IN THE CASE OF:	  

		BOARD DATE:	26 August 2010

		DOCKET NUMBER:  AR20100018533 


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, through a court remand, reconsideration of his earlier request for correction of his military records to remove DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 December 2003 to 22 June 2004; removal of nonreferral documents pertaining to the 2005 and 2006 unit vacancy promotion boards; removal of nonselect documentation for the 2007 and 2008 Department of the Army (DA) Mandatory Promotion Board for Major; promotion consideration with a date of rank as if promoted by the 27 September 2005 U.S. Army Reserve Component Unit Vacancy Board; and a letter of nonrated time for the period covered by the OER listed above.

2.  The applicant states, in effect, that he has additional documentation that should be considered.

3.  The applicant provides copies of DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 11 June 2009; Orders 127-0008, U.S. Army, Fort Dix, New Jersey, dated 7 May 2009; Orders 139-0005, U.S. Army, Fort Dix, New Jersey, dated 19 May 2009; ARPC Form 249-E (Chronological Statement of Retirement Points) dated 18 May 2010; OER's for the periods         8 April to 21 November 2008 and 22 November 2008 to 21 April 2009; DA Form 4980 (Certificate for award of the Meritorious Service Medal) showing Permanent Orders Number 049-024, dated 18 February 2009; and Memorandum, U.S. Army Human Resources Command, dated 9 July 2008 with enclosures 1 (Membership), 2 (Memorandum for President and Members), and 5 (MAJ JAG RC Selcon). 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080016454, on 25 June 2009.

2.  On 12 July 2010, the United States Federal Court of Claims directed that the Board reconsider its decision in this case in light of new evidence presented by the applicant.

3.  All of the additional documents submitted by the applicant are for events that occurred after the date of his application dated 5 October 2008.  As such, they were not previously considered by the Board.  They now require consideration.

4.   The Record of Proceedings, dated 25 June 2009, considered the applicant's contentions that the contested OER should be removed and be replaced with a letter of nonrated time.  The Board determined that:  

	a.  the OER had been provided to the applicant on two occasions for the opportunity to rebut, which he elected not to do;

	b.  the applicant had not provided any evidence showing that the OER contained anything other than the considered opinions and objective judgment of the rating officials at the time of preparation;

	c.  the applicant had not provided sufficient evidence to show his rating chain was incorrect;

	d.  there was no evidence showing the actual ratings were flawed, in error, or factually incorrect;

	e.  there was no evidence showing the nonreferral documents for the 2005 and 2006 unit vacancy boards were inaccurate or unjust;

	f.  there was no evidence showing the nonselect documentation for the 2007 and 2008 DA Mandatory Promotion Boards for Major was inaccurate; and

	g.  there was no basis for granting the applicant's request for promotion consideration to major based on the correction of administrative errors in the OER by the Officer Special Review Board.  


5.  The applicant has provided the following evidence.

	a.  His DD Form 214 for the period from 8 May 2008 to 11 June 2009 shows he served the majority of this time in Iraq.  He was released from active duty upon completion of his required active service.  Orders 127-0008, Fort Dix, dated 7 May 2009, as amended by Orders 139-0005, dated 19 May 2009, changed his release date to 9 June 2009 and terminated his eligibility for transitional health care on 6 December 2009.

	b.  ARPC 249-E dated 18 May 2010 reports that he had 21 years, 04 months, and 5 days of qualifying service for a non-regular retirement.

	c.  OER for the period ending on 21 November 2008 shows he served as the Brigade Judge Advocate with the 304th Civil Affairs Brigade.  The rater evaluated his performance as outstanding and recommended that he must be promoted.  The senior rater evaluated him as the best qualified.  No profile was indicated.

	d.  OER for the period ending on 21 April 2009 shows that he was still the Brigade Judge Advocate with the 304th Civil Affairs Brigade and received the same level of evaluation for his duty performance from the same rater and senior rater shown on his previous OER discussed above.

	e.  DA Form 4980, dated 18 February 2009, shows that he was awarded the Meritorious Service Medal for exceptionally meritorious service during Operation Iraqi Freedom from 14 June 2008 to 21 April 2009.

	f.  The Memorandum, U.S. Army Human Resources Command, dated 9 July 2009, reports that a promotion board convened on 10 March 2008 to consider captains for promotion to major, Judge Advocate General's Corps, U.S. Army Reserve Components.  The board adjourned on 14 March 2008.  Enclosure 5 shows that the applicant was considered but not recommended for promotion.

6.  On 3 September 2009, the Board reconsidered in Docket Number AR20090010536 an earlier application summarized in Docket Number AR2002066315, on 24 September 2002.  These cases dealt with the related issue of the applicant's promotion to captain in 2001.

	a.  The applicant requested that his date of rank for captain be changed from 11 May 2001 to 15 June 2000.

	b.  The Board found that the applicant had been held to the requirements of a version of Army Regulation 135-155 (Army National Guard and Army Reserve Appointment of Officers and Warrant Officers of the Army) which was not in effect at the time of his selection by a Position Vacancy Board.  As a result, the Board determined that his records should be corrected to show his date of rank for captain as 15 June 2000 and that his records be submitted for consideration by an appropriate Special Selection Board (SSB) for promotion to major.

7.  Records show that the applicant's records were considered by an SSB in April 2010, but the results are not yet available.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his earlier request for correction of his military records to remove an OER for the period 1 December 2003 to         22 June 2004; removal of nonreferral documents pertaining to the 2005 and 2006 unit vacancy promotion boards; removal of nonselect documentation for the 2007 and 2008 DA Mandatory Promotion Board for Major; promotion consideration with a date of rank as if promoted by the 27 September 2005 U.S. Army Reserve Component Unit Vacancy Board; and a letter of nonrated time for the period covered by the OER listed above.

2.  The additional documents provided by the applicant do not show that the Board's determination in the earlier case was flawed or resulted in error or injustice.

3.  The additional documents show that the applicant's performance of duty subsequent to the contested OER was outstanding and that he had received an award for meritorious service.  This additional evidence does not show the rating/comments in the contested OER were incorrect or unjust.

4.  As no basis for relief exists for the contested OER, there is no basis on which to grant the applicant's request to remove documents from his 2005/2006 unit vacancy board, remove nonselect documents from the 2007/2008 USAR mandatory promotion boards for major or to grant him promotion consideration by an SSB (mandatory promotion board to major), or promotion consideration with a date of rank as if promoted by the 27 September 2005 Army Reserve Component Unit Vacancy Board.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080016454, dated 25 June 2009.



      __________XXX__________
               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)                                         AR20100001188



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ABCMR Record of Proceedings (cont)                                         AR20100018533



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