IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100012599 


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 promotion to colonel (COL).

2.  She states she is a two time pass over for promotion to COL due to not being deployed in support of Operation Iraqi Freedom or Operation Enduring Freedom. She offers the promotion board improperly failed to consider her for promotion for not having deployment experience to Iraq or Afghanistan.  She quotes the promotion selection guidance provided to the board members in the Memorandum of Instructions (MOI) for the Fiscal Year (FY) 2008 COL Army Promotion List (APL) Competitive Categories, Promotion Selection Boards for "Reserve and Army National Guard (ARNG)" and opines the board was given improper instructions by the Secretary of the Army (SA).  She adds the improper instructions consisted of "Special attention should be paid to officers serving on Transition Teams in the current environment and foreseeable future and Special attention should be paid to officers serving on Provincial Reconstruction Teams (PRTs) in the current environment and foreseeable future."  

3.  She provides the following:

* MOI for the FY 08 COL, ARNG and Army Reserve Active Guard Reserve (AGR), and Army Reserve Non-AGR, APL Competitive Categories, Promotion Selection Boards, dated 30 August 2007
* Memorandum, Subject:  Promotion List for COL, APL, U.S. Army Reserve (USAR) Components, dated 13 February 2008
* Memorandum, Subject:  Promotion Reconsideration Board - (applicant's name and social security number), dated 3 September 2009, with supporting documents

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a USAR second lieutenant on 5 May 1984. She was promoted to lieutenant colonel, effective 20 July 2003.

2.  The MOI for the FY 08 COL "ARNG and Reserve" Promotion Selection Board, dated 30 August 2007, provided instructions to those officers appointed on the board.  The sections the applicant referenced in her application to the Board and her comments to the advisory opinion listed under "Guidance" in the MOI are as follows:

Paragraph 4g:  Special attention should be paid to officers serving on Transition Teams in the current environment and foreseeable future.  The invaluable experience these officers are receiving in these tough assignments will posture them for success in future leadership positions in the operational environment.  Transition Teams are the key force multiplier that will enable the United States to hand over security responsibilities to host nation security forces.  Transition Teams live and operate under very austere conditions and are embedded with Iraqi or Afghan units at the battalion, brigade, and division level.  The teams may be called Military Transition Teams (MiTTs), Special Police Transition Teams (SpTTs), or Border Teams.  The members of the teams serve as advisors as well as the coalition link to force enablers for the foreign command group and their staff.  Reserve and active officers may serve as team Chiefs, executive officers or staff members to shadow the unit's leadership; the battalion team is led by a major, brigade team by a lieutenant colonel, and a colonel on the division team.  They directly represent the United States of America and are charged with coaching, teaching and mentoring host nation security forces while simultaneously conducting combat operation as an embedded part of the host nation security force.  The boards should understand the challenging nature and demands of these jobs and provide appropriate consideration in the overall evaluation of each officer's record.

Paragraph 4h:  Special attention should be paid to officers serving on Provincial Reconstruction Teams (PRTs) in the current environment and foreseeable future.  PRTs assist the Afghan government in stabilizing the country, encourage international and non-governmental organization to 

operate in rural areas and facilitate reconstruction.  Their primary functions focus on the coordination of the reconstruction process, identification of reconstruction projects, conducting village assessments, and liaising with regional commanders.  Members of the PRTs work closely with provincial governors, local leaders and elders, Afghan government ministers, the United Nations and other international agencies.  PRTs operate in remote area where other non-governmental organizations traditionally have no presence, providing a more stable and secure environment and a tangible oversight of cent.ral government programs.

Paragraph 4m:  I wish to emphasize that in accordance with Department of the Army (DA) Memorandum 600-4, paragraph10b, you should not place undue emphasis on the diversity of assignment or the level at which duties are performed.  All assignments are important to sustain a trained and ready Army.  The absence of command, combat experience, or support of deployed forces, for example, should not be a basis for non-selection.  

3.  Promotion List for COL, APL, U.S. Army Reserve Components, dated 
13 February 2008, provided a summary of the board actions.  This memorandum shows the board considered 72 Army Reserve AGR Officers who were previously considered for promotion to COL and selected 5 of those officers.  These statistics indicate there was a 7 percent (%) selection rate for promotion to COL in the previously considered zone.

4.  On 3 September 2009, the applicant requested a promotion reconsideration board.  She stated the FY 2008 COL, APL Competitive Categories, Promotion Selection Boards for Reserve and ARNG Soldiers improperly failed to consider her for promotion.  She questioned the two guidance given to the board members of "special attention should be paid to officers serving on Transition Teams in the current environment and foreseeable future and special attention should be paid to officers serving on PRTs in the current environment and foreseeable future" and opined that these instructions were in violation of Army Regulation 600-20 (Command Policy).  She argued that the board was essentially instructed to create an institutional barrier; therefore, prejudiced officers who were not given the chance to serve on PRTs or Transitional Teams. 

5.  She continued by citing guidance listed in the MOI and argued that the guidance emphasized not placing undue emphasis on the diversity of assignment or the absence of combat experience which contradicted the "special" attention comments.  She maintained the guidance of "View an officer's experience not in terms of one key assignment, but as a combination of many assignments and deployments" was also in conflict with the special attention comments.   

6.  On 4 November 2009, the Chief, DA Promotions, Human Resources Command, St Louis, MO (HRC-STL) responded to the applicant's request for promotion reconsideration.  The Chief, DA Promotions stated the applicant's record was considered, but not selected by the FY 2008 and 2009 COL DA Reserve Component Selection Boards.  He explained she was considered educationally qualified for the selection board.  He stated the reasons for the non-selection were unknown because board deliberations were not a matter of record.  He further stated the applicant's archived 2008 and 2009 board consideration files revealed all critical elements were present in the board consideration file to include her Officer Record Brief (ORB) and Officer Evaluation Reports (OERs) which were viewed and certified to be correct by her. Since there were no material error documents missing, she did not have a basis for a Special Selection Board (SSB).

7.  On 14 May 2010, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, HRC-STL.  The advisory official reiterated the information previously provided to the applicant.  Additionally, the advisory official stated the applicant applied for an SSB on 3 September 2009.  Her board consideration files were reviewed, found to have no material error, and considered complete.  The advisory official concluded that since there was no material error document missing, her request for a SSB was subsequently denied.

8.  On 17 September 2010, a copy of the advisory opinion was furnished to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 29 September 2010, the applicant responded to the advisory opinion.  She clarified her contention that the promotion board "improperly" failed to consider her for promotion for not having deployment experience in Iraq or Afghanistan.  She reiterated the promotion selection guidelines pertaining to special attention to those officers serving on PRTs or Transitional Teams and offered that the advisory opinion failed to address any of the specifics of her complaint.  She quoted from Army Regulation 600-20 and opined the guidelines in the MOI created an institutional barrier against officers who have not served in PRTs or Transitional Teams; therefore, violating the regulation.  She stated there was no evidence the board was ever instructed to treat every officer equally.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) provides guidelines on promotion board procedures.  Paragraph 3-10 states that the SA or their designee will issue an MOI to selection boards prescribing the oath to be taken by board members.  The MOI 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.  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.  The MOI will direct that the board, in pertinent part, to:

* Review the evaluation report files when determining an officer's qualifications
*  Select officers using the fully or best-qualified method, as covered in the MOI

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has failed to provide any to show the FY 08 COL, ARNG and Army Reserve AGR Promotion Selection Board "improperly" failed to consider her for promotion.  Information obtained from DA Promotions, HRC-STL, verifies she was considered, but not selected for promotion.

2.  The fact the promotion board was informed in the MOI that special attention should be paid to officers serving on Transition Teams and PRTs in the current environment and foreseeable future is not sufficient justification to conclude "the board was given improper instructions" and therefore, she was discriminated against.  Since the type of job, duties, and responsibilities are listed in the officers' evaluation reports and ORBs and are reviewed as part of the selection process, the special instructions as set forth in the MOI explains the responsibilities involved in serving on these teams for the board members' clarification.  It does not appear that these "special attention areas" were listed as a means to discriminate against those officers who had not been deployed.

3.  Further, as shown in the summary of board actions, there were only 5 officers selected out of 72 considered for promotion in the previously considered zone under the FY 2008 board.  A 7% selection rate is extremely low; however, as stated in both memoranda issued by DA Promotions, the reasons for non-selection were unknown because board deliberations are not a matter of record.  Therefore, without evidence to substantiate her non-selection for promotion to COL was based solely on the fact of her non-deployment experience, there is no basis to grant her request.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100012599



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ABCMR Record of Proceedings (cont)                                         AR20100012599



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