IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100024016 


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 of his original request for correction of his military records as follows:

	a.  Reinstatement on the Fiscal Year 2007 (FY07) colonel (COL)/O-6 Army Promotion List (APL) as originally selected.

	b.  Promotion to COL with back pay and allowances. 

	c.  Placement on the Senior Service College (SSC)/Fellowship list as either principal or high alternate 

	d.  In the alternative, he requests, consideration by a special selection board (SSB) for selection to the FY07 APL, recreating the proper record, or consideration by the FY08 SSB and, if selected by the FY08 SSB, be granted the same date of rank (DOR) had he not been removed from the original APL, or, if necessary, consideration by the FY09 SSB.

	e.  The removal of all Promotion Review Board (PRB) and Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) and associated records/documentation from his Official Military Personnel File (OMPF) 

	f.  To the extent the ABCMR is unable to grant relief, forward his case to the Secretary of the Army (SA).

	g.  Assignment of a new analyst by the ABCMR to work his case without consulting with the original analyst.

	h.  A legal review of his case by the Army Review Boards Agency (ARBA) senior legal advisor.

	i.  Consideration of the SA's letter, dated 5 March 2009, to Mr. JBT (Civilian aide to the SA).

	j.  The ABCMR consider only the evidence of record.

	k.  A personal hearing

2.  The applicant states he was selected for promotion to COL and later removed from the FY07 APL based on a legally and materially deficient referred Officer Evaluation Report (OER) covering the period 7 June 2007 through 28 June 207.  He appealed the OER to the Army Special Review Board (ASRB) which directed its removal as well as the removal of any related investigations.  He was subsequently removed from the promotion list based on a referred OER.  At a later date, the ASRB determined the OER was inaccurate, unjust, and flawed and directed its removal from his OMPF.  Specific information presented for consideration in the ABCMR ROP was legally, materially and procedurally deficient.  An objective review of this information—along with review of procedurally proper and additional evidence not previously considered—establishes error and injustice that warrants relief and correction of records.  Additionally, the proceedings procedurally failed to address his complete request to the board, as noted in his memorandum dated 24 May 2010.

	a.  For the Board to make a decision on behalf of the SA using information that was considered substantively unsupported and directed to be removed is legally improper, violative of due process and, in this case, resulted in an arbitrary and capricious decision made without rational basis and without foundation in law.  Paragraph 3-2 of Army Regulation 600-37 (Unfavorable Information) states "unfavorable information filed in official personnel files must meet Privacy Act standards of accuracy, relevance, timeliness, and completeness.  Specific entries found in the ABCMR ROP are legally, materially and procedurally deficient.  As such, these entries are insufficient and unsuitable to support the Board determination and recommendation previously made in this case. 

		(1)  The Consideration of Evidence segment, pages 1-5 of the ABCMR ROP, are inundated with the very same unverified derogatory information that the Deputy Assistant SA and Director of the Army Review Boards Agency (ARBA), had just 90 days earlier determined to be inaccurate, unjust, or otherwise flawed and violated the fundamental concept of due process based on incomplete and unsubstantiated information and approved its removal in the ASRB ROP, dated 29 April 2010.  Contrary to the legal review of the ABCMR ROP, the information obtained by the PRB did not concern "other misconduct"; rather, it was the same unsubstantiated generalizations and unsupported assumptions that had been proven false and ordered removed.  Army Regulation 600-8-29 (Officer Promotions) prohibits some of the analysis in the ABCMR's ROP.  There are specific provisions designed to guard against the consideration of information contained in OER, by promotion boards or otherwise, that have been determined to be both substantively inaccurate and violative of due process, and removed from the OMPF.  Board members are not allowed to consider such information and such information cannot be legally presented to a promotion board.  Simply stated, the relief OER was found to be substantively and legally defective.  It is unreasonable, legally improper, and against Army policy to revive it through an email communication [the email from Major General (MG) BRM (his senior rater and Commanding General (CG), 25th Infantry Division) to the VCSA] to the PRB that is similarly based upon an unfounded and improper belief: 

			(a) Paragraph 2, paragraph 5c and the majority of paragraph 7 contain information that has already been considered, examined or dismissed as part of the ASRB ROP and are not within the realm of consideration for this proceeding. It is legally, materially and procedurally deficient to include information that has been proven to be inaccurate, unjust and flawed.  As required by Army Regulation 15-185 (ABCMR), paragraph 2-2c, the ABCMR considers only the "evidence of record," not evidence that was removed from official records, in either original or substituted form, because of substantive error.

			(b)  Paragraph 11 is a collection of paraphrased sentences from Army Regulation 600-8-29 and does not directly contribute evidence to the conclusion or recommendation.  Implying that he is somehow mentally, physically, morally or professionally unqualified to perform his duties is a capricious and arbitrary assumption made without rational basis and is simply wrong.  In fact, he had been serving in COL positions at Fort Benning, GA, for the past 2 years and all lieutenant colonel (LTC) evaluations in his file recommend promotion to COL. Multiple evaluation reports state that he demonstrates General Officer potential.  His most recent "above center mass" (the highest rating one may obtain) OER dated 23 June 2010 is while serving in a COL's position as the Assistant Commandant of the U.S. Army Infantry School.  His chain of command certainly believes he is capable of serving at the rank of COL.  He fails to see how the analyst who prepared the ABCMR ROP can wrongly interpret and imply that he is not. 

		(2)  The Discussions and Conclusions segment on page 6, fails to provide consideration of proper available and relevant evidence necessary to ensure accurate resolution on which to base a decision.

			(a)  Paragraph 2, Discussion and Conclusions, is materially incorrect and is an abbreviated and restated version of paragraph 11 in the Consideration of Evidence segment.  It offers no evidence or factual information to support the board’s recommendation and decision.  The last sentence of the paragraph, like paragraph 11a, wrongfully implies he was referred to the PRB for reasons other than a referred OER.  This is untrue.  The memorandum dated 27 November 2007 from Promotions Branch, Subject: Referral to a PRB, clearly states in paragraph 3 the reason for referral is a referred OER after the convening date of the FY07 COL promotion board.  To manufacture evidence and misrepresent passages of official documents is misconduct of the highest order.  These types of errors add to the overall deficiencies of the ABCMR ROP and should have been identified during legal sufficiency reviews as well.  This is why he has requested both a new analyst and legal reviewer.

			(b)  Paragraph 3, Discussion and Conclusions, states "the SA made the decision to remove his name based upon the applicant’s entire record."  This too is inaccurate and materially unfair.  The PRB in a memorandum to the Secretary, dated 4 March 2008, recommended retention and used the exact verbiage of "[a]fter reviewing his overall record, a majority of the members of this board recommends that [Applicant] be retained on the FY07 COL APL" and "the officer’s overall performance as demonstrated in his file does not warrant removal."  He was selected for promotion and recommended for retention on the promotion list based upon his entire record, not the opposite. The analyst incorrectly and unjustly implies that an inadequate overall performance record contributed to removal.  That implication is misleading and legally insufficient, and again, is why he has requested a new analyst and legal reviewer be appointed.

			(c)  Paragraph 3, Discussion and Conclusions, continues with "which included adverse information other than the referred OER."  The analyst is referring to an email from the senior rater dated 20 June 2008.  As supported by the regulations cited above, this reference to adverse information is legally insufficient and wrong; it suggests that unsubstantiated unverified information, violative of due process, can be used to form the basis of a legal and binding decision within ARBA.  Additionally, to rely on the unsupported generalizations of the senior rater without including either his response or the detailed ASRB findings (especially when compared to the senior rater’s single paragraph conclusory email) is improper, intellectually disingenuous, and materially misleading.  Again, assigning a new analyst and legal reviewer is appropriate. 
				(1)  The question from the Chief of Staff of the Army to the senior rater states "[w]e can’t tell from this (packet) why the officer was relieved," and requested he provide additional information.  The senior rater could not substantiate the adverse information and provided nothing in the form of proper evidence to support his statement, and it was proven substantively false.  As the ASRB has determined, there is no evidence that exists to support such a statement, and much to refute it.  As noted above, Army regulations protect against such subsequent and ambiguous comments by requiring only the use of verified derogatory information contained in the OMPF.  It has already been clearly established that the relief, the evaluation and the actions taken by the senior rater were inaccurate, unjust and legally flawed.  The ASRB determined that the relief from command violated the fundamental concept of due process, and was based upon incomplete and unsubstantiated information.  Additionally the ASRB determined that all associated appeal documentation and any directly related investigations or inquiries relating to the evaluation report in question be removed from his OMPF.  The ASRB ROP already examined and considered this very same email and found it to be without merit.  

				(2)  The senior rater’s email is equivalent to a Taliban Night Letter, sent to tribal elders attempting to persuade them not to support a democratic process.  A democratic process that consisted of an independent and neutral review board that recommended his retention on the promotion list.  The senior rater used inappropriate command influence outside the bounds of the PRB proceedings to influence the Secretary’s decision (Army Regulation 600-8-29, paragraph 1-33c (4) & (5)).  This very same individual was recently publically admonished by the Secretary of Defense and the Chairman Joint Chiefs of Staff and given corrective counseling from the Chief of Staff, Army (CSA), and the SA for demonstrating poor judgment and for operating outside the bounds of established norms.  (See http://www.stripes.com/news/pentagon-rebukes-general-for-opposing-repeal-of-don-t-ask-don-t-tell-law-1.100302).  There are laws and regulations to protect against commanders who seek to elevate their personal beliefs over Army policy and the legal standards set by our society.  The ASRB recognized this and the ABCMR should do the same.

				(3)  The legal advisor wrongfully and arbitrarily states, devoid of any evidence, that the PRB obtained additional information from the senior rater concerning other misconduct while in Iraq.  This is false.  No where will the Board find verified derogatory information in his record.  No court of inquiry, no court-martial, no Article 15 proceedings, no Criminal Investigation Division or any other Department of the Army or Defense or civilian authority exists substantiating this alleged derogatory information.  The legal advisor's reference to misconduct is untrue and reckless.  Again, this is why a new legal reviewer is appropriate.  

			(4)  Paragraph 3, Discussion and Conclusions, continues with "simply removing the OER is not sufficient to overturn the Secretary's decision."  In addition, for the legal advisor to state that the SA did not rely upon the relief for cause OER when making his decision is an invalid premise made without justification or evidence.  The board was to submit its recommendation based upon the individual merits and proper evidence of the case and demonstrate consistency by referring to the most recent decision rendered.  To simply fall back upon former decisions where the basis was proven to be unsubstantiated is materially, legally and procedurally deficient.  As noted above, it also ignores the direction of the SA contrary to Army Regulation 15-185, paragraph 2-14a.  The letter, dated 5 March 2009, from then SA, Mr. PG, to Mr. JBT, civilian aide to the SA, State of Tennessee, is evidence that the SA did in fact rely upon the OER when rendering his decision, disproving the legal advisor's irrational theory.  The SA presumed that all information brought to him was procedurally reliable, accurate and correct.  As the ASRB has determined, this was not the case.  When any information that contributed to his decision is found to be unsubstantiated and unreliable and in error, the Secretary authorizes the ABCMR to make corrections and to remove the error and injustice.  The Secretary’s letter properly and specifically states that should he "succeed on any or all of his administrative appeals, his records will be adjusted accordingly."  He would now like for the ABCMR to honor the Secretary’s statement as its governing regulation requires.

			(5)  In paragraph 4, Discussion and Conclusions it is readily apparent that the statement that there is no evidence or error or injustice in this case is unsupported and unfounded.  Particularly when just 90 days prior, the ASRB confirmed there was sufficient evidence that there was legal and substantive error and injustice in his case.

	b.  The ROP failed to mention the submitted letters of support, which serves as evidence of quality performance and potential.  One letter was from a Member of Congress and four were from General Officers.  Specifically, one letter is from MG JMB, who was a member of the rating chain in the referred evaluation and who supported removal of the evaluation and recommends promotion.  It is truly disappointing the analyst chose to omit certain elected officials and senior leaders, and as a substitute not only included but emphasized the only information equally determined to be without any legal or factual basis (the unsubstantiated input of the senior rater).

	c.  The system is designed to be self correcting and should set the record straight by a completely fair and impartial review of the facts.  Being removed or denied promotion is a disciplinary action according to the Promotions Branch Chief.  By being removed from the promotion list, he is being disciplined or presumed to be responsible for some type of alleged misconduct that never occurred.  The referred OER was the basis for referral to the PRB and subsequent removal from the FY 07 COL promotion list.  The ASRB determined the OER was substantively incorrect and violated the fundamental concept of due process. It was this OER and senior rater’s perpetuation of the unsubstantiated and unsupported information contained in it that resulted in removal from consideration for promotion and all the other accompanying adverse actions for which he seeks correction. 

3.  The applicant provides the following documents:

* Email exchange with the Director, ABCMR
* Previous ABCMR Record of Proceedings
* Previous ASRB ROP
* Memorandum of referral to the PRB
* PRB Action Memorandum
* Email exchange between MG BRM and Vice Chief of Staff, Army (VCSA)
* Memorandum to the SA, Subject: PRB Request for Additional Information
* Previous legal review by ARBA legal advisor
* Letter, from the SA to Mr. JBT
* Letter of support from a Member of Congress
* Four general officers letters of support

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not make a statement or submit additional documentary evidence.

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 ABCMR in Docket Number AR20100015344, on 29 July 2010.

2.  The applicant did not provide any new documentary evidence; however, he contended some of his issues were not previously addressed and provided a new argument, which was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he was appointed as an infantry second lieutenant in the U.S. Army Reserve with concurrent call to active duty on 23 October 1986.  He subsequently served in various staff and leadership 

positions, within and outside continental United States, and attained the rank of lieutenant colonel (LTC) on 1 March 2003.

4. On or about 7 June 2005, he was assigned as the battalion commander of the 2nd Battalion, 35th Infantry, 25th Infantry Division, HI.  He deployed to Iraq as a battalion commander during July 2006.  

5.  On 12 December 2006, he received a memorandum of concern from his rater (brigade commander) wherein COL PTS, the brigade commander, stated he was deeply concerned about the applicant's actions that had contributed to the perception among his battalion Soldiers that he tolerated or condoned the mistreatment of detainees.  The brigade commander cited a series of incidents or actions that appeared to be a severe lapse of judgment on behalf of the applicant.

6.  On 23 June 2007, an investigation began into allegations of violation of the Rules of Engagement (ROE) by members of Company A, 2nd Battalion, 35th Infantry, subsequent to a previous night's cordon and search mission at a local village in Iraq.  The allegation involved an incident of a forced entry into two buildings where insurgent suspects were hiding and that a platoon sergeant may have mistreated an unarmed detainee within his custody and control by physically abusing him or threatening to kill him.  The applicant was in a second building at the time of the alleged incident.

7.  On 28 June 2007, by memorandum, the CG, 25th Infantry Division, relieved the applicant from command.  He stated the action was based on his loss of trust and confidence in the applicant's ability to command his battalion in light of the incidents detailed in the letter of concern, dated 12 December 2006, and the incidents that occurred in the early morning hours of 23 June 2007 in the vicinity of Al Saheed Village, Iraq. 

8.  On the same date, he received a "Relief for Cause" OER, covering the rating period from 7 June 2007 through 28 June 2007, for his duties as a battalion commander.  His rater was the brigade commander, COL PTS, the intermediate rater was Brigadier General (BG) MJB, and his senior rater was MG BRM, CG, 25th Infantry Division (Light).  The OER was referred to him on 26 July 2007.  

9.  The OER shows 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 his failure resulted in major ethical lapses in his battalion and he was relieved due to a lack of confidence.

10.  On 21 August 2007, he submitted his rebuttal to the referred OER.  In his rebuttal, he provided a description of the tactical situation and enemy engagement on 22 June 2007.  He stated that he believed the incident may have been the cause of the relief of command.  Additionally, he requested his senior rater consider changing the OER and expressed his deep remorse for being forced to leave his Soldiers.

11.  On 9 September 2007, the CG, Multi-National Division-North, Lieutenant General (LTG) RTO conducted a supplementary review of the relief for cause OER and determined the OER together with the applicant's comments was clear, accurate, complete, and in accordance with the provisions of Army Regulation 623-3 (Evaluation Reporting System) and required no further comments from him.

12.  On 27 November 2007, the applicant was notified he was considered for and selected for promotion to COL by the Department of the Army Promotion Selection Board which recessed on 31 July 2007.  Along with this notification of selection, he was also notified (and acknowledged receipt) that in accordance with Title 10, U.S. Code (USC), section 624(d)(2) and Army Regulation 600-8-29 (Officer Promotions), chapter 8, the appointment of an officer may be delayed in any case in which there is cause to believe the officer is mentally, physically, morally, or professionally unqualified to perform the duties for which he/she was selected for promotion.  

	a.  A review of his file indicated he received a referred OER, after the convening date of the FY07 COL board.  

	b.  His records would be referred to a PRB which would recommend to the SA one or more of the following: retention on the promotion list, removal from the promotion list, show cause for retention on active duty.

13.  On 20 June 2008, by email to now LTG BRM, the VCSA stated when he and the CSA reviewed the PRB for the applicant, they noticed the packet did not include any information on why he (LTG BRM) lost confidence in the applicant (no relief for cause memorandum, no counseling).  All that was included were sworn statements from a CID investigation, the applicant's OER, and statements from the applicant.  The CSA wrote the following note on the packet and sent it back to the VCSA for action:  "We should resolve discrepancies between division leadership and officer.  We can't tell from this packet why the officer was relieved." 

14.  On 20 June 2008, by return email, LTG BRM stated "I lost confidence in him as a result of the incident involving the death of an Iraqi.  He was on sight of the incident and I believed he should have been aware of what was happening.  This incident coupled with another that he had been counseled in writing by the brigade commander, COL PTS, for his conduct around Soldiers when dealing with detainees were key in my decision.  That counseling took place several months before the incident for which I relieved him.  I gave him formal letters advising him of the reason for relief.  All of this documentation was reviewed by LTG RTO during [Applicant's] appeal to the relief for cause OER.  I will check with the legal folks at the 25th [Infantry Division] Staff Judge Advocate for the documents." 

15.  On 30 July 2008, by memorandum addressed to the DCS, G-1, the VCSA, stated the additional information provided by LTG BRM was submitted after the DCS, G1; the Assistant SA (Manpower and Reserve Affairs) (ASA (M&RA)), and he (VCSA) made their recommendation regarding the PRB. As a result, those recommendations were made without regard to the additional information submitted by LTG BRM.  He also stated since the applicant submitted additional information after the PRB made its recommendation, he recommended the DCS, G-1, re-staff this action and ensure inclusion of all of the additional information in his case, including LTG BRM's email to ensure all recommending officials are provided the same information when making recommendations in the matter and enable them to consider all relevant information in the case.

16.  On 12 August 2008, by memorandum, the Deputy Chief, Promotions, notified the applicant the following:  

	a.  On 4 March 2008, the PRB reviewed his entire OMPF along with the referred OER to determine whether he should be retained on the FY 2007 COL APL.

	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, had been provided by the applicant [to the PRB] for the SA's consideration.

	c.  Further information in addition to his post-PRB submissions, which included the email from his senior rater, dated 20 June 2008, was not provided to the PRB.  The email 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 SA.

	e.  A majority of the members of the PRB recommended his retention on the FY07 COL Army Promotion List.

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

18.  On 27 August 2008, by memorandum, submitted to the SA responding to the pending review of his promotion, he stated the following: 

	a.  The email response to the CSA request for information to substantiate the adverse action taken against him failed to satisfactorily resolve the discrepancies properly noted by the CSA.  The email offered nothing in the form of proper evidence to support his removal from the promotion list because no such evidence exists.

	b.  He objected to the consideration of this email response and any implication inherent in it because there was nothing in it that could not have been practicably submitted to the PRB.  The regulations governing the processing of OERs and promotion boards require only the use of verified derogatory information in referred OERs 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.  He submitted that the email reference to a written counseling statement was an unfortunate red herring and further indicated 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.  He believed 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.  His response to the email 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.  His response to the email 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.  His response to the email 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.  His response to the email 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.  His response to the email 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.  He stated that he was never the subject of the investigation or titled by the CID in this case.  There is no verified derogatory information in his records.  Absent such evidence, the email reference to such derogatory evidence is an improper substitute for judgment based upon procedurally reliable verification of facts.

19.  On 7 October 2008, the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G-1, submitted a staffing memorandum to obtain secretarial decision on the PRB's recommendation.  After a legal review by the Office of The Judge Advocate General for legal sufficiency, the staffing and approval record shows the following:
* DCS, G-1, recommended removal
* ASA (M&RA) recommended removal
* VCSA, recommended removal
* CSA, recommended removal


20.  On 10 November 2008, the SA ordered the applicant removed from the COL APL, and on 12 November 2008, he was informed by memorandum from the Chief of Promotions, U.S. Army Human Resources Command, that the SA had decided to remove his name from the promotion list.

21.  On 1 March 2009, he submitted an appeal of the relief for cause OER based on substantive inaccuracy.  He claimed the OER was unsupported by any evidence substantiating the derogatory remarks; the report was an inaccurate, unjust, and harmful evaluation of performance and potential; and was not rendered in accordance with Army regulations in effect at the time.

22.  On 29 April 2010, the ASRB determined the evidence submitted in support of his OER appeal 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 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 his OMPF annotating the period 7 June 2007 through 28 June 2007 as nonrated time.

23.  The complete PRB packet and allied documents are filed on the restricted section of his OMPF.  The allied documents consist of notification memorandum, rebuttal memoranda, action by PRB members, contested OER, referral memorandum, email exchange between VCSA and LTG BRM, memorandum of additional information, letter from the SA, excerpts of court documents, various letters of recommendation, sworn statements, staffing memoranda, and decision by the SA. 

24.  He submitted the following letters of support:

	a.  A letter, dated 14 September 2010, from a Member of Congress who states the applicant served as her escort in Afghanistan and conducted briefings on current operations. She requests he be reinstated on the FY07 COL APL as the appropriate thing to do given the contested OER had been removed from his record.  

	b.  A memorandum of support, dated 31 August 2010, from LTG MLO, Director of Joint IED Defeat Organization, wherein he states that he supports the applicant's promotion and describes him as an outstanding officer with high ethical character and senior leadership.  He adds that he is aware of the circumstances and he had previously observed the performance of his battalion in theater.  He recommends the applicant's reinstatement to the list and promotion to COL.
	c.  A memorandum of support, dated 24 November 2009, from MG JMB, Commander, First Division East (and applicant's former intermediate rater on the contested OER) who states the applicant should be promoted to COL.  He adds that the events that led to the contested OER have now been fully investigated and adjudicated.  He has full confidence in the applicant's ability for leadership and future service.

	d.  A memorandum, dated 18 December 2008, from BG JAS, Deputy CG, 10th Mountain Division, strongly endorsing the removal of the contested OER from the applicant's records and immediate promotion to COL.  He thought of the applicant as previously the best major in the brigade and among the top 1% officers in the division.  He strongly recommends his retention, promotion, and continued service.

	e.  A letter of recommendation, dated 1 December 2008, from MG WW, U.S. Army Infantry Center, Fort Benning, who describes the applicant as a valued officer who displays the attributes, characteristics, and values that exemplify what the Army is looking for in a senior leader.  He also describes him as intelligent, articulate, experienced, and prepared to assume duties of increased responsibility.

	f.  A letter, dated 5 November 2009, from the SA to Mr. JBT, a civilian aide to the SA, wherein the SA stated that in making his decision on the applicant's promotion, he took into account the recommendations of the PRB and those of senior leaders, and after this careful consideration, he rendered his decision to remove him from the promotion list.  He added the PRB's recommendation is only advisory and his decision to remove the applicant was appropriate and should stand.  Additionally, the applicant's relief from command (and any valor or service awards) was a discretionary decision made by his chain of command.  He concluded that should the applicant succeed on any or all his administrative appeals, his records would be adjusted accordingly. 

25.  According to the USAHRC website, the following pertains to the COL Army Officer Selection Board Schedules:

* FY07 Promotion Board for COL convened in July/August 2007 and was released on 29 November 2007
* FY07 SSC Selection Board convened in March/April 2009 and was released in July/August 2007 
* FY08 Promotion Board for COL convened on 8 to 22 July 2008 and was released on 4 November 2008
* FY08 SSC Selection Board convened on 1 to 17 April 2008 and was released on 5 August 2008
* FY09 Promotion Board for COL convened on 7 to 17 July 2009 and was released on 29 October 2009
* FY09 SSC Selection Board convened on 31 March to 17 April 2009 and was released on 30 July 2009
* FY10 Promotion Board for COL convened on 8 to 25 June 2010; not  released yet
* FY10 SSC Selection Board convened on 30 March to 16 April 2010 and was released on 29 July 2010
* FY11 Promotion Board to COL will convene on 16 to 30 August 2011
* FY11 SSC Board will convene on 5 to 15 April 2011

26.  He was not considered for the FY08 SSC board.  He was considered for the FY09 and FY10 SSC but not selected. 

27.  The annual SSC selection board reviews the files of LTCs after their 16th year of service.  The SSC is the final major military educational program available to prepare officers for the positions of greatest responsibility in the DOD.  Resident seats available each academic year within the SSC network include attendance at the Army War College, the Industrial College of the Armed Forces, National War College, other Service colleges and resident fellowships at governmental agencies and academic institutions.  The SSC selection board examines the eligible population and produces an order of merit list containing names.  Generally, the top one third are activated for resident attendance while the remainder are contacted by their branch or functional area managers and encouraged to apply for active duty annual seats in the U.S. Army War College Distance Education Course.  Additionally, Army Regulation 621-7 (Army Fellowships and Scholarships Program) establishes policies and procedures under which Army personnel may apply for permission to compete for and accept fellowships and scholarships.  Included are policies governing non-military education level (non-MEL) fellowships, Army senior service college fellowships (military education level-one (MEL–1) fellowships), Army senior fellowships (post MEL–1 fellowship), and scholarships.

28.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Paragraph 1-33 states the SA will provide guidance and instructions in a memorandum of instructions to the promotion selection board.  Additionally, paragraph 1-33c (4) & (5) states the following items, which are not part of the OMPF of an officer being considered for promotion, will not be given to a board:  memorandums that criticize or reflect on the character, conduct, or motives of any officer under consideration by the board unless otherwise authorized by this regulation and/or memorandums forwarded directly to the board by other parties on behalf of any officer except when provided as an enclosure to a memorandum from the officer being considered.

29.  Chapter 8 (PRB) of Army Regulation 600-8-29 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.  An officer may be referred to a PRB for the following reasons (the list is not exclusive): a referred OER, punishment under Article 15, Uniform Code of Military Justice (whether filed in the restricted or performance section of the OMPF), any court-martial conviction, a memorandum of reprimand placed in the OMPF, adverse documentation filed in the OMPF, initiation of elimination action, or other derogatory information 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.  For officers selected for promotion to colonel, HQDA will conduct a post-board screening of the restricted section of recommended officers and information in other official files such as those maintained by the CID and the DA Inspector General.  A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB.

	c.  The DCS, G-1 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.  

	d.  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 SA.  In cases involving promotions to or within general officer grades, the board report will be sent through the CSA to the SA who will forward the report with an appropriate recommendation through the Secretary of Defense to the President.  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.  

	e.  The SSBs may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the ADL (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

	f.  An officer will not be considered or reconsidered for promotion by an SSB when the officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the SA 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board.  

30.  Army Regulation 600-8-104 (Military Personnel Information Management / Records) prescribes policies, operating tasks, and steps governing the OMPF.  It states, in pertinent part, the performance (P) section of the OMPF is used for filing performance, commendatory, and disciplinary data, and is routinely used by career managers and selection boards.  Documents placed in this section are limited to those that provide evidence of a soldier’s demonstrated performance. These documents are used for evaluation and selection purposes.  The restricted (R) section is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this 

section is controlled.  It will not be released without written approval from the CG, USAHRC.  Documents on this section are those that must be permanently kept to maintain an unbroken, historical record of a soldier’s service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF; record investigation reports; record appellate action, and protect the interest of the Soldier and the Army.

31.  Table 2-1 (Composition of the OMPF) states 

* For document approving removal from a promotion list, file the removal from HQDA promotion list and allied documents in R section
* For denials of review of the ABCMR, file with allied documents in the R section
* If the DASEB approves a request and directs removal from the OMPF, do not file the document directing the removal.  File allied papers relating to approved requests only if directed by the DASEB
* For unfavorable information of which the member concerned had prior official knowledge; if a document is an enclosure to an adverse action that resulted in disciplinary action, relief for cause, reclassification for cause, elimination from service, or administrative reduction, file in the R section

32.  Army Regulation 600-37 provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

33.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states the Director, ABCMR will manage the ABCMR day–to–day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

34.  Paragraph 2-13 of this regulation states except as otherwise provided, the ABCMR acts for the SA, and an ABCMR decision is final when it denies any application (except for actions based on reprisals investigated under 10 USC 1034); grants any application in whole or in part without a hearing when the relief is as recommended by the proper staff agency in an advisory opinion or is unanimously agreed to by the ABCMR panel or does not involve an appointment or promotion requiring confirmation by the Senate.  The ABCMR will forward the decisional document to the SA for final decision in any case in which a hearing was held or the facts involve reprisals under the Military Whistleblower Protection Act, confirmed by the DOD Inspector General (DODIG) under 10 USC 1034 and DODD 7050.6, or when the ABCMR recommends relief but is not authorized to act for the SA on the application.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows the applicant was involved in conduct that his chain of command deemed had violated the ROE or the tenants or principles that Soldiers stand for on the battlefield.  Accordingly, he was relieved from command.  His relief was followed by a relief for cause OER.  

2.  The evidence of record also shows that he was selected for promotion to COL by the FY07 promotion board.  For officers selected for promotion to COL, HQDA conducts a post-board screening of the restricted section of recommended officers and information in other official files.  A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB.

3.  Having previously received a letter of concern and being later involved in an incident that led to his relief from command and subsequent relief for cause OER, his records were referred to a PRB.  The PRB recommended to the SA he remain on the promotion list.  However, prior to the VCSA's and CSA's recommendation to the SA, an inquiry was sent to the official who relieved him to further elaborate on the relief.  

4.  The email that was received from LTG BRM is clearly an example of derogatory information received by HQDA, but not filed in the OMPF.  The referral authority found this information relevant and that might reasonably and materially affect the recommendation.  The applicant was afforded an opportunity 

to comment on this information and he did so.  The senior chain of command, including the DCS, G-1; ASA (M&RA), VCSA, and CSA recommended his removal.  Only then and after having considered all the information, including the PRB's recommendation and the applicant's various rebuttals and letters of support, did the SA order his name removed. 

5.  The ASRB's directive to remove the contested OER from his records at a later date neither changed the fact that he had been previously relieved from command nor does it invalidate the PRB or the SA's decision to remove him from the promotion list.  The SA did not rely only on the OER when he made his decision.  Additionally, the SA's letter to Mr. JBT simply stated if the applicant received relief, his record would be adjusted accordingly.  Since there is no relief with respect to reinstating the applicant on the promotion list, there is no correction to be made.  

6.  The SA made his decision on 10 November 2008.  The FY08 COL promotion board convened on 8 July 2008.  The applicant was not qualified for consideration by that board because the PRB was still underway.  An SSB under the FY08 criteria is not possible because he was not considered by that board for the same reason.  

7.  It is unclear if his records were considered by the FY09 or the FY10 COL promotion boards.  However, since the contested OER was ordered removed by the DASEB on 29 April 2010, it is unlikely the directive was executed by the time the FY10 board convened on 8 June 2010.  Therefore, as a matter of justice and equity, his records should be considered by an SSB under the 2009 and 2010 criteria.  

8.  With respect to the removal of all PRB and ABCMR ROP and associated records/documentation from his OMPF, these documents are properly filed on the restricted portion of his OMPF.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  He did not provide convincing evidence to warrant removal of these documents.

9.  With respect to his request that to the extent the ABCMR is unable to grant relief, his case should be forwarded to the SA, the ABCMR acts for the SA and an ABCMR decision is final when it denies any application, except in certain cases which are not applicable in the applicant's case. 
10.  With respect to the assignment of a new analyst and review by the senior legal advisor, by regulation, the Director of the ABCMR runs the day-to-day operations of the ABCMR.  Applicant's may not dictate how the ABCMR works internally or how work is distributed to the staff or staffed for legal review. 

11.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

12.  With respect to selection for SSC, there is no SSB for this type of board.  Additionally, with respect to fellowships, the applicant is advised to contact his career manager regarding applying and competing for a fellowship.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With respect to the applicant's request for reconsideration of his original request for correction of his military records, the Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20100015344, on 29 July 2010.  As a result, the Board recommends, in regard to that portion of his request that pertained to consideration of his records by an SSB, that all Department of the Army records of the individual concerned be corrected by:

	a.  Submitting his records to duly constituted SSB, for reconsideration for promotion to COL under the FY09 and FY10 criteria,

   b.  If selected for promotion, his date of rank for COL should be consistent with others selected by that same promotion board, and 
	c.  If not selected, he so be notified.

2.  With respect to the applicant's request for reconsideration of the remainder of his issues, 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 AR20100015344, dated 29 July 2010 as pertained to:

* Reinstatement on the FY07 COL/O-6 APL as originally selected
* Promotion to COL with back pay and allowances
* Placement on the SSC/Fellowship list as either principal or high alternate 
* Removal of all PRB and ABCMR ROP and associated records or documentation from his OMPF
* Forwarding of his case to the SA



      __________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)                                         AR20100024016



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ABCMR Record of Proceedings (cont)                                         AR20100024016



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