623-3, Chapter 3, states, in pertinent part, that the following types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA:
 
   a. A relief for cause report submitted under the provisions of para 3–58.
   
   b. Any report with negative remarks about the rated officer’s Values or Leader Attributes/Skills/ Actions in rater’s narrative evaluation.
   
   c. Any report with a rating of “NO” in Part IVa–c.
   
   d. Any report with an entry of “FAIL” in Part IVc, indicating noncompliance with Army Regulation 350–1; or an entry of “NO" indicating noncompliance with Army Regulation 600–9.
   e. Any report with a performance and potential evaluation in Part Va of “Unsatisfactory performance.  Do not promote” or narrative comments to that effect from any rating official.
   
   f. Any report with a performance and potential evaluation in Part Va of “Other” where the required explanation has derogatory information.
   
   g. Any report with a senior rater promotion potential evaluation of “Do Not Promote” in Part VIIa.
   
   h. Any report with a promotion potential evaluation of “Other” in Part VIIa where the required explanation has derogatory information.
   
   i. Any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb.
   
   j. Any report with negative comments in Parts Vb, Vc, VI, or VIIc.

19.  Army Regulation 600-8-29 (Officer Promotions) states that an officer may be considered or reconsidered for promotion by an SSB when his or her records contained a material error.

20.  Army Regulation 600-8-29 provides guidance for communicating with the promotion selection board.  It states, in pertinent part, officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning their records, which they consider important to their consideration.  Written memoranda sent to a promotion selection board will be considered if received not later than the date the board convenes.  Any memorandum considered by a promotion board will become a matter of record to be maintained with the records of the board. Memoranda to boards will not be filed in the officer’s OMPF.

21.  MILPER Message Number 08-126 states, in pertinent part, that all officers in the zones of consideration may, if desired, submit correspondence to the President of the Board.  Individual memoranda should include only those matters deemed important in the consideration of an officer's record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for immediate promotion to the grade of COL or the reconstructing of three OERs and promotion reconsideration by an SSB were carefully considered and are not supported by the evidence provided.  

2.  The applicant's contention that he was not selected by the FY08 JAG COL promotion due to administrative irregularities is not supported by the evidence.  Army Regulation 600-8-29 states that officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning their records.  MILPER Message Number 08-126 gives instructions for corresponding with the board.  The applicant's contention that he did not know about the errors in his promotion board file until after the board convened is only partially supported by his claims.  

3.  The evidence shows the OER with the end date of 14 June 2003, which contains the rank of MAJ rather than MAJ (P), was in the applicant's records prior to the board date.  The evidence also shows the OER with an end date of 
31 October 2003 was also in the applicant's records prior to the board date.  Presumably, the applicant had the opportunity to address these alleged discrepancies in a letter to the President of the board.  Army Regulation 623-3 states that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct.  At the time the reports were submitted, the applicant was in the rank of MAJ and he signed those reports confirming they were administratively correct.  Changing the reports to reflect that he was in a promotable status on one report, then a LTC on the other, would present a false representation of the report rendered at the time.  

4.  Also, the Army as a practice does not correct the rank reflected on OERs when an officer is selected for promotion with a backdated DOR.  In this respect the applicant does not warrant relief because he is in the same position as other officers similarly situated. 

5.  It is also noted that the applicant's OER with an end date of 4 June 2007 has been identified as having one "minor negative discrepancy" (i.e., an "X" electronically placed in the referred report block of the form) and that this report was in the applicant's records during the FY08 JAG COL board.  However, this discrepancy is so glaring that it would appear it was an honest administrative error rather than a referred report.  The report in question contains a "YES" in every required block in Part IV (Performance Evaluation – Professionalism).  The ratings received from the rater, intermediate rater and the senior rater are:  outstanding performance must promote, promote now and send to resident senior staff college, best qualified and above center of mass.  These are not comments in line with a referred report. 

6.  Given the reasons above, there is insufficient evidence to determine that the applicant's promotion chances were hurt by these discrepancies.  Based on the evidence presented, there was no material error in the applicant’s records which would present a negative impact on his chances for selection to COL; therefore, the applicant is not entitled for immediate promotion to COL or for promotion reconsideration by an SSB.

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)                                         AR20100009996





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