IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110002939


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 her earlier request for promotion to colonel (COL).

2.  The applicant essentially states exactly what she stated in her initial request, that is:

* she was a two-time non-select for promotion to COL because she had not deployed in support of Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF)
* the promotion board "improperly failed to consider [her] for promotion for not having deployment experience to Iraq or Afghanistan
* the Secretary of the Army (SA) improperly instructed the promotion board to give special consideration to officers serving on Transition Teams and Provincial Reconstruction Teams (PRTs)

3.  The applicant states she was issued a DA Form 3349 (Physical Profile) for a permanent P3/L2 profile, but was rendered fit for duty CONUS-only (continental United States).  The special consideration instructions provided to the promotion board violated Public Law 111-383 (the Ike Skelton National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011) which said,

The committee is disappointed that the Department of Defense has not resolved the differing approaches of the services to this PROBLEM [emphasis added] despite numerous complaints, inquiries, and 


expressions of concern about the inequitable treatment of military personnel with medical conditions.  The committee expects the Secretary of Defense to issue uniform guidance to the services about how to proceed in the disposition of currently serving service members who fall into this category.

4.  The applicant provides:

* a 5-page memorandum
* Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012599
* Joint Explanatory Statement of the Committee on Armed Services of the U.S. Senate and House of Representatives on H.R. 6523, Ike Skelton NDAA for FY 2011
* Army Promotion List for Promotion to COL for Reserve Active Guard and Reserve
* DA Form 3349, dated 13 February 2009
* DA Forms 67-9 (Officer Evaluation Reports (OERs))

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 AR20100012599 on 9 December 2010.

2.  The documents submitted by the applicant in paragraph 3, above, were not previously reviewed by the ABCMR and are considered new evidence warranting consideration by the Board.  Also, her argument concerning non-deployable status as the reason for her non-selection is a new argument warranting consideration by the Board.

3.  The applicant cites the following areas of the NDAA for FY 2011, enacted on 7 January 2011.  Her citations are from the Joint Explanatory Statement of the Committee on Armed Services of the U.S. Senate and House of Representatives on H.R. 6523.  However, as stated in the December 2010 Legislative Text and Joint Explanatory Statement to Accompany H.R. 6523 Public Law 111–383 published in the Congressional Record, the following changes actually apply:

	a.  Section 522 – Modification of Promotion Board Procedures for Joint Qualified Officers and Officers with Joint Staff Experience – mandates a change to Title 10 U.S. Code Section 612 (10 USC § 612 – Composition of Selection 


Boards) to include joint qualified officers when considering such officers for promotion.

	b.  Section 533 – Correction of Military Records – mandates a change to 10 USC § 1554 (Review of Retirement or Separation Without Pay for Physical Disability) to expand jurisdiction of these disability boards beyond “an officer retired or released from active duty without pay for physical disability” to “a member or former member of the uniformed services retired or released from active duty without pay for physical disability….”

	c.  Section 534 – Disposition of Members Found to be Fit for Duty Who Are Not Suitable for Deployment or Worldwide Assignment for Medical Reasons – mandates a change to 10 USC §1214a which prohibits Service Secretaries from involuntarily separating a member based on a determination that the member is unsuitable for deployment or worldwide assignment based on the same medical condition for which the member was determined to be fit by a Physical Evaluation Board (PEB).  The Service Secretary can direct the PEB to reconsider whether the member is unfit based on a condition it previously considered not unfitting and/or seek Secretary of Defense approval for the involuntary separation.

4.  The applicant provided copies of her OERs as proof of her outstanding duty performance and in support of her allegation she was denied promotion based on her not having deployment experience.  Below is a review of the applicant's
DA Forms 67-9 as a promotable major and a lieutenant colonel (LTC).  The first rating entry relates to the rater’s evaluation of performance, expressed in numerals, with 1 the highest and 4 the lowest; the second numeral refers to the senior rater's (SR’s) evaluation of promotion potential on a scale of 1 to 4; and the third rating refers to the SR’s evaluation of the applicant’s potential compared with officers senior-rated in the same grade, stated in terms of Above Center of Mass (ACOM), COM, or Below (BCOM):

  Period					   Score/					     Type of Report
(YY/MM)			Rater/SR Profile

0205-0305	1/1/COM	Annual
0305-0311	1/1/COM	Change of Rater
0311-0405	1/1/ACOM	SR Option
0405-0505	1/1/COM	Annual
0505-0604	1/1/COM	Change of Rater
0604-0704	1/1/COM	Annual
0704-0804	1/1/ACOM	Annual
0804-0808	1/1/COM	Permanent Change of
		    Station (PCS)
  Period					   Score/					     Type of Report
(YY/MM)			Rater/SR Profile

0808-0812	1/1/COM	Change of Rater
0812-0912	1/1/COM	Annual
0912-1003	1/1/COM	Change of Rater
1003-1009	1/1/COM	Change of Duty

5.  10 USC § 613a – Nondisclosure of Board Proceedings – provides:

* Prohibition on Disclosure – The proceedings of a selection board convened under this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board; this prohibition is a statutory exemption from disclosure
* Prohibited Uses of Board Discussions, Deliberations, Notes, and Records – The discussions and deliberations of a selection board and any written or documentary record of such discussions and deliberations:

* are immune from legal process
* may not be admitted as evidence
* may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned

6.  10 USC § 646 – Consideration of Performance as a Member of the Joint Staff – mandates the Secretary of Defense, in consultation with the Chairman of the Joint Chiefs of Staff, to ensure that officer personnel policies of the Army, Navy, Air Force, and Marine Corps concerning promotion, retention, and assignment give appropriate consideration to the performance of an officer as a member of the Joint Staff.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks reconsideration of the Board's denial of her request for promotion reconsideration.  She alleges, in effect:

* the SA gave "improper instructions" to her promotion boards
* she was penalized for being fit for duty, but not deployable

2.  First, there was nothing improper about the SA's instructions to the applicant's promotion boards.  The applicant quotes language taken from the Joint 


Explanatory Statement of the House and Senate Armed Services Committees which expresses disappointment with the Department of Defense for not resolving the differing approaches of the services to the disposition of service members found to be fit for duty but who are not suitable for deployment or worldwide assignment for medical reasons – that is the PROBLEM alluded to in the Joint Explanatory Statement, not promotion of such individuals.

3.  By law, promotion selection boards do not reveal their deliberations as to reasons why an officer was not selected for promotion.  A review of the applicant's DA Forms 67-9 from the time of her selection for promotion to LTC through to her retirement shows that she was simply a COM officer.  Such a review also shows she did not have any Transition Team, PRT, or Joint Staff assignments.  However, it is unknown how much of a role, if any, either of these factors played in her non-selection.

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 AR20100012599, dated 9 December 2010.



      ____________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)                                         AR20110002939



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ABCMR Record of Proceedings (cont)                                         AR20110002939



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