BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100012797 


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, a special selection board (SSB) for reconsideration for promotion to colonel (COL) on the Fiscal Year 2009 (FY09) COL Chaplain (CH) Selection Board due to a board member’s personal prejudice.

2.  The applicant states the following:

* A promotion selection board member acted prejudicially during board proceedings due to his dislike for him
* A promotion selection board member stated publicly and privately that he would make sure he was not promoted to COL
* He was not selected for promotion by the FY09 COL CH Selection Board

3.  He provides the following documents:

* Memorandum of Instruction (MOI) for the FY09 COL, Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR AGR), and Army Reserve Non-Active Guard Reserve
(AR Non-AGR), CH Corps Competitive Categories, Promotion Selection Boards
* Email from the Assistant Command Inspector General (IG) of the Human Resources Command (HRC), dated 22 February 2010
* Three letters of support
* Seventeen DA Forms 67-9 (Officer Evaluation Report (OER)) covering various periods from 16 April 1996 through 28 February 2009
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the following:

* There is ample evidence to confirm implied bias
* Three individuals, CH COL N-----, CH Lieutenant Colonel (LTC) M-----, and CH LTC L-----, have come forward disclosing instances of bias against the applicant by CH COL C------
* Two components of "implied bias" include circumstantial evidence and the public perception of a promotion process 
* CH LTC M----- had a prior encounter with CH COL C------ and the other two did not
* Witness statements demonstrate that CH COL C------ had a predisposition to deny the applicant's promotion based on matters not of record
* Public confidence, in which the military conducts its affairs, is a recognized component for the elimination of panel members in a court-martial
* The record demonstrates the applicant had every reason to believe he would be promoted
* The applicant was occupying an O-6 slot and his OERs were "Above Center of Mass"
* The promotion rates for the board would have placed the applicant in the lower 60 percent
* The applicant's non-selection for promotion was an unlikely result based on his record

2.  Counsel provides a copy of the statistical data for the Promotion List for COL CH Corps, U.S. Army Reserve (USAR) Components.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Hawaii ARNG (HIARNG), CH Corps as a captain on 13 May 1994 with prior commissioned service in the U.S. Air Force.  He was separated from the HIARNG and he was appointed in the Florida ARNG (FLARNG), effective 12 December 1995.

2.  He was promoted to major effective 1 September 1996.  On 20 April 1997, he was separated from the FLARNG and he was transferred to the USAR Control Group (Individual Ready Reserve).  

3.  On 29 May 1999, he was reassigned to the AGR.  He was promoted to LTC effective 22 March 2004.

4.  He provided copies of his OERs for the periods 16 April 1996 through 28 February 2009 in which his potential compared with officers senior rated in the same grade were rated at "Center of Mass" and "Above Center of Mass."  His OER for the period 14 March 2008 through 28 February 2009 shows he was serving in a COL position during this period.  

5.  On 23 April 2009, he submitted a statement to the president of the FY09 COL CH Board.  He gave a brief history of his service in the U.S. Air Force, which he stated was not reflected in his Official Military Personnel File (OMPF).  He stated he completed Lean Six Sigma Training and he had been serving in an O-6 billet since March 2008.

6.  On 3 June 2009, the Secretary of the Army issued an MOI to board members on the FY09, COL, ARNGUS, AR AGR, AR Non-AGR, CH Corps Competitive Categories, Promotion Selection Boards.  The memorandum provided guidance to each board member on selection objectives, eligibility criteria, equal opportunity, and adverse information.  The selection objectives clearly stated a maximum of two officers could be recommended for promotion to COL in the AR AGR CH competitive category.

7.  Counsel provided results of the FY09 COL CH Corps Selection Board which indicates four AR AGR CH LTCs were considered for promotion to COL and two were selected for promotion.

8.  The applicant provided three letters of support which contained the following statements:

	a.  CH COL N----- (Retired) – He has known the applicant since June 1999 and has always known him to be honest, caring, dedicated to the Lord, his family, and the U.S. Army Chaplaincy.  He served as the Deputy Command Chaplain of the USAR Command at Fort McPherson, GA from April 2006 to March 2008 and CH COL C------ was the Command Chaplain.  Whenever they would talk concerning chaplains coming up for promotion, CH COL C------ would make it very clear that he felt the applicant was not a good chaplain and should not be promoted.  CH COL C----- said "if he had any say in it, he would not promote him."  This was not a one-time occurrence but happened anytime the applicant's name was mentioned in any context.  He remembered CH COL C----- implied at various times he wished they would find a way to get the applicant out of the Army Chaplaincy.

	b.  CH LTC M----- (USAR) – During a CH AGR Citizen Warrior Partnership Training, CH COL C----- commented "I sat on a promotion board recently where I knew this Chaplain and wanted to get rid of him but the other board members wouldn't let me and I had to vote the record."  CH LTC M----- thought CH COL 
C------ was referring to him based on his previous conflicts with him.  CH COL 
C------ sent a very nasty, scathing email about CH LTC M----- to his then Command CH.  CH LTC M-----‘s promotion board met in February 2007 and 
CH COL C----- was a member on that board, but he got promoted.  CH LTC 
M----- believes if CH COL C------ sat on the applicant's promotion board it is conceivable that CH COL C------ would vote not to promote the applicant because of "personal knowledge and not the record" based on CH LTC M-----‘s knowledge of the relationship between CH COL C------ and the applicant.  

	c.  CH LTC L----- (Chaplain Recruiting Branch) – He recalled two questions from the IG investigation.  He responded "Yes" to Question 1 indicating he heard CH COL C----- make negative remarks or derogatory statements about the applicant, or that the applicant should not be promoted to COL on several occasions, both in private and in group settings.  He also responded "Yes" to Question 2 indicating that CH COL C------ would attempt to influence other board members if given the opportunity.  He also responded that even if CH COL C---- did not influence any other board member, the fact that one board member comes into the process with his mind made up could put the officer at a distinct disadvantage.  

9.  In a 22 February 2010 email, the Assistant Command IG of HRC responded to the applicant's request regarding the FY09 COL CH Selection Board and his allegation that the board may have been prejudiced or improperly influenced by CH COL C------ and CH COL K-----.  Based on information gathered from this inquiry, the IG determined:

* Witnesses stated CH COL C------ made some disparaging comments, but it could not be determined if those comments prejudiced the promotion board
* The witnesses did not indicate CH COL K------ made any disparaging comments 
* Statements from the DA Secretariat denied any wrongdoing or misconduct relating to the execution of the FY09 CH COL Selection Board
* Each board member certified and attested in the board's reports that they complied with the MOI and current Department of Defense Instructions (DODI) 1320.14, regarding promotion boards
* The applicant was advised to submit a request for an SSB to HRC-St. Louis, MO (STL) and if the Army G-1 does not favorably support his SSB request, he had the option to appeal the decision through the ABCMR.

10.  On an unknown date, the applicant submitted a request for reconsideration by an SSB to HRC-STL.  

11.  In an 18 March 2010 memorandum, the Chief, Officer Division, Office the Deputy Chief of Staff, G-1, Washington, D.C. informed the applicant that his request for an SSB was not granted.  The information he provided failed to indicate any improper bias, whether personal or systematic, on the part of members of the FY09, AR AGR, COL, CH, Promotion Selection Board.  Their office was unable to determine his consideration by the selection board was unfair or otherwise contrary to law and accordingly, his request did not meet the standards for granting an SSB.  

12.  In an advisory opinion dated 14 May 2010, the Chief, Special Actions Branch, Department of the Army (DA) Promotions, HRC-STL stated:

* Selection boards are comprised of senior officers with exceptional performance records and a wealth of experience
* The Secretary of the Army provides written instructions to each selection board member through an MOI
* The applicant was considered, but not selected by the FY09 Colonel Chaplain DA Reserve Components Selection Board
* The reason for the nonselection is unknown because board deliberations are not a matter of record
* A thorough review of the applicant's board consideration file revealed no material error documents missing
* In fairness to the applicant, he should be granted an SSB for reconsideration for promotion to COL under FY09 criteria

13.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In response, he stated:

* He believes at least one promotion selection board member acted prejudicially during board proceedings due to his personal dislike for him
* Another chaplain told him that two of the board members had on numerous times attempted to make derogatory comments concerning him 
* His OERs show he occupied a colonel position; he was recommended for promotion "immediately," "without delay," "now" by all three rating officials and given an above center of mass rating
* His raters indicated he performed colonel-quality work with the appropriate results while he was still a lieutenant colonel  

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that selection boards will convene at the discretion of the Secretary Army (Chapter 3).  They will consider ARNGUS and USAR officers, in all competitive categories for promotion to COL.  Officers not selected for promotion to COL will continue to be considered by subsequent selection boards until either selected or removed from the Reserve Active Status List.

15.  Paragraph 3-5 of Army Regulation 135-155 specifies that promotion advisory boards and SSBs will be convened on an "as needed" basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered, but not selected by the FY09 COL CH Selection Board.  

2.  Since promotion boards are not permitted to disclose the reasons for 
non-selection for promotion, there is no record of the reason he failed to be selected for promotion to COL by the FY09 COL CH Selection Board.  Promotion and retention are keenly competitive and many officers will not be selected.

3.  His contention that a promotion selection board member acted prejudicially during board proceedings due to his dislike for him was considered.  However, there is insufficient evidence of record that suggests the applicant's non-selection for promotion was the result of bias of a board member.  

4.  DA written instructions were contained in the MOI provided to board members prior to the convening of the selection board.  Absent any specific evidence of bias on the part of any member of the selection board, it is presumed the members complied with these instructions and that the applicant's
non-selection was in no way based on any bias against his selection.  

5.  The evidence of record confirms he was properly considered for promotion with his peers, and as a result he was clearly provided due process in the promotion selection process, as confirmed in the investigation completed by the IG.  



6.  The promotion selection board members in question were selected by DA based on their maturity, judgment, and freedom from bias.  The applicant does not provide a sufficient evidentiary basis to call into question the integrity of these promotion board members.  In fact, in a statement provided by the applicant, CH COL C------ is quoted to have said "I sat on a promotion board recently where I knew this Chaplain and wanted to get rid of him but the other board members wouldn't let me and I had to vote the record."  This quote further indicates that in spite of his personal feelings, CH COL C------ upheld his responsibility as a board member.

7.  The selection objectives clearly stated a maximum of two officers could be recommended for promotion to COL in the AR AGR CH competitive category.  Evidence shows four officers were eligible for consideration; therefore, at least two officers could not be recommended for promotion.  Evidence also shows that all four eligible officers were considered and two were recommended for promotion.

8.  Contrary to the advisory opinion obtained from HRC-STL, there is no error or injustice that would warrant granting the applicant’s requested relief.   

9.  Counsel's contentions in regard to "implied bias" were also considered.  However, the evidence of record does not contain sufficient evidence to support his claims.  

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)                                         AR20100012797



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