IN THE CASE OF:	  

		BOARD DATE:	    12 July 2011

		DOCKET NUMBER:  AR20100025274 


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:

   a.  removal of her DA Forms 67-9 (Officer Evaluation Report) for the periods 5 November 2003 through 4 June 2004 and 5 June 2004 through 25 February 2005 [herein referred to as the contested OERs] from her Official Military Personnel File (OMPF).
   
   b.  reinstatement in the Active Guard Reserve (AGR) program.

   c.  special selection board (SSB) for reconsideration for promotion to lieutenant colonel (LTC).

2.  She states she:

* deployed to Afghanistan in February 2005 and while there, her mother and mother-in-law passed away and her son had a car accident
* volunteered twice for deployment to Afghanistan
* worked with an active duty unit and performed an active duty field grade Soldier’s mission
* went before the LTC APL Promotion Selection Board in September 2007 which caused her to become a two-time non-select
* submitted a letter to the president of the promotion board that was not in her promotion packet



3.  She also states she/her:  

* has been in the U.S. Army Reserve (USAR) for the past 26 years and performed excellent prior to working in an active duty unit 
* two contested OERs used for the LTC APL board were inaccurate, didn’t reflect the mission she was hired to perform, and prevented her promotion to LTC
* was released from the AGR program after 7 years of active Federal service 
* records were unjustly evaluated for promotion to LTC in order to stay on AGR status

4.  She referenced Army Regulation 600-8-29 (Officer Promotions), paragraphs 7-2a(1) and (3) and Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-2a.  

5.  She provides:  

* three memoranda 
* five OERs
* deployment orders 
* numerous email messages
* DA Form 5648-R (AGR Job Authorization (Request/Change)
* DA Form 638 (Recommendation for Award)
* Villanova University, University Alliance Order and Enrollment Confirmation
* DA Form 2B (Personnel Qualification Record – Commissioned Officer)
* letter addressed to the president of the LTC APL promotion board
* narrative for award of the Bronze Star Medal
* award certificates for the Bronze Star Medal and Joint Service Achievement Medal

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the Army National Guard on 20 June 1987 after completion of prior enlisted service.  She was promoted to major on 24 July 2000.  

2.  On 25 February 2001, she was ordered to active duty in an AGR status.  



3.  She provided a 29 July 2002 Job Authorization for the position of Personnel Plans and Operations Officer in Germany.  This document shows in:

	a.  Part II (Description of Duties) – she would serve as a Military Personnel Plans and Operations Officer for USAR operations within the Office of the Deputy Chief of Staff, Personnel and Installation Management (ODCSPIM), Headquarters, U.S. Army Europe (USAREUR), 7th Army.  

   (1)  Research and provides recommendations to improve USAR 
personnel doctrine policies and procedures within the USAREUR theater of operations.  Plans and coordinates the integration of USAR personnel in support of USAREUR missions.

		(2)  Advise the USAREUR/7th Army DCSPIM G-1 on all USAR personnel plans, policy, operations and mobilization procedures.

		(3)  Liaison Officer to the USAREUR Senior USAR Advisor, Office of the Chief Army Reserve, United States Army Forces Command, and Army Reserve.

		(4)  Maintain accountability for all USAR personnel in support of USAREUR operations.  

		(5)  Develop plans to assist the USAREUR DCSPIM G-1 to expand staff augmentation as required by supervising the Individual Mobilization Augmentation (IMA) program within ODCSPIM G-1.

		(6)  Coordinate Annual Training, prepares annual training budget and integrates reservists into the ODCSPIM G-1 work force structure.

   b.  Remarks – Officer was required to provide USAR/Reserve Component (RC) expertise for developing programs that support RC units and individual IRR (Individual Ready Reserve) and IMA personnel.  Officer should have exposure to mobilization and deployment planning and should be “computer literate” with a working knowledge of Microsoft Office products.  

	c.  Part V (Additional Remarks) - listed “Additional Functions:  ODCSPIM representative to the Operations Center Personnel Desk, personnel planning for training exercises involving USAR Soldiers, ODCSPIM/1st PERSCOM Joint Contact Teams Coordinator, OJF/OJG personnel issues/AAR Action Officer, USAR Personnel Coordinator for the JWCA/JROC, assist in the review of all military regulations that impact present or future USAR Soldiers serving in USAREUR.”

4.  She received the contested OER for the period ending 4 June 2004, which rated her performance as the Personnel Plans and Operations Officer within the ODCSPIM, G-1, USAREUR, 7th Army.  This was a Senior Rater Option report. The report shows she was rated for 7 months and shows:

   a.  The rater is listed as LTC D---d V. F----n, Chief, Plans and Operations and the senior rater is listed as Colonel E---- A. S-------s, Chief, Plans and Policies.  The report was signed by the rater and senior rater on 4 June 2004.  

   b.  In Part V (Performance and Potential Evaluation (Rater)), the rater evaluated her as “Satisfactory Performance, Promote.”  The rater listed positive comments such as “(applicant) has continued to get involved and take charge of unfamiliar challenges arising from her responsibilities as a MACOM level Personnel Plans Officer.  She has served as the lead plans officer for the G1’s contribution to the USAREUR Consequence Management Functional Plan and for other contingency plans being developed by G3.”  “Overall, (applicant) remains a contributing member of the G1 team, dedicated to caring for Soldiers and improving this organization.  (Applicant) remains motivated, and with continued improvement, could be promoted to LTC.”

   c.  In Part VII (Senior Rater), the senior rater evaluated the applicant as “Fully Qualified” for promotion potential and assessed her as “Center of Mass.”  The senior rater commented, in part, “(Applicant) has remained dedicated to gaining professional growth opportunities as a MACOM level planning officer.  She remains our G1 expert on USAR matters and has personally worked to bring 3 RC Soldiers on active duty to support the G1’s efforts to care for Soldiers and families in a deployed environment.  (Applicant) should be promoted and placed in positions where she can continue to best serve the Army.”  

	d.  The contested OER was provided to the applicant for her acknowledgement.  She signed the report verifying she had seen the completed contested OER and the administrative data was correct.  

5.  She received the contested OER for the period ending 25 February 2005, which rated her performance as the Chief, Plans and Exercises Officer within the 
ODCSPIM, G-1, USAREUR, 7th Army.  This was a Change-of-Rater report.  The report shows she was rated for 9 months and shows:

   a.  The rater is listed as LTC L----l A. S--l, Chief, Plans and Operations and the senior rater is listed as Colonel A-- J. J------h, Chief, Plans and Policies.  The report was signed by the rater and senior rater on 26 February 2005.  
   
   b.  In Part V, the rater evaluated her as “Satisfactory Performance, Promote.”  The rater listed positive comments such as “During this rating period, (applicant) performed all assigned duties to the utmost of her abilities.  She coordinated and tracked the G1's participation and contributions in the planning, development and execution of several USAREUR level exercises.”  “(Applicant) is constantly seeking opportunities for personal and professional development and recently completed her Masters degree.”  “(Applicant’s) operational understanding and exercise management skills have improved during this period.  She should continue to be placed in challenging MAJ level positions to further develop her skills and overall duty performance as a professional officer.”  

   c.  In Part VII, the senior rater evaluated the applicant as “Fully Qualified” for promotion potential and assessed her as “Center of Mass."  The senior rater commented, in part, “(Applicant) has been a valued member of the G1 serving as the Chief of Plans and Exercises.  She led her team in representing the G1 in numerous JCS, EUCOM and USAREUR exercises.  Her team’s participation reflected admirably on the G1 as they provided expert personnel and policy guidance.”  “(Applicant) possesses potential for promotion as she continues to refine and improve her skills as a field grade officer."  

   d.  The contested OER was provided to the applicant for her acknowledgement.  She signed the report verifying she had seen the completed contested OER and the administrative data was correct.  

6.  She provided a copy of her OER for the period ending 21 February 2006 in which her potential compared with officers senior rated in the same grade was rated at "Center of Mass.”

7.  She served in Afghanistan from 25 February 2005 through 1 March 2006 in support of Operation Iraqi Freedom.  

8.  She also provided a copy of OERs for the periods ending 30 July 2006 and 20 December 2006, in which her potential compared with officers senior rated in the same grade were rated at "Center of Mass.”

9.  On 9 August 2007, she submitted a statement to the president of the 2007 LTC, APL, Promotion Selection Board.  She stated she had reviewed her board file online and four documents were missing (i.e., DA Form 638, Acceptance Application for Six Sigma Green Belt Program)-Villanova, Personnel Qualification Record, and Recommendation Letter from Colonel M-----o) and she specified two of her Regular Army duties.  

10.  Orders published on 29 November 2007 show she was scheduled for deployment in support of Operation Iraqi Freedom with a proceed date of 13 April 2008.  

11.  She provided three letters of recommendation (dated 31 December 2007, 24 January 2008, and 27 February 2008) from two senior officers and a general officer recommending her for promotion reconsideration.  She was given accolades for her job performance and qualifications for promotion reconsideration to LTC.

12.  On an unknown date in 2008, a Department of the Army Reserve Components Promotion Selection Board convened to consider officers for promotion to the next higher grade.  In a letter with a suspense date of 17 July 2008, she was informed that she was not selected for promotion, but was recommended for continuation in her present grade and the Secretary of the Army approved the recommendation.  She was also informed that she had to be released from active duty and the AGR program no later than 120 days after receipt of her involuntary release notification.  She acknowledged receipt of the memorandum of notification and she elected to accept selective continuation on the Reserve Active Status List.  

13.  She was honorably released from active duty on 20 October 2008 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-37 by reason of non-selection, permanent promotion.  On the following day, she was transferred to the USAR Control Group (Reinforcement).  

14.  On 27 October 2008, the Army Special Review Boards denied the applicant’s request for her OER for the period 5 November 2002 through 4 November 2003 and her two contested OERs be removed from her OMPF.  

15.  Orders published on 21 November 2008 show she was ordered to active duty for operation support with a reporting date of 15 December 2008.  

16.  Orders published on 16 January 2009 show she was promoted to LTC with an effective date and date of rank of 16 December 2008.  

17.  In a 21 June 2011 email, the Human Resources Command, Fort, Knox, KY informed a staff member that the applicant had not been considered for promotion by an SSB.  



18.  References:  

   a.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.

   (1)  Paragraph 3-24 states that each report will be an independent 
evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.

   (2)  Paragraphs 3-57 and 6-6 provide that an OER accepted by 
Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

   (3)  Paragraph 6-10 states that the burden of proof in an appeal of an 
OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

   b.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) states that once placed in the OMPF, documents become a permanent part of that file and will not be removed from the OMPF or moved to another part of the OMPF unless directed by one of several agencies, one of which is this Board.

   c.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that:

   (1)  Mandatory selection boards will be convened each year to consider 
Army Reserve officers in an active status for promotion to captain through LTC.

   (2)  Promotion advisory boards and SSBs will be convened on an "as 
needed" basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  

	d.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system and states in paragraph 7-2a that the SSBs may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: 
   (1)  An officer was not considered from in or above the promotion zone by 
a regularly scheduled board because of administrative error.  This would 
include officers who missed a regularly scheduled board while on the Temporary Disability Retired List and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)). 
   
   (2)  The board that considered an officer from in or above the promotion 
zone acted contrary to law or made a material error (SSB discretionary). 
   
   (3)  The board that considered an officer from in or above the promotion 
zone did not have before it some material information (SSB discretionary). 

DISCUSSION AND CONCLUSIONS:

1.  She has not provided clear and compelling evidence which shows that the ratings on the contested OERs were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the reports were rendered.

2.  In the absence of evidence to the contrary, it appears the contested OERs represent the considered opinions and objective judgments of the rating officials.  As a result, it is concluded that the OERs in question were processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested OERs at this time.  

3.  She was considered, but not selected by the 2007 LTC, APL Promotion Selection Board.  It appears that this was her second non-selection for promotion.  

4.  Her administrative separation under the provisions of Army Regulation 
600-8-24, paragraph 2-37 and subsequent release from the AGR program were accomplished in compliance with applicable regulations at the time.  Her service record is void of procedural errors which would have jeopardized her rights.  

5.  Her service record is void of evidence which indicates her release from the AGR program was in error or unjust.  Therefore, there is no basis for reinstating her in the AGR program.  

6.  Since promotion boards are not permitted to disclose the reasons for 
non-selection for promotion, there is no record of the reason she failed to be selected for promotion to LTC by the 2007 LTC APL Promotion Selection Board.  Promotion and retention are keenly competitive and many officers will not be selected.  Her service record is void of evidence that suggests her non-selection for promotion was the result of the two contested OERs.  

7.  She contends that the two contested OERs were inaccurate and didn’t reflect the mission she was hired to perform.  However, absent any specific evidence indicating she was improperly rated, it is presumed the rating officials and that the applicant's non-selection was in no way based on these reports.  

8.  The evidence of record confirms she was properly considered for promotion with her peers, and as a result she was clearly provided due process in the promotion selection process.  

9.  She was promoted to LTC with an effective date and DOR of 16 December 2008.  

10.  In the absence of a material error at the time in question, she is not eligible for reconsideration for promotion to LTC by an SSB or reinstatement in the AGR program.

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)                                         AR20100025274



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ABCMR Record of Proceedings (cont)                                         AR20100025274



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