IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100015344 


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 correction of his military records to show that he was reinstated on the Fiscal Year (FY) 2007 Colonel Army Standing Promotion List, promoted to colonel/pay grade O-6 with back pay, and placed on the senior service college/fellowship list as either a principal or high alternate.

2.  The applicant states he was selected for promotion to colonel in FY 2007.  He was subsequently removed from the promotion list based on a referred DA Form 67-9 (Officer Evaluation Report (OER)) rendered for the period 7 June 2007 through 28 June 2007.  The Army Special Review Board (ASRB) determined the OER was inaccurate, unjust, and flawed.  The ASRB directed the removal of this OER from his official military personnel file (OMPF) by unanimous vote.

3.  The applicant provides copies of his OER appeal with enclosures; ASRB Record of Proceedings; and a memorandum, dated 24 May 2010.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a lieutenant colonel/pay grade O-5, Infantry, serving in the Regular Army.

2.  The applicant's referred OER for the period 7 June 2007 through 28 June 2007 shows:

	a.  he was a battalion commander of a 980-man infantry task force that was forward deployed to Kirkuk, Iraq;

	b.  he was relieved for cause due to not setting the example of ethical behavior and establishing the command climate necessary for a unit to perform to standard in combat; and

	c.  his failure resulted in major ethical lapses in his battalion and he was relieved due to a lack of confidence.

3.  A Department of the Army Promotion Selection Board which recessed on 31 July 2007 recommended the applicant for promotion to colonel, pay 
grade O-6.

4.  On 27 November 2007, the applicant was notified that based on receiving a referred OER after the convening date of the FY 2007 Colonel Army Promotion Board, his records were referred to a Promotion Review Board (PRB).  The applicant acknowledged receipt of this action on the same day.

5.  A memorandum from the Deputy Chief, Promotions, dated 12 August 2008, informed the applicant that:

	a.  On 4 March 2008, the PRB reviewed the applicant's entire OMPF along with the referred OER to determine whether he should be retained on the FY 2007 Colonel Promotion List.

	b.  Additional information provided by the applicant, dated 9 May 2008 and 12 June 2008, including correspondence from the Trial Defense Service, dated 28 April 2008 and 11 June 2008, with sworn testimony from two courts-martial proceedings, has been provided by the applicant [to the PRB] for the Secretary of the Army's consideration.

	c.  Further information in addition to the applicant's post-PRB submissions, which included an electronic mail (e-mail) message from his senior rater, dated 20 June 2008, was not provided to the PRB.  The e-mail stated, in essence, that his senior rater had lost confidence in him as a result of the incident involving the death of an Iraqi and due to his earlier conduct around Soldiers when dealing with detainees.  The brigade commander had counseled him in writing.  The applicant was provided this information and given an opportunity to review and submit comments.

	d.  He had 48 hours to sign and return the acknowledgment and 14 days from receipt of the correspondence to submit comments to the Secretary of the Army.

	e.  A majority of the members of the PRB recommended retention of the applicant on the FY 2007 Colonel Army Standing Promotion List.

6.  On 13 August 2008, the applicant acknowledged receipt of the 12 August 2008 memorandum discussed in the preceding paragraph.  He also stated that he intended to submit matters [in rebuttal].

7.  On 27 August 2008, the applicant submitted a memorandum to the Secretary of the Army responding to the pending review of his promotion.  He made the following comments:

	a.  The e-mail response to the Chief of Staff, Army (CSA) request for information to substantiate the adverse action taken against him failed to satisfactorily resolve the discrepancies properly noted by the CSA.  The e-mail offers nothing in the form of proper evidence to support his removal from the promotion list because no such evidence exists.

	b.  The applicant objected to the consideration of this e-mail response and any implication inherent in it because there is nothing in it that could not have been practicably submitted to the PRB.  The regulations governing the processing of OER's and promotion boards require only the use of verified derogatory information in referred OER's and limit consideration of additional information to that which was practically unavailable at the time of the board.  Otherwise, commanders would be free to offer counter explanations without the need for substantiating evidence and inflict upon aggrieved officers a burden of proof impossible to meet.

	c.  The applicant submitted that the e-mail reference to a written counseling statement was an unfortunate red herring and further indicated that the available evidence was not reviewed prior to taking action.  He asked that the Secretary's decision be based on the evidence presented rather than implication and innuendo.

	d.  The applicant believes that he was relieved of command without the benefit of the deliberate and sober consideration of available evidence necessary to ensure a proper resolution and fair treatment under the circumstances.

	e.  The applicant's response to the e-mail comment, "I lost confidence in him as a result of the incident involving the death of an Iraqi," was that he ordered medical treatment and evacuation of the insurgent when he arrived on the scene.

	f.  The applicant's response to the e-mail comment, "He was on sight [sic] of the incident and I believe he should have been aware of what was happening," was that at the time he was outside of the village, some 200-300 meters away.  He was properly positioned to command and control the overall engagement with more than two companies and brigade assets involved in the operation.  He did not witness the actions of the scout platoon on the objective.  He maintained constant radio communications with all units.  Under the circumstances, he could not have been any more aware of what was precisely happening inside the residence than anyone else on the perimeter.

	g.  The applicant's response to the e-mail comment, "This incident coupled with another that he had been counseled in writing by the brigade commander…for his conduct around Soldiers when dealing with detainees were key in my decision.  That counseling took place several months before the incident which I relieved him," was that he had reported an incident in November 2006 that could have been perceived as detainee abuse on the part of the Iraqi Army.  An investigation was initiated and all allegations against U.S. military personnel were found to be unsubstantiated.  In spite of the findings, he was given a letter of concern.

	h.  The applicant's response to the e-mail comment, "I gave him formal letters advising him of the reason for relieve [sic]," was that the only formal letter was a memorandum of acknowledgment that he signed on 27 June 2007, after he was relieved.

	i.  The applicant's response to the e-mail comment, "All of this documentation was reviewed by…during [applicant's] appeal of the relief-for-cause OER," was that the OER and his rebuttal had been reviewed.  He had not yet appealed the relief-for-cause OER.

	j.  The applicant stated that he was never the subject of the investigation or titled by the Criminal Investigation Command in this case.  There is no verified derogatory information in his records.  Absent such evidence, the e-mail reference to such derogatory evidence is an improper substitute for judgment based upon procedurally reliable verification of facts.

8.  On 12 November 2008, the applicant was informed by memorandum from the Chief, Promotions, U.S. Army Human Resources Command, that the Secretary of the Army had decided to remove his name from the promotion list.

9.  On 29 April 2010, the ASRB determined the evidence submitted was sufficient to warrant relief because the command had violated the fundamental concept of due process.  His relief was based on incomplete and unsubstantiated information.  Accordingly, the ASRB determined that the referred OER for the period 7 June 2007 through 28 June 2007 should be removed from the applicant's OMPF.  The ASRB further determined that a memorandum should be inserted in the applicant's OMPF annotating the period 7 June 2007 through 28 June 2007 as nonrated time.

10.  In a separate letter to the Board, the applicant restates much of what is presented above.  He also contends that the sole basis for his removal from the promotion list and a subsequent non-selection for attendance at the senior service school was the referred OER.  In essence, he argues that because the OER has been removed from his OMPF, he should now be promoted and selected for schooling.

11.  Army Regulation 600-8-29 (Officer Promotions), chapter 8 (Promotion Review Boards) states that Headquarters, Department of the Army (HQDA) will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. 

	a.   An officer may be referred to a PRB for a number of reasons to include when derogatory information is received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.  

	b.  The Deputy Chief  of Staff, G-1(Personnel) or a designee (normally the Director of Military Personnel Management) is authorized to refer cases to a PRB except those involving promotion to or within general officer grades.  Before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board.  

	c.  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB.  The PRB’s recommendation is only advisory to the Secretary of the Army.  In cases involving promotions to or within general officer grades, the board report will be sent through the Chief of Staff of the Army to the Secretary of the Army who will forward the report with an appropriate recommendation through the Secretary of Defense to the President. 

	d.   An officer who is removed from a promotion list continues to be eligible for consideration for promotion.  Officers considered by a PRB will be informed of the results, in writing, through their chain of command.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he was reinstated on the FY 2007 Colonel Army Standing Promotion List, promoted to colonel/pay grade O-6 with back pay, and placed on the senior service college/fellowship list as either a principal or high alternate.

2.  The governing regulation clearly provides that HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.  Accordingly, an officer may be referred to a PRB for a number of reasons to include when derogatory information is received by HQDA but not filed in the OMPF.   

3.  The available evidence clearly shows the catalyst for the initiation of the action to remove the applicant's name from the colonel promotion list was the referred OER.  However, the Secretary of the Army made the decision to remove his name based on the applicant's entire record, which included adverse information other than the referred OER.  Simply removing the referred OER is not sufficient to overturn the Secretary's decision.

4.  There is no evidence or error or injustice in this case. 

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100015344



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ABCMR Record of Proceedings (cont)                                         AR20100015344



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