IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20100022165 


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 reconsideration for promotion to captain (CPT) by a Special Selection Board (SSB). 

2.  The applicant states, in effect, that he was passed over twice for promotion by the 2009 and 2010 Army Medical Department (AMEDD) CPT Reserve Components Selection Board (RCSB).  He adds that his Officer Evaluation Reports (OERs) for the rating periods between 2008 and 2009 were not processed in time to be placed in his Official Military Personnel File (OMPF), or considered by the promotion board, due to no fault of his own.  Additionally, he states the OERs contained administrative errors, which he attempted to have corrected through his chain of command on numerous occasions, but he was not successful, due to his security clearance and common access card.

3.  He provides:  

* An undated letter, issued by Headquarters, U.S. Army Reserve Command (USARC)
* A letter, issued by the U.S. Army Human Resources Command (HRC), dated 13 September 2009
* DA Forms 67-9 (OERs) for the periods 20071217 through 20081216, 20081217 through 20091216, and 20091216 through 20100613
* An OER Error Report issued by the HRC OER Branch, dated 23 June 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve Commissioned Officer of the Army in the rank of first lieutenant (1LT)/O-2, on 17 December 2007.

2.  An HRC OER Error Report, dated 23 June 2010, shows the:

* OER for the rating period 20071217 through 20081216 was rejected due to missing the rated officers signature and duplicate potential for promotion
* OER for the rating period 20081217 through 20091216 was not senior rater profiled due to administrative gimmicks on the report

3.  In a memorandum from the USARC, dated 10 June 2010, the applicant was notified that he was not selected for promotion a second time.  The memorandum further stated "The purpose of this memorandum is to provide further information concerning options available to you as a result of your recent consideration for promotion.  Reserve officers not selected for promotion are considered again by a selection board approximately 1 year later.  If they are not selected on this second consideration, they must be separated not later than the 1st day of the 7th month following the President’s approval of the board results."

4.  A letter from the, HRC, Chief, Department of the Army (DA) Promotions, dated 13 September 2010, informed the applicant’s State Representative that he was considered, but non-selected, for promotion by the 2009 and 2010 AMEDD CPT RCSB.  In accordance with Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) two time non-selects must be removed from active status.  The Chief, DA Promotions added that the applicant was eligible to be considered for promotion by a DA SSB under the 2009 criteria.  Army policy requires that evaluation reports must be administratively correct and received at the USAHRC by the due date identified in the selection board notice.

5.  The Chief, DA Promotions stated “Even with the errors on [Applicant’s] 2008 OER it was not received by HRC until after the board ended.  [Applicant’s] 2009 OER was also received several months after the close of the Army Reserve Components CPT AMEDD Selection Board.  However, officers previously not selected for promotion must receive an evaluation prior to the next selection board.  Due to omission of this evaluation he is eligible for consideration for promotion by a DA Special Selection Board under the 2010 criteria.”  The Chief, DA Promotions added that the Assistant Secretary of the Army for Manpower 

and Reserve Affairs directed that the practice of granting SSB's for “former officers” without direction from the Army Review Boards Agency (ARBA) was discontinued.  If a former officer was selected by an SSB it was at the discretion of the Secretary of the Army via ARBA to determine if the discharge/retirement order should be revoked, the officer returned to active status, and promoted provided the officer meets all promotion requirements.

6.  On 1 November 2010, he was honorably discharged from the USAR.

7.  The applicant’s OMPF shows OERs for the rating periods 20071217 through 20081216 and 20081217 through 20091216 that were processed through the HRC OER Branch and senior rater profiled.

8.  On 23 April 2011, an advisory opinion was obtained in the processing of this case from the USARC, Deputy Chief of Staff, G-1.  The recommendation was denial of the applicant’s request, because he was properly considered for promotion by the 2009 AMEDD CPT RCSB, but he was not selected and the 2010 AMEDD CPT RCSB concluded the same.  The results of the promotion boards are identified as either educationally qualified or no reason given.  The applicant's results were identified as no reason given and there was no way to know that a lack of evaluations alone was the reason for non-selection.  However, the Deputy Chief of Staff, G-1, added based upon AR 135-155, paragraph 3-19e, the applicant may meet the requirements of a promotion reconsideration board.

9.  The applicant was furnished a copy of this advisory opinion.  He responded, in effect, that he lived 3,090 miles from Fort Snelling, MN and he had no immediate access to the people he needed to get things done.  

10.  AR 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard and of commissioned and warrant officers of the USAR. Chapter 3 outlines board schedules and procedures.  Paragraph 3-4 provides guidance on notices of consideration.  It states, in pertinent part, that the notice of consideration will be dispatched at least 90 days before the convening date of the board.  Officers will be directed to review their records and submit copies of missing documents or other corrections.

11.  Paragraph 3-19 of the promotions regulation contains guidance on promotion reconsideration boards.  Paragraph 3-19e states that in order to find a material error, the Office of Promotions must make a determination that there is a 

fair risk that one or more of the following circumstances was responsible:  (1)  The record erroneously reflected that an officer was ineligible for selection for 
educational or other reasons.  In fact, the officer was eligible for selection when the records were submitted to the original board for consideration; (2) one or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3) one or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4) one or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5) another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6) an adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7) the Silver Star or higher award was missing from an officer's OMPF; or (8) an officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.

12.  Paragraph 3-19 of the promotions regulation also contains the following list of factors that will normally result in a material error determination:  (1)  Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used; (2) an administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF, or the officer could have taken timely corrective action; and (3) letters or memorandums of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. 

13.  Paragraph 3-20 contains guidance on information provided to SSBs.  It states that a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board.  Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by an SSB.  The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board. 

14.  DA Memorandum 600-4 (Policies and Procedures for Reserve Components Officer Selection Boards), Appendix A, Section II, states a board will identify fully-qualified officers from among those under consideration.  If promotions are to be made from best-qualified officers only, the board will then tentatively identify officers who are considered best qualified for promotion based upon the 

maximum number of selections stipulated in the convening authority's memorandum to the board.  The number of officers whose names appear on the final selection list will not exceed the maximum selection capability specified in the memorandum of instructions.  At the conclusion of the deliberative process, the board will conduct a formal vote to ensure that no officer is recommended as best qualified for promotion unless he or she receives the recommendation of a majority of the members of the board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reconsidered for promotion to CPT by an SSB.

2.  The available evidence shows that at the time the 2009 AMEDD CPT RCSB convened the applicant's OMPF contained a material error in the form of a missing OER.  The available evidence also shows the applicant attempted to resolve the OER issues with his chain of command prior to the date the promotion board convened; however, he was unsuccessful.  

3.  The available evidence further shows the applicant ultimately resolved the missing OER issue and subsequently requested consideration by an SSB; but, his request was denied because it was determined his OERs were not the basis for non-selection.

4.  It is acknowledged that the governing regulation gives the Office of Promotions the authority to determine whether there is a fair risk that one or more of the missing OERs that should have been seen by a board was the reason for the applicant's non-selection.  However, based upon the guidance in 
DA Memorandum 600-4 it appears that a promotion selection board would be the best judge of whether or not the missing OERs rendered the applicant only fully qualified rather than best qualified.

5.  The advisory opinion provided by the USARC, Deputy Chief of Staff, G-1, noted based on AR 135-155, paragraph 3-19e, the applicant may meet the requirements of a Promotion Reconsideration Board.  It appears that at the time the applicant's file was considered for promotion he was disadvantaged by the absence of one OER.  It is therefore concluded in the interest of justice and equity that it would be appropriate to grant the applicant's request for promotion consideration to CPT by an SSB under the appropriate promotion criteria.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

__X_____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  submitting the applicant’s records to a duly constituted SSB for consideration for promotion to CPT under the 2009 or, if necessary, the 2010 AMEDD CPT RCSB criteria; 

	b.  if the applicant is selected for promotion his records should be further corrected to reinstate him in the USAR, effective 1 November 2010;

	c.  if the applicant is selected for promotion his records should be further corrected by promoting him to CPT based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes; 

	d.  if the applicant is selected for promotion his records should be further corrected by removing all documents relating to the previous non-selection for promotion to CPT; and 

	e.  if not selected, the applicant be so notified.



      __________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)                                         AR20100022165



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ABCMR Record of Proceedings (cont)                                         AR20100022165



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