IN THE CASE OF:	 

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110009870 


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 consideration for promotion to lieutenant colonel (LTC)/pay grade O-5 by a special selection board (SSB).

2.  The applicant defers to his counsel.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be considered for promotion to LTC/O-5 by an SSB and, if the applicant is selected, removal of the "non-selection for promotion" from his official military personnel file (OMPF), a retroactive promotion effective date to LTC, and continuation/reinstatement on active duty in the rank of 
LTC/O-5.

2.  Counsel states the Army failed to place an officer evaluation report (OER) and current photograph in the applicant's records prior to his consideration for promotion to LTC in August 2009 [sic – April 2010].

	a.  At the time, the applicant was serving in the rank of major (MAJ)/pay grade O-4 in the Judge Advocate General Corps (JAGC), his OER's were outstanding, and his mandatory retirement date was 31 May 2011.

	b.  The applicant was non-selected for promotion and his request for SSB consideration was denied by the U.S. Army Human Resources Command (HRC) because the applicant's "complete-the-record" OER was an optional report and not a basis for SSB consideration.

	c.  Counsel argues the OER was missing from the applicant's Officer Record Brief (ORB) [My Board File (MBF)] due to administrative error or delay; the OER was material to the selection board's decision; and the applicant, through reasonable diligence, could not or did not discover the error in time to correct it.

		(1)  The Army admitted the ORB [MBF] was incomplete due to its own error and advised him to request SSB consideration.

		(2)  The OER was material because it documented the applicant's superior performance over a 9-month period and its absence may have been the reason for the applicant's non-selection for promotion.

		(3)  The applicant demonstrated due diligence by ensuring a complete-the-record OER was prepared and submitted through proper channels.  He was also assured by administrative support personnel that the OER had been properly processed and he would be notified if there were any problems.

		(4)  The applicant was unable to review his records because the period for ORB [MBF] review was very close to the convening date of the promotion board.

		(5)  The OER was submitted to HRC on 29 March 2010 and the board convened in April.

		(6)  The OER was not in the applicant's OMPF when he reviewed it in August 2010.  He immediately took action to determine why it was missing.  He was informed that the Army was responsible for the error and advised to request SSB consideration.

		(7)  The applicant's request for SSB consideration is based on the missing OER and an updated official photograph and the likelihood that the board may have determined he was unconcerned with his promotion prospects or that he lacked necessary diligence.

	d.  Counsel cites:

		(1)  Army Regulation 623-3 (Evaluation Reporting System), chapter 3 (Army Evaluation Principles), paragraph 3-60 (Complete-the-Record Reports), that shows the absence of such a report from the OMPF at the time of board's review will not be a basis to request standby reconsideration unless the absence is due to administrative error or delay in processing at Headquarters, Department of the Army (HQDA) [counsel's emphasis];

		(2)  Army Regulation 600-8-29 (Officer Promotions), chapter 7 (Special Selection Boards), paragraph 7-3 (Cases Not Considered), that shows  an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF [the ORB is a summary document of information generally available elsewhere in the officer's record – it is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.]; and

		(3)  Title 10, U.S. Code, section 628(b)(1), governs persons considered by promotion boards in an unfair manner.  It provides that if the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion.  In order to determine that there was material unfairness, the Secretary must determine that:

		(a)  the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or

		(b)  the board did not have before it for its consideration material information [counsel's emphasis].

3.  Counsel provides copies of the applicant's SSB denial, request to extend his mobilization tour, three OER's, the three cited references, an email message string, and a memorandum pertaining to the processing of the OER.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active duty enlisted service from 8 August 1983 through 7 August 1985.  He enlisted in the Reserve Officers' Training Corps on 5 September 1985.

2.  The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant effective 9 May 1987.  He was promoted to the rank of first lieutenant and subsequently awarded military occupational specialty 55A (Judge Advocate General).

3.  A U.S. Army Reserve (USAR) Personnel Command, St. Louis, Missouri, memorandum, dated 15 November 2002, promoted the applicant as a Reserve commissioned officer of the Army to the rank of MAJ effective 7 September 2002.

4.  The applicant was ordered to active duty in support of Operation Enduring Freedom (Continental United States Based Support) for a period of 1 year on 1 June 2009.  He was subsequently ordered to active duty in support of a National Emergency for a period of 342 days on 1 June 2010.

5.  An HRC, St. Louis, MO, memorandum, dated 11 August 2009, notified the applicant that a Department of the Army (DA) SSB examined the performance portion of his OMPF under the 2007 criteria, but he was not selected by the board.  He was advised that this constituted his first non-selection and he still had a basis for further consideration by a DA SSB under the 2008 criteria.

6.  An HRC, St. Louis, MO, memorandum, dated 16 November 2009, notified the applicant that a DA SSB examined the performance portion of his OMPF under the 2008 criteria, but he was not selected by the board.  He was advised that, in the absence of new evidence showing that an error or injustice exists, further consideration by SSB is not possible.

7.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records System (iPERMS) shows his DA official photograph, dated 8 April 2010.

8.  A DA Form 67-9 (OER) complete-the-record report for the period 1 April 2009 through 2 January 2010 shows the applicant was rated in the principal duty of Soldiers' Counsel while assigned to Detachment 5, 3rd Legal Services Organization, with duty with the Office of the Staff Judge Advocate, Fort Lewis, Washington.

	a.  Part II (Authentication), item a and item c, show the rater (Supervisory Attorney) and senior rater (Staff Judge Advocate) electronically signed the OER on 25 March and 26 March 2010, respectively.

	b.  Part II, item e, shows the applicant electronically signed the OER on 29 March 2010.

	c.  Part VII (Senior Rater), item b (Potential Compared with Officers Senior Rated in Same Grade – Overprinted by DA), shows the senior rater's profile was printed on the OER by HQDA with a date of 29 March 2010.

	d.  The OER is filed in the performance section of his OMPF in iPERMS.

9.  Soldier Readiness Center, Joint Base Lewis-McChord, Washington, Orders 126-0004, dated 6 May 2011, released the applicant from active duty effective 8 May 2011 and transferred him to the 3rd Judge Advocate Detachment, Legal Services Organization, Detachment 5, Boston, Massachusetts.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty in the rank of MAJ based on completion of required active service on 8 May 2011 and transferred to his USAR unit.  He completed 1 year, 11 months, and 8 days of active service.

11.  In support of the application, counsel provides the following documents.

	a.  An HRC, Fort Knox, Kentucky, memorandum, dated 4 November 2010, shows the Chief, Special Actions Branch, DA Promotions, denied the applicant's request for a DA SSB.

		(1)  The applicant was informed his file that was considered by the 2010 DA Reserve Components Selection Board did not include his complete-the-record OER with an ending date of 1 January 2010.

		(2)  He was also informed that complete-the-record reports are optional and utilized to complete promotion board files for officers who will be considered for promotion by an upcoming selection board.  If the reports are profiled prior to the promotion board, they are eligible for board consideration.  Due to the fact that the reports are optional, they are not the basis for SSB consideration.

	b.  A memorandum, dated 22 September 2010, shows the applicant requested to extend his mobilization tour with the Office of Soldiers' Counsel for a period of 1 year beginning 1 June 2011.

	c.  Three evaluation reports summarized as follows:

		(1)  The complete-the-record OER for the period 1 April 2009 through 2 January 2010 shows the applicant performed the principal duty of Soldiers' Counsel while assigned to Detachment 5, 3rd Legal Support Office, with duty with the Office of the Staff Judge Advocate, Fort Lewis, Washington.   The rater evaluated his performance and potential as "Outstanding Performance, Must Promote"; the senior rater evaluated his promotion potential as "Best Qualified"; and the senior rater profile indicates "Above Center of Mass"; dated 29 March 2010.

		(2)  An annual OER for the period 1 April 2008 through 31 March 2009 shows the applicant performed the principal duty of Command Judge Advocate while assigned to the 301st Maneuver Enhancement Brigade, 416th Topographic Engineering Center, Fort Lewis, Washington.  The rater evaluated his performance and potential as "Outstanding Performance, Must Promote"; the senior rater evaluated his promotion potential as "Best Qualified"; and the senior rater profile indicates "Above Center of Mass"; dated 21 July 2009.

		(3)  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the U.S. Army Command and General Staff Officer Course, Fort Leavenworth, Kansas, on 31 July 2007.

	d.  An incomplete email message string beginning 18 August 2010, subject:  [applicant's] OER, is summarized as follows.

		(1)  MAJ J____ L. D____, Career Manager and Plans Officer; Reserve Personnel, Plans, and Training Office (PPTO); Office of the Judge Advocate General, Rosslyn, Virginia, replied to the applicant.  [The email message string does not show her reply to the applicant or the applicant's initial message to her.]

		(2)  On 20 August 2010, MAJ D____ forwarded the message to Ms. K____ W. S____, Evaluation Systems Office, HRC, asking, "[c]an you tell me anything about this particular OER referred to below which was sent into HRC but rejected as the 'thru' dates were not correct.  I don't have a copy so I'm not certain what the dates are, but can get them if you need them."  [The OER in question is not specifically identified at any point in the email message string.]

		(3)  On 20 August 2010, Ms. S____ replied, "Our error, tell him to request the relook!  I am having the report processed.  I am sorry about this.  These are costly mistakes that we do not take lightly."

		(4)  On 20 August 2010, MAJ D____ forwarded the message string to the applicant and provided him with information for requesting consideration by an SSB.

	e.  Headquarters, I Corps and Joint Base Lewis-McChord, Joint Base 
Lewis-McChord, Washington, memorandum for record, dated 23 September 2010, shows Ms. C____ F. H____, Administrative Support Specialist, Office of the Staff Judge Advocate, stated she learned that the applicant's complete-the-record OER was not included in the promotion board that met in April 2010; the OER was completed and submitted to HRC on 29 March 2010; and the applicant was informed the OER had been sent.  She added, "[a]pparently, his OER was rejected because the thru date of the OER did not agree with the date on the consolidated board list.  I did not receive an email from HRC that the OER had been rejected, so I assumed that it made it to the board."

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), paragraph 4-9, provides rules for administering officer pre-board processing.  This paragraph provides that officers in the zone of consideration will review and update their ORB; all current, available admissible personal information will be submitted to the OMPF; and these officers are responsible for maintaining and submitting current information to the promotion selection board.

13.  Military Personnel (MILPER) Message Number 09-096, issued 28 April 2009, announced that mandatory DA promotion boards will convene on or about 4 August 2009 to consider USAR JAGC MAJ's for promotion to LTC.  It shows that USAR JAGC MAJ's with a date of rank (DOR) of 31 March 2003 and earlier were "above the zone" for promotion consideration.

14.  MILPER Message Number 10-053, issued 24 February 2010, announced that mandatory DA promotion boards will convene on or about 13 April 2010 to consider USAR JAGC MAJ's for promotion to LTC.  It shows that USAR JAGC MAJ's with a DOR of 31 March 2004 and earlier were "above the zone" for promotion consideration.

	a.  Paragraph 1f (Policy) provides that "Army policy requires Soldiers to review their MBF and to provide any missing documents that you have in your possession or make a reasonable attempt to retrieve those missing documents.  Failure to comply with this message may demonstrate a lack of due diligence [emphasis in message] on your part and must be fully explained if you decide to request an SSB at a later date.  All documents that are in the performance portion of your OMPF which belong in your MBF will be pulled into your MBF."

	b.  Paragraph 2 (MBF) states:

		(1)  "Approximately 60 days before the convene [sic] date of the boards, all Soldiers in the considered population will be able to review their MBF on-line through the HRC website."

		(2)  "Note:  Visibility of the MBF will cease 3 working days prior to the convene [sic] date of the boards [emphasis in message]."

		(3)  "Your MBF will be created using the performance section of your OMPF, plus authorized non-OMPF documents submitted from the officer.  Currently it can take up to 5 working days for a submitted OMPF document to appear in your on-line OMPF.  Allow an additional 48 hours [emphasis in message] for newly-posted OMPF documents to transfer to your MBF.

	c.  Paragraph 3 (ORB's) shows that entries on the ORB are for information purposes only.

	d.  Paragraph 4 (Evaluation Reports):

		(1)  subparagraph a, provides, "[i]n order to be eligible for consideration by the board all mandatory or optional OER's must be received, error free, in the Evaluation Reports Branch, HRC, not later than and by close of business on 2 April 2010 [emphasis in message]."

		(2)  subparagraph c (Code 09, Complete-the-Record Report), shows "[t]he required 'Thru Date' for complete-the-record reports (code 09) is 2 January 2010.  OER's not profiled will not be seen by these boards [emphasis in message]."

	e.  Paragraph 6 (Photographs) shows that digital photographs are furnished to all centralized DA officer selection boards.  All officers were encouraged to review their photographs and submit a new one.

	f.  The MILPER message also shows in the final paragraph (11) that "[t]he MBF view will be closed 3 working days prior to the convene [sic] date of the boards (7 April 2010) [emphasis in message]."

15.  Army Regulation 623-3, chapter 3, governs evaluation principles.

	a.  Paragraph 3-37 (Preparation and Submission Procedures) provides that evaluation reports will be forwarded to reach HQDA no later than 90 days after the ending date of the report.  The centralized selection, promotion, and school boards schedules will be closely monitored to ensure that eligible reports, both mandatory and optional, are forwarded to HQDA in sufficient time to be included in a Soldier's board file.

		(1)  OER's are processed and profiled and HQDA electronically generated labels are applied daily as the reports are received from the field, regardless of the thru date of the report, and the senior rater signature date (unless a profile restart is involved).

		(2)  Senior raters are responsible for ensuring reports are submitted in a timely manner and processed at HQDA to final completion in the Soldier's OMPF in the desired sequence.  A report failing to process in the sequence desired by the senior rater is not a basis for appealing the report.

		(3)  Reports received at HQDA after the required amount of time or past a suspense date set for a selection board is not an automatic basis for appealing either the report or selection board results.  HQDA will process any valid report so as not to do disservice to the rated Soldier with an excessive amount of nonrated time.  Complete-the-record reports not received in a timely manner to HQDA will not be processed and will be returned.  The absence of a complete-the-record report from the OMPF at the time of the board's review will not be the basis to request standby reconsideration, unless the absence is due to administrative error or delay in processing at HQDA.

	b.  Paragraph 3-60 shows that complete-the record reports are optional. Therefore, the absence of such a report from the OMPF at the time of board's review will not be a basis to request standby reconsideration unless the absence is due to administrative error or delay in processing by HQDA.

16.  Army Regulation 600-8-29, chapter 7 (SSB's), paragraph 7-3 (Cases Not Considered), provides that an officer will not be considered or reconsidered for promotion by an SSB when the following occurs:

	a.  an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF [the ORB is a summary document of information generally available elsewhere in the officer's record – it is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them]; and

	b.  the promotion selection board did not see an official photograph.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant should be considered for promotion to LTC/O-5 by an SSB and, if selected, removal of the "non-selection for promotion" from his OMPF, a retroactive promotion effective date to LTC, and continuation/reinstatement on active duty in the rank of LTC because the Army erred by failing to place a complete-the-record OER in the applicant's records prior to his consideration for promotion to LTC and failed to include his most current DA official photograph.

2.  The evidence of record shows the absence of a complete-the-record report from the OMPF at the time of board's review will not be a basis to request standby reconsideration unless the absence is due to administrative error or delay in processing at HQDA.

3.  MILPER Message 10-053, dated 24 February 2010, provided detailed information on the requirements for all USAR JAGC MAJ's in the zones of consideration for promotion to LTC.  It also advised that the on-line MBF was available to the officer to review his/her promotion board file.  The MBF was closed 7 April, 3 working days prior to the convening date of the board [13 April 2010].

	a.  The message shows that the required "thru date" for complete-the-record reports was 2 January 2010.

		(1)  A complete-the-record OER was completed by the applicant's rater and senior rater, the applicant electronically signed the report on 29 March 2010, and the OER was submitted to HRC.

		(2)  Counsel contends the applicant was unable to review his records because the period for review was very close to the convening date of the promotion board.  In fact, the applicant had the opportunity to view his MBF until 7 April 2010 to ensure the OER was in his file.

		(a)  The evidence of record shows the applicant first learned the OER was not in his OMPF when he reviewed his OMPF in August 2010 and it was then that he took action.

		(b)  On 20 August 2010, an official in the HRC Evaluations Report Branch acknowledged an error and advised that the applicant could request SSB consideration.

		(c)  On 23 September 2010, an official in the applicant's unit indicated the complete-the-record OER was rejected because of an error in the "thru date."

		(d)  On 4 November 2010, the Special Actions Branch Chief denied the applicant's request for promotion consideration by a DA SSB.  He explained the applicant's file did not include his optional complete-the-record OER with a "thru date" of 1 January 2010 [2 January].  He noted these reports are eligible for board consideration only if the reports are profiled prior to the promotion board.  He added that due to the fact that these reports are optional, they are not a basis for SSB consideration.

		(3)  The precise reason why the complete-the-record OER was not processed for inclusion in the applicant's MBF is not clear.  However, it appears the reason was because the report was not "error-free"; i.e., there was an error in the "thru date" of the report.

		(4)  Thus, it appears the applicant failed to ensure the complete-the-record OER was prepared with the correct "thru date" when he signed the OER on 29 March 2010.  More importantly, it appears he did not review his MBF prior to 7 April 2010 to ensure the OER was accepted by DA.  In fact, the applicant acknowledged that he did not review his on-line OMPF until mid-August; more than 4 months after the promotion board convened.  Therefore, the applicant failed to demonstrate due diligence in this case.

	b.  The promotion board instructions were issued on 24 February 2010 and advised those eligible for promotion that it could take up to 5 working days for a document to appear in their on-line OMPF.  The board convening date was 13 April 2010.  The applicant's DA official photograph is dated 8 April 2010, which was 3 working days prior to the date the board convened.  Thus, the evidence of record shows the applicant did not take the requisite timely action to ensure an updated photograph was submitted to the board for inclusion in his board file.  In any event, the absence of an updated DA official photograph is not a basis for promotion reconsideration.

4.  In view of the foregoing, there is no basis for granting the applicant's request for relief.

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 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)                                         AR20110009870



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ABCMR Record of Proceedings (cont)                                         AR20110009870



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