IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100015139 


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.  The applicant states essentially he worked for a joint organization and managed classified programs.  His officer evaluation reports did not reflect the true nature of his responsibilities, achievements, or contributions.  Promotion boards did not have access to his true potential for promotion or leadership abilities.  This problem was caused by systematic and human material errors that caused his non-selection for promotion to COL by the 1990 promotion board.  Had these errors been properly addressed at the time, it would have more likely than not resulted in a reasonable chance he would have been selected for promotion.  

3.  The applicant provides: 

* Letter to the White House requesting award of the Presidential Service Badge
* Letter from the White House denying his request
* Welcome letter from the Defense Mobilization Systems Planning Activity (DMSPA)
* A printout of the selection criteria for Product Manager - Physical Security Equipment (PM-PSE)
* Letter of Resignation
* Draft and final DA Form 67-8 (Officer Evaluation Report) for the period 27 May 1987 through 26 May 1988
* Referral letter from his senior rater
* Response to referral letter
* OER Appeal
* Original Army Board for Correction of Military Records (ABCMR) denial 
* Reconsideration letter to ABCMR
* Response from ABCMR
* Magazine article, U.S. News and World Report
* Internet article regarding DMSPA and classified operations
* News Article
* 1990 Army Competitive Category (ACC) COL Promotion Board
* DOD Review of Correction of Military Records
* Letter to a general officer (GO)
* Verification of assignment as an Inspector General 
* Printout of special assignment
* Two previous DD Forms 149 (Application for Correction of Military Record)
* Letter from a retired GO to the ABCMR
* Correspondence with and from DOD regarding Board for Correction of Air Force Records
* Another individual's OER appeal
* Printouts of PM Reporting Chain and Operating Concept 
* Minutes of Meeting with Army Acquisition Executive

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he initially enlisted in the NYARNG on 31 October 1960, held a maintenance military occupational specialty, and was discharged from his enlisted status on 18 August 1966. 

3.  His records show he was appointed as a second lieutenant in the U.S. Army Reserve and executed an oath of office with service as a Military Police (MP) second lieutenant in the NYARNG on 19 August 1966.
4.  On 25 January 1972, he entered active duty as an MP Regular Army officer.  He subsequently served in various staff and leadership positions, within and/or outside the continental United States, and he was promoted to lieutenant colonel (LTC) on 1 October 1985. 

5.  In or about July 1985, he was assigned as a contract manager at DMSPA, a nominative joint staff position, and a high visibility position that required him to conduct the Army's business in a prudent manner.  

6.  While assigned to DMSPA, he received several OERs as indicated below wherein he was rated as "Always exceeded requirements" by his rater and "Promote ahead of contemporaries" by his intermediate rater; but he was rated second from the top block by his senior rater:

* Change of Rater, from 17 July 1985 through 30 January 1986
* Annual, from 31 January 1986 through 30 January 1987
* Change of Rater, from 31 January 1987 through 26 May 1987

7.  His records also show he was assigned to the U.S. Army Belvoir Research, Development, and Engineering (RD&E) Center during the period 27 May 1987 through 26 May 1988.  His OER during this period reflects a similar rating by his rater, intermediate rater, and senior rater, as before.

8.  He submitted the back page of a draft OER for the period 27 May 1987 through 26 May 1988 and a letter, dated 19 July 1988, wherein his senior rater, a Lieutenant General (LTG) and Military Deputy to the Assistant Secretary of the Army (Research, Development, and Acquisition), stated that the OER was referred to the applicant because in his (the LTG's) estimation, it contained a senior rater potential evaluation and comments may have an adverse effect on his career.  

9.  This draft OER shows his senior rater rated him as third from top.  However, this OER, provided by him, is not filed on his official records.  Nevertheless, on 24 June 1988, by letter to his Program Executive Officer (PEO), he submitted a letter of resignation from his position as PM-PSE and indicated he could not support the PEO in fielding the Basic Facility Intrusion Detection System (BFIDS).  He also submitted a letter response to the senior rater on 8 August 1988 wherein he disagreed with him and reaffirmed his position with respect to the BFIDS.  However, a copy of this letter is not filed on his official records. 



10.  His records contain an official and signed copy of this OER that shows a higher rating than that shown on the draft copy he provided.  Additionally, his records show he was assigned again to DMSPA and again received several OERs as indicated, wherein he was rated as "Always exceeded requirements" by his rater and "Promote ahead of contemporaries" by his intermediate rater; but received a second from the top block by his senior rater (except for one OER from 27 May 1990 through 23 October 1990, wherein he received a top block): 

* Annual, 27 May 1988 through 26 May 1989
* Annual, 27 May 1989 through 26 May 1990
* Permanent change of station, 27 May 1990 through 23 October 1990

11.  On 9 November 1988, by letter, he was notified that he was certified as an Army Materiel Acquisition Manager in view of his academic accomplishments and successful acquisition management experience.  

12.  On 29 May 1990, by letter, he was notified that he was selected for the U.S. Army War College Corresponding Studies Course (CSC) (non-resident), and on 1 June 1990, by letter, he was notified that he was selected for accession into the Army Acquisition Corps by the Acquisition Officer Selection Board and he would be awarded the appropriate acquisition skill identifier. 

13.  In August or September 1990, he was notified that his records were considered for promotion to COL by the April 1990 ACC Promotion Board but he was not selected for promotion. 

14.  On 7 November 1990, he requested consideration for promotion to COL by a Department of the Army (DA) Special Selection Board (SSB).  He contended that the promotion board did not have access to material information concerning his duty performance, that his job was classified, and that his OERs were written in an unclassified format which appeared favorable on their face but were generic and non-specific.

15.  On 7 November 1990, he also appealed four OERs (17 July 1985 through 30 January 1986; 31 January 1986 through 30 January 1987; 31 January 1987 through 26 May 1987; and 27 May 1988 through 26 May 1989) to the Officer Selection Review Board (OSRB), citing the highly classified work he did and that his OERs did not reflect his true accomplishments.  




16.  On 29 January 1991, the OSRB determined that, although the secret addenda he provided could not be filed in his official records (due to the classification), the DA SSB would consider the addenda along with his records under the 1990 criteria.  However, the OERs were determined to be correct. 

17.  On 17 September 1991, by memorandum from the DA Promotion Branch, he was notified that he was reconsidered for promotion to COL by a DA SSB under the criteria and instructions established by the April 1990 board but he was not recommended for promotion.  

18.  His records also show he was considered by the 1991, 1992, and 1993 COL promotion boards but was not selected.

19.  He ultimately requested voluntary retirement and was retired on 30 June 1994 and placed on the retired list in his retired rank of LTC on 1 July 1994.  He was credited with 25 years, 7 months, and 10 days of creditable active service.

20.  He submitted the following documents:

	a.  A letter, dated 12 February 2009, to the White House Military Officer wherein he requested award of the Presidential Service Badge and Certificate, and a letter, dated 30 March 2009, from the White House Military Officer notifying him that he was ineligible for this badge. 

	b.  A welcome letter, dated 6 June 1985, welcoming him to DMPSA, a DOD selectively manned nominative assignment, responsible for the integration, management, control, and operational direction of DOD mobilization systems. 

	c.  A printout of the selection criteria for a PM-PSE position.

	d.  A letter, dated 28 March 1994, to the ABCMR indicating his disagreement of the process used by the Board to reach its decision to deny his petition. 

	e.  A response letter, dated 26 April 1994, from the Director of the ABCMR noted the applicant's objection, explained the Board's process, addressed his issues, and denied his request for reconsideration.

	f.  An article titled the "America's Doomsday Project" published in U.S. News and World Report on 7 August 1989, describing scenarios to cope with a nuclear attack, how the Government would continue functioning, and the secret role of DMSPA.

	g.  An internet article, dated 18 April 1994, from the NY Times, which describes the Pentagon's decision to shelve an antiquated project of the Cold War, related to a secretive program called "Continuity of Government or COG" related to sustaining a nuclear attack on Washington DC.

	h.  A self-authored collection of speeches, interviews, articles, and historical contexts related to a secretive Government agency and the mismanagement of funds. 

	i.  A listing of board members during the 1990 Colonel ACC Promotion Board.

	j.  A printout of a DOD review of various military boards of correction.

	k.  A letter, dated 27 November 1990, to a GO soliciting his help with promotion and/or OER appeal. 

	l.  A letter, dated 28 March 1989, confirming his assignment as a detailed Inspector General. 

	m.  A printout confirming his special assignment and contracting officer representative training.

	n.  An undated memorandum from his former senior rater wherein he states that national security restrictions precluded him from describing the applicant's duties, responsibilities, and accomplishments. 

	o.  A memorandum, dated 22 December 1989, from two officers to the Board for Correction of Air Force Records regarding another individual and a letter, dated 2 February 1990, from the Board for Correction of Air Force Records - Appeals and Evaluations returning that individual's appeal request.

	p.  A letter, dated 26 April 1988, from another individual to DA appealing his OER.

	q.  Two printouts/diagrams describing the PM's reporting chain and the operations concept for the acquisition system.

	r.  A memorandum for record, dated 9 December 1987, regarding the minutes of a meeting with Army Acquisition Executive. 

21.  Title 10, U.S. Code, section 616 (Recommendation for promotion by selection board) states a selection board convened under section 611(a) of this title shall recommend for promotion to the next higher grade those officers considered by the board whom the board, giving due consideration to the needs of the armed force concerned for officers with particular skills (as noted in the guidelines or information furnished the board under section 615(b) of this title), considers best qualified for promotion within each competitive category considered by the board.  Except as otherwise provided by law, an officer on the active-duty list may not be promoted to a higher grade under this chapter unless he is considered and recommended for promotion to that grade by a selection board convened under this chapter.  The recommendations of a selection board may be disclosed only in accordance with regulations prescribed by the Secretary of Defense.  Those recommendations may not be disclosed to a person not a member of the board (or a member of the administrative staff designated by the Secretary concerned to assist the board) until the written report of the recommendations of the board, required by section 617 of this title, is signed by each member of the board.

22.  Army Regulation 624-100 (Promotions of Officers on Active Duty), in effect at the time, prescribed the policies and procedures for promotion of commissioned officers on the active duty list.  It states:

	a.  Commissioned officers were recommended for promotion by their commanders, and were selected by centralize (service-wide) promotion boards, who made promotion determinations based upon the officers' promotion records. There are basically three promotion opportunities below-the-zone, in-the zone, and above-the-zone.  Most promotions occur in-the-zone.  Those not selected 
in-the-zone have one more chance, a year later -- above-the-zone (the selection rate for above-the-zone is extremely small.  The two most significant factors in an officer's promotion records are inarguably their fitness report(s) and level of responsibility in their current and past assignments. 

	b.  SSB's are convened to consider commissioned officers for promotion when the HQDA discovers that an officer was not considered in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time there was a reasonable chance the individual would have been recommended for promotion.  An officer will not be considered or reconsidered for promotion by a SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.  An officer will also not be considered or reconsidered for promotion by a SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be promoted to COL.

2.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions.

3.  It is unfortunate that the applicant was not selected for promotion to COL while he was on active duty; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

4.  His contention that the lack of otherwise classified information may have served as the basis for his non-selection is speculative at best.  Not only were his records, including classified addenda he submitted at the time, considered by an SSB, it is a well-known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  

5.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

6.  In view of the facts of this case, he is not entitled to 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)                                         AR20100015139



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ABCMR Record of Proceedings (cont)                                         AR20100015139



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