IN THE CASE OF:
BOARD DATE: 12 January 2012
DOCKET NUMBER: AR20110011529
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 an expedited correction of his records as follows:
a. to show he was promoted to colonel (COL) by the Fiscal Year (FY) 2005 Judge Advocate General's Corps (JAGC) Promotion Selection Board (PSB) with an appropriate date of rank with entitlement to back pay and allowances;
b. to remove the rater's narrative comments from his 2003 officer evaluation report (OER) and provide appropriate instructions to any PSB (including any appropriate special selection boards (SSBs);
c. in the alternative, to show he was promoted to COL by the FY06, FY07, FY08, or FY09 PSB's;
d. if the Board determines that new SSB's for the FY05, FY06, FY07, FY08, and FY09 COL JAGC PSB's are a just, fair, and equitable result:
* direct the Army Board Secretariat and G-1 to ensure compliance with the specific 50/50 membership requirement between basic branch and JAGC members
* prohibit successive scoring by any SSB or regular PSB members of his board file for promotion to COL
* direct the Army Board Secretariat and G-1 to include all above-the-zone selectee files in the 10 comparison files for scoring by the SSB in comparison to the score of his promotion file by any SSB convened to reconsider him for promotion to COL
* direct the Army G-1 to amend the May 2003 OER as requested in the OER appeal and provide an appropriate instruction to any PSB including SSB considering the amended OER
* direct a corrected copy of his Officer Record Brief (ORB) with the continental United States (CONUS) deployment be placed in his promotion file for the new FY05 SSB
* prohibit any JAGC officer who previously scored his promotion file from serving on any of the SSB's recommended by the Board
* prohibit any general officer (GO) from serving as a member of any of the recommended SSB's given the high probability of prior knowledge regarding which files are COL selectees or non-selectees
e. in the alternative if the Board is not convinced by his argument, to grant him a personal hearing with reasonable time to prepare and notify the Board of potential witnesses.
2. The applicant states his case while not identical to the case that caused the Chairman of the Army Board for Correction of Military Records (ABCMR) to write a letter in 1989 to the Army General Counsel after the ABCMR directed the promotion of a JAGC major (MAJ) to lieutenant colonel (LTC) is very similar and warrants the same conclusion and decision. Either injustice or numerous material administrative errors in the manner by which his file was considered by COL JAGC PSB's from FY05 to FY09, two SSB's, and his record of stellar performance warrant the ABCMR directing correction of his record to show promotion to COL rather than additional SSB's.
a. A solid basis exists for finding bias against him by the president of his SSB held in September 2006 as well as the FY06 (August 2006) and FY07 (August 2007) COL JAGC PSB's arising out of his probable-cause determinations in two Afghan detainee homicide investigations while he was serving as Staff Judge Advocate (SJA), U.S. Army Criminal Investigation Command (USACIDC, also known as CID), in Afghanistan.
b. Injustice or unfairness and inequity resulted from the Army's failure to comply with specific membership requirements for COL JAGC PSB's requiring co-equal membership between basic branch and JAGC members in the
Army G-1 Standing Operating Procedure (SOP) for PSB, dated 2002.
c. Injustice or unfairness and inequity occurred by successive scoring by a JAGC GO as a member of two "promotion/selection" boards considering him for promotion to COL in violation of Title 10, U.S. Code (USC), section 612 and section 628 (January 2008 and August 2008).
d. Injustice or unfairness and inequity resulted from the Army's failure to comply with the Army G-1 SOP requiring that five selectee comparison files for an SSB include selectees from in and above the zone in the FY07 SSB held in January 2008 and possibly in the FY05 SSB held in September 2006.
e. Army G-1 decision memoranda are not supported by law or published Army G-1 procedures and policies for PSB's and should not be upheld if justice, fairness, or equity matters to the ABCMR. The Accardi Doctrine [an agency must abide by its own regulation] applies to this application contrary to what the Army G-1 would have the ABCMR do in this case.
3. He describes the chronology of events as follows.
a. In 2003-2004, he, as SJA, CID, overruled COL M____ E. D____, SJA, XVIII Airborne Corps, and her staff, finding probable cause that Military Police (MP) and Military Intelligence (MI) interrogators committed Uniform Code of Military Justice (UCMJ) offenses leading to the deaths of two Afghan detainees within 5 days of coming into U.S. military custody. The military pathologist ruled the deaths were homicides.
b. In 2004-2005, he opined it is within CID's jurisdiction to investigate allegations of voluntary sexual misconduct by COL M___ E. D____'s spouse given his position as a garrison commander (CID response regarding his role in CID going forward with investigation. CIDC only investigates such allegations by exception under applicable Department of Defense (DOD) policies).
c. In August-November 2005, the FY05 COL JAGC PSB did not select him. He later learned the JAGC Personnel Plans and Training Office (PP&TO) boards officer placed a memorandum to the PSB identifying him as an acquisition law specialist attorney in his board file after he confirmed the accuracy of his board file without notice to or consulting with him. Then Brigadier General (BG) S____ C. B____, his mentor and rater while serving as a captain and MAJ with senior rater top blocks, was the President of the FY05 Board prior to becoming Lieutenant General (LTG) S____ C. B____, The Judge Advocate General (TJAG) of the Army.
d. In May 2006, he requested promotion reconsideration against the advice of the Deputy Chief, PP&TO (who signed the incorrect memorandum), and his request for an SSB was granted by the Army.
e. In September 2006, an SSB convened consisting of now BG M____ E. D____ [formerly COL M____ E. D____] as President, COL J____ M. G____ (JAGC), one other JAGC COL, and two basic branch members, one of whom was specifically noted by the recorder as being a "minority" to meet the specific membership requirement for minority membership in the Army G-1 Promotion Board SOP, chapter 2, table 2-2. The SSB did not recommend him for promotion. The FY05 SSB membership consisted of five of the six members from the FY06 LTC JAGC PSB. COL A____ C____ with whom he recently served in support of at the Defense Logistics Agency (DLA), while apparently available, was not allowed to score his file during the FY05 SSB.
f. In August-November 2006; FY06 COL JAGC PSB with Major General (MG) D____ V. W____ as president did not recommend any above-the-zone officer for promotion to COL for the first time in a decade; however, one to three JAGC LTC's are historically selected above the zone by the COL JAGC PSB.
g. In August-November 2007, the FY07 COL JAGC PSB with BG M____ E. D____ as President and COL J____ M. G____ as two of the three JAGC members scored his file twice in succession (i.e., as members of the FY05 SSB in September 2006 and FY07 COL JAGC PSB in August 2007). It is noted here that all of his OER's to include the most recent 2007 OER while serving as SJA in Afghanistan (a COL/O-6 position) are rated above center of mass (ACOM) with the one center-of-mass (COM) OER being the first of two OER's from the same senior rater while serving as CID SJA. Six OER's (two ACOM, one COM, and then another three ACOM) are in the FY07 COL JAGC PSB.
h. In November-December 2007, he requested promotion reconsideration by email directly with Army Board Secretariat based on the scoring by two board members of his board file twice in less than a year (citing violations of Title 10, the Army Regulation, and G-1 SOP for Officer PSB). He shared the basis for bias by BG M____ E. D____ with the Army G-1 points of contact arising out of the two Afghan detainee cases and his involvement in CID's decision to investigate BG M____ E. D____'s spouse as an exception to CID's investigative jurisdiction. The Director of Military Personnel Management (DMPM) requested approval to convene an FY07 SSB for him. It is noted that two above-the-zone LTC's were selected for promotion by the FY07 COL JAGC PSB (i.e., back to historical norm of above-the-zone LTC selections).
i. In January 2008, the FY07 SSB convened with one JAGC BG and four non-JAGC BG's.
j. In February 2008, DMPM approved a change to the Army G-1 SOP which basically states that it is now okay for an officer who served as a member of an SSB to serve as a member of the next regular PSB considering an officer for promotion to the same grade and competitive category. In April 2008, the FY07 SSB did not select him.
k. In August-November 2008, the FY08 COL JAGC PSB convened in August 2008 with the same JAGC BG as President that served as the only JAGC member on his FY07 SSB in January 2008. This was nearly an identical sequence of events that caused DMPM to recommend the FY07 SSB held in January 2008 the only difference is that the first incident involved two JAGC SSB and regular PSB members scoring his file twice in succession for promotion consideration to COL in the JAGC. There was one above-the-zone LTC selected for promotion to COL by the FY08 COL JAGC PSB (i.e., back to the normal).
l. In August-November 2009, the FY09 COL JAGC PSB was convened with COL J____M. G____ as a JAGC member. COL J____M. G____ had now scored his file three times for promotion to COL in the JAGC from September 2006 to August 2009. Army JAGC had over 20 female COL's and 128 COL's overall on active duty (AD) in the Army in August 2009. There was one above-the-zone LTC selected for promotion to COL (i.e., back to the normal).
4. The applicant also states:
a. Similar to the ABCMR's October 1989 case referenced earlier, BG M____ E. D____, president of the FY05 SSB (September 2006) and FY07 COL JAGC PSB (August 2007), as well as MG D____ V. W____, president of the FY06 COL JAGC PSB, both JAGC GO's, had direct and personal knowledge of his role and active participation in the two CID homicide investigations involving numerous MI interrogators and MP guards being cited for UCMJ offenses and Afghan detainee abuse that resulted in the deaths of two Afghan national detainees within 5 days of coming into the custody of Soldiers assigned to the XVIII Airborne Corps in December 2002.
b. COL M____ E. D____ and her staff were opposed to finding "any" Soldiers culpable for any offenses during the investigations, requiring him as the CID SJA to make the initial finding of probable cause in the two homicide investigations by CID. The memorandum for record was authored by MAJ J____ D____, a legal advisor detailed to assist the CID special agents working the two Afghan detainee homicide investigation after his initial opinion.
(1) In making the initial probable-cause (i.e., titling) decisions, he was overruling then-COL M____ E. D____, XVIII Airborne Corps SJA, as well as then-BG D____ V. W____, given his responsibilities as Assistant JAG for Military and Operational Law. BG D____ V. W____ had also served as XVIII Airborne Corps SJA and had supervisory responsibility over the OTJAG Criminal Law Division. Both then-BG D____ V. W____ and the OTJAG Criminal Division Chief did not support the way the CID homicide investigations were proceeding.
(2) MG D____ V. W____ (Retired) has been quoted as stating the applicant exercised poor judgment while serving as CID SJA; however, the applicant received an ACOM OER from the CG, Headquarters (HQ), CID, in May 2005. The only criticism he received based on his service as CID SJA was from these two former XVIII Airborne Corps SJA's. Ultimately, he was proven to have done the right thing in making the probable-cause decisions for the CID special agents. Soldiers either pled guilty or were tried and convicted for many of the offenses.
c. Supporting documents regarding bias by BG M____ E. D____ and MG D____ V. W____ (both now retired) include the following:
(1) Special Agent A____ B____'s (now retired) email confirms the CID special agents had to have him, as CID SJA, make the initial probable cause (titling) opinion rather than the XVIII Airborne Corps Office of the SJA;
(2) a memorandum for record by MAJ J____ D____ who was a specially-detailed legal advisor to the two CID homicide investigations after the applicant's initial probable cause decisions involving the two Afghan national detainee homicides while in the custody of Soldiers assigned to then COL M____ E. D____'s command. A detailed legal advisor was requested by the CID CG based on the lack of unbiased legal service support by COL M____ E. D____'s office and the widened scope of the investigations after his [the applicant's)]initial probable-cause determinations causing the CID special agents to conclude there were likely many additional witnesses and suspects to be interviewed. All of these cases were based primarily or exclusively on evidence already in the case files at the time BG M____ E. D____'s subordinates reviewed them;
(3) CID Report of Investigation (ROI) status reports in which first-time suspects are identified in the ROI in coordination with him; and
(4) biographies of BG M____ E. D____ and MG D____ V. W____, both retired, showing prior assignments as SJA, XVIII Airborne Corps.
d. Similar to the Trial Defense Service MAJ in the October 1989 ABCMR case, the certainty that the applicant received fair and equitable treatment by the board president, BG M____ E. D____ (FY05 SSB and FY07 COL JAGC PSB) and/or MG D____ V. W____ (FY06 COL JAGC PSB), is highly questionable. While the above evidence and supporting documents may not be conclusive that a biased action was taken by either GO as president of the PSB that considered him for promotion to COL, the circumstances in this case create the appearance of an injustice which should cause the ABCMR to lose confidence in the officer selection process as applied to him.
e. He has fully documented a basis for finding bias against him and the bias arose out of the two Afghan detainee homicide investigations by CID with direct legal services support by him while he was serving as CID SJA.
5. He also states this case is not like the ABCMR case involving a MAJ with a COM record of performance (Docket Number AR2004102694, dated 26 August 2004). His OER's as an LTC up through and including the FY07 COL JAGC PSB were all ACOM with his one COM OER being the first of two OER's from the same senior rater while serving as SJA, CID. The OER's are:
* OER ending period and senior rater block rating
* May 2007 ACOM as SJA Combined Security Transition Command-Afghanistan (O-6 position in combat zone)
* May 2006 ACOM Defense Logistics Agency (ISO COL A____ C____)
* May 2005 ACOM CG, CID, 2nd OER
* May 2004 COM CG, CID, 1st OER
* May 2003 ACOM
* May 2002 ACOM
* May 2001 academic ER Command and General Staff Course, Fort Leavenworth, KS
* even as a MAJ, he was regularly rated as an ACOM officer
* June 2000 COM as a promotable MAJ, DOR to LTC 1 July 2000
* June 1999 ACOM
* July 1998 ACOM
* even after being passed over three times, he continued to receive ACOM OER's
* June 2010 COM CG, U.S. Army Cadet Command (USACC), 2nd OER
* November 2009 ACOM CG, USACC, 1st OER
*
November 2008 ACOM
* May 2008 COM
6. He further addresses the issue of injustice, unfairness, and inequity with regard to the SSB not having co-equal membership. He states that he is the subject of injustice or unfairness and inequity as a result of the Army's failure to comply with the Army G-1 SOP specific membership requirements for COL JAGC PSB requiring co-equal membership between non-JAGC and JAGC board members. The Army implemented the co-equal basic branch and JAGC selection board membership requirement in an effort to stop the personal bias for or against JAGC officers considered for promotion by members of the JAGC from determining which officers are selected for promotion. In support of this statement, he requests the ABCMR take note of the fact that prior to the Chairman of the ABCMR letter to the Army General Counsel and the resulting Senate and DOD IG investigations into Army JAGC promotions that the JAGC had a majority vote in PSB's. The co-equal specific membership requirement was a direct result of the ABCMR Chairman's letter and the resulting investigations.
a. The FY05 SSB convened on 13 September 2006 had a JAGC majority membership in direct violation of the specific co-equal basic branch and JAGC membership requirement. It is unreasonable to maintain that the specific membership requirements of the Army G-1 SOP do not apply to SSB's for COL in the JAGC. The administrative error is material because the Army has implemented a policy, practice, and procedure for JAGC PSB that prevents a majority of JAGC officers from dictating who is or who is not selected for promotion in the Army.
b. By failing to comply with the Army G-1 SOP for COL JAGC PSB, the Army has allowed the opportunity for personal bias by members of the JAGC to determine the outcome of the FY05 SSB. Allowing a JAGC majority is contrary to the Army's published policy, practice, and procedure of requiring co-equal membership between non-JAGC and JAGC board members to prevent a JAGC majority from determining the outcome in JAGC and other special branch promotion selection boards since the JAGC investigations of 1989 to 1991.
c. The FY07 SSB convened on 13 January 2008 had only one JAGC BG and four non-JAGC BG's and was equally unjust, unfair, and inequitable. The FY07 SSB with four non-JAGC BG's and one JAGC GO did not give him, a JAGC officer, any advantage. An additional reason for co-equal membership is to ensure an understanding of JAGC assignments by half the membership of the PSB while not allowing a majority of JAGC or basic branch (i.e., non-JAGC officers) members to dictate whether an officer is promoted.
d. The ABCMR should also consider two or more JAGC COL SSB's, an FY97 SSB and FY98 SSB apparently held in August 2002, complied with the "specific" co-equal membership requirement with then BG S____ C. B____ and MG H____ as members. He requests that the ABCMR verify this; however, indications are these two SSB's were either or both the result of a court settlement and directed by the ABCMR. In the ABCMR decision, the SSB's were specifically required to comply with Title 10, USC, section 612, composition requirements. The ABCMR requirement to comply with Title 10, USC, section 612, is significant because Title 10, USC, section 628, states that SSB's will be composed the same way section 612 boards are composed. When the ABCMR directed the SSB, the Army complied with all the specific membership requirements, including the co-equal JAGC and basic branch (i.e., non-JAGC) membership requirement. In his case, the Army decision memorandum, dated 14 June 2010, attempts to have the ABCMR find that it is "fair" to allow a JAGC majority decide the outcome of a COL JAGC SSB while not allowing a JAGC officer majority in a regular COL JAGC PSB.
e. Title 10, USC, section 628(f)(2), specifically states that SSB's shall be composed in accordance with section 612 of this title. Section 612 is the section for regular PSB's. The Congressional intent was for those granted an SSB to have the same board composition that originally considered the officer. For the Army G-1 to maintain otherwise is not only unjust, it is illogical and violates the letter, purpose, and intent of Title 10, USC, section 628.
(1) The Board should consider these specific references from the Army G-1 SOP for PSB, chapter 2, in effect in 2002 through September 2009:
* paragraph 2-2a (Scope) this chapter applies to all AA and RC HQDA officer selection boards as defined in chapter 1
* paragraph 2-2b specifically, it encompasses promotion and special boards convened by the Secretariats for DA Selection Boards
* paragraph 2-5b (Board Membership-Composition) board composition will be as prescribed by Title 10, USC; Army regulation; and ODC, G-1 policy; see table 2-2 for specific board membership requirements
* table 2-2 (COL Promotion Board Membership Requirements) JAGC Board President GO JAGC, non-special branches one GO/two COL's (1=OPCA), special branches two COL's (JA), and total membership six
* special membership requirements minority one (from minority category having the greatest representation in the considered population) (here both SSB's included a black officer and the recorder specifically notes this fact on the SSB documents)
* female one (again noted on the record of both SSB proceedings by the recorder)
* other (Co-Equal Membership Between Non-Special Branch and JAGC) even when table 2-2 (AC COL Promotion Board Membership Requirements) was revised in January 2008, it specifically retained the "50/50 membership between basic branch and JAGC."
(2) There is no conflict with the Army G-1 SOP, chapter 6 (Special Boards), paragraph 6-1. Special boards are defined in chapter 1 of this SOP. Except for a board convened under the provisions of Title 10, USC, section 628 or section 14502, a special board is not itself a selection board.
(a) Army G-1 SOP, paragraph 6-1, while written unartfully, clearly supports the application of the specific COL JAGC PSB membership requirement of co-equal membership between basic branch and JAGC officer members to a COL JAGC SSB. Stated in the positive, an SSB convened under the provisions of Title 10, USC, section 628 is a promotion "selection" board, accordingly both the Army G-1 SOP for PSB, chapter 2 (Specific Membership Requirements), and chapter 6 (Special Boards) apply.
(b) Army G-1 SOP, paragraph 6-3, "membership" does not authorize or support the Army's failure to comply with its own specific membership requirement of co-equal membership between basic branch and JAGC's for COL JAGC PSB's (including SSB's).
(3) Paragraph 6-3a states, "To the extent required by law and as otherwise appropriate and practicable, special boards will consist of a minimum of five scoring members who meet the requirements established for regularly constituted selection boards." While this may be an unartfully written provision, paragraph 6-3 establishes a minimum for special boards in general; however, special "selection" boards convened under the provisions of Title 10, USC, section 628, for JAGC COL's or any other special branch, require six members. All of the underlined words from the Army G-1 SOP support application of the co-equal basic branch and JAGC officer membership requirement to COL JAGC SSB's.
(4) There is no conflict between the Army G-1 SOP, chapters 2 and 6. Chapter 6 establishes a minimum for all special boards while chapter 2 establishes additional membership requirements for special (promotion) "selection" boards convened under section 628 when the SSB is considering a JAGC officer or any other special branch officer for promotion selection in the Army.
f. It is unreasonable and unfair to maintain that the Army's reason for implementing the co-equal basic branch and JAGC officer membership requirement does not apply even more so to an SSB COL in the JAGC. In a COL JAGC SSB, there is only one JAGC officer being considered for promotion and the opportunity for bias is even greater.
g. Both SSB's complied with every other "specific membership" requirement in the Army G-1 SOP, table 2-2, (COL Promotion Board Membership Requirements), including a black officer and female as members when there is nothing in chapter 6 of the Army G-1 SOP imposing such specific membership requirements on SSB's convened under the provisions of Title 10, USC, section 628. The Army G-1 response that table 2-2 is only guidance is not supported by the plain language of the Army G-1 SOP; prior SSB's (SSB's complying with the co-equal requirement in August 2002); or the Army's policy, practice, and procedure of ensuring a minority and female are included in the membership of the SSB when there is nothing in chapter 6 imposing those specific membership requirement on SSB's convened under provisions of Title 10, USC, section 628. Additionally:
(1) His FY05 SSB membership was taken from the FY06 LTC JAGC PSB. COL A____ C____, the sixth member of the FY06 LTC JAGC PSB, appears to have been available to score his file but was not allowed to do so. (The ABCMR should take the time to compare the FY05 SSB and FY06 LTC JAGC board membership lists).
(2) He had just served with COL A____ C____ in direct support of him while he served as the Deputy Director of the DLA Operations Center (July 2005 to July 2006). He [the applicant] received an ACOM OER (July 2006) as well as a Joint Service Commendation Medal and Joint Service Achievement Medal for his legal support services to the DLA Operations Center during Hurricanes Katrina and Wilma Domestic Support and Response by DOD and DLA. While the May 2006 ACOM OER was not before the FY05 SSB, COL A____ C____ could have certainly "scored" his file based on his [COL A____ C____'s] personal knowledge of the applicant's performance and potential for service as a COL in the Army JAGC, given his recent direct legal services support to the DLA Operations Center. Excluding COL A____ C____ from scoring the applicant's file as part of the FY05 SSB, if he was in fact available to score the board file, is unjust, unfair, and inequitable.
(3) The Army G-1 has held SSB's that met the specific membership requirement of co-equal membership between basic branch and JAGC for a JAGC COL SSB.
h. Finally, the composition of the COL JAGC SSB's with only five members is contrary to law and applicable published policy and procedure (i.e., Army G-1 SOP, 2002). Such failures clearly constitute material administrative errors and unfairness by having him considered first by a majority of JAGC officers (FY05 SSB) and, secondly, by a majority of basic branch officers (FY07 SSB) unlike any regularly-convened COL JAGC PSB (including his primary zone FY05 COL JAGC PSB and the FY07 COL JAGC PSB). Title 10, USC, section 628(b)(1), defines a material unfairness as the action of the promotion board that considered the person was contrary to law or involved material error of fact or material administrative error. There is clear and convincing evidence of material administrative errors, violations of due process, and unfairness in this case.
7. He further addresses the issue of injustice, unfairness, and inequity with regard to five selectee comparison files not including above-the-zone officers. He states the Army G-1 SOP, paragraph 6-6b(1), applicable to selecting the 10 comparison files in an SSB convened under section 628, specifically requires one or more above-the-zone selected officer files be included in the five selectee comparison files. A requirement of comparing the case file (his file) against the above-the-zone selectees from the Regular PSB makes perfect sense when one considers the significant statistical difference in selection rates between primary-zone JAGC COL's (an over 60-percent selection rate) and above-the-zone JAGC COL's (5-10 percent). The results of COL JAGC boards from FY09 back to FY01 show only one to three of the above-the-zone JAGC LTC's considered by the PSB are selected for COL in the JAGC. The ABCMR can easily verify the accuracy of the low percentage selection rate for JAGC LTC's above the zone for promotion to COL by requesting the statistics from the Army G-1. The primary-zone and above-the-zone selection rates are included in the summary report on every Army PSB.
a. The purpose of the Army G-1 SOP, paragraph 6-6, requirement to include the above-the-zone selectees in the "five selectee comparison" files is clearly designed to compensate for the "advantage" a primary-zone officer has over an above-the-zone officer in any PSB.
b. In JAGC COL SSB's, given the small number of files (i.e., 10+1=11 board files), it is unrealistic to maintain that the SSB members do not factor in whether the officer is a primary-zone or above-the-zone officer in scoring the comparison files and the officer's file where the SSB is assigning "new scores" for the 10 comparison files, scoring the officer's case file, and the determining factor is whether the officer's case file (here his file) is equal to or higher than one of the five prior selectee files scored by the SSB members. Failing to include above-the-zone selectee files is grossly unfair to an above-the-zone officer case file. In the FY07 SSB, no above-the-zone selectee files were scored and compared to his score. Failing to include above-the-zone selectee comparison files does not compensate for the significant statistical disparity in primary-zone and above-the-zone officer selections by PSB's. The SSB members have the time and opportunity to really consider whether each file being scored is a primary-zone or above-the-zone officer. It is a statistical reality that PSB members generally score above-the-zone files lower than primary-zone files. Why would it be any different in an SSB?
c. It is equally unfair not to include the above-the-zone selectee files for scoring by the SSB members even when the SSB is reconsidering a primary-zone officer for promotion selection (i.e., as in the FY05 SSB). Fairness and equity as well as the well-known statistical record regarding selection rates between primary-zone and above-the-zone officers "requires" comparing the officer case file score [board file] against at least some or all of the above-the-zone selectee file scores in any SSB. The comparison is warranted even where the above-the-zone selectee's file scored higher in the regular PSB than a primary-zone selectee's file. In the SSB, the members are establishing new scores for all 10 files and comparing those new scores against the officer case file score.
d. If the original drafters of the Army G-1 SOP, paragraph 6-6b(1), did not really intend for above-the-zone selectees to be included in the five comparison selectee files, they would have written the same language in the paragraph regarding the five non-selectee comparison files. It is only in specifying the five selectee comparison files that there is a requirement that the files "will be from in and above the zone." It is unrealistic to maintain that how the SSB members score the other files they are reviewing and scoring does not influence how they score the officer's case file.
e. The ABCMR should consider the practical reality resulting from the Army G-1 SOP and practice of requiring a JAGC GO to serve as a member of every SSB. There is a high probability that at least one member of the SSB knows which five of the 10 comparison files were previously selected as COL's in the JAGC. It is unreasonable to maintain that such prior knowledge does not influence how an SSB member with such prior knowledge "scores" the 11 files (i.e., 10+1). This Army G-1 practice and procedure make the co-equal basic branch and JAGC officer membership requirement even more important and necessary for fairness and equity to a JAGC or any special branch officer being reconsidered for promotion by an SSB. Even when there is compliance with the co-equal membership requirement there is questionable fairness by requiring or allowing a JAGC GO to serve on an SSB. It is a well-known fact in the JAGC that any one member of a COL JAGC PSB can keep an officer from being selected (i.e., just by scoring the file low), while one officer cannot get an officer selected.
(1) The competitive LTC assignments are selected by TJAG in round table meetings and discussions with the other JAGC GO's. This means the JAGC GO's discuss the "officers" and whether they are right for assignments that effectively make them highly likely for selection by a COL JAGC PSB. In short, the JAGC GO's largely pre-select/determine whom they want to promote to COL in the JAGC during the round tables.
(2) Can anyone seriously doubt that prior round table discussions do not influence how the JAGC GO SSB member "scores" the 11 board files? Consider as well that the JAGC GO probably knows which are the six non-selectee files and the five selectee files.
f. In the FY05 SSB, based on the DOR list provided in response to a Freedom of Information Act (FOIA) request, it appears an above-the-zone selectee was included in the 10 comparison files; however, he [the applicant] requests that the ABCMR confirm whether the Army G-1 SOP, paragraph 6-6, requirement to include above-the-zone selectees in the five selectee comparison files was met.
g. The DOR list for the FY07 SSB does not appear to include either of the above-the-zone selectees by the FY07 COL JAGC PSB. Further, the 28 May 2010 G-1 response memorandum indicates the FY07 SSB did not include any above-the-zone selectees in the 10 comparison files.
(1) The Army G-1 response basically states the lawyers from OTJAG and Army General Counsel have opined that it is not legally objectionable to fail to include above-the-zone selectee files in the 10 comparison files, even though the published Army G-1 SOP, establishes a policy, practice, and procedure of including above-the-zone selectee files in the SSB.
(2) The board can easily confirm if either or both of the above-the-zone FY07 selectees, COL M____ B____ or COL D____ H____, were not included in the 10 comparison files in the FY07 SSB.
h. Failing to include above-the-zone selectees in the five selectees comparison files is a material administrative error while it may not be legally objectionable to the Army's lawyers. The lack of above-the-zone selectee files puts an above-the-zone officer case file as compared to five primary-zone officer selectee files at a distinct and unfair scoring disadvantage in any SSB, particularly one involving a JAGC officer where there is a high probability that one or more JAGC SSB members know which files are prior selectees and non-selectees for COL in the JAGC.
8. It is unfair for the Army to change a policy in February 2008 to allow an SSB member, BG C____ J. T____, to then serve as president of the FY08 COL JAGC PSB in August 2008, and thereby score his file twice in succession for the same competitive category (JAGC) and grade (COL/O-6) to comply with a policy and procedure to have a "JAGC GO" serve on "every" JAGC PSB (including SSB's) when Title 10, USC, section 612, specifically states, "no officer may be a member of two successive selection boards convened under section 611(a) of this title for the consideration of officers of the same competitive category and grade." A plain reading of section 628 warrants a determination by the ABCMR that the Congressional intent is that a section 628 SSB comply with all the same requirements that are applicable to a regular PSB convened under provisions sections 612 and 611(a). The successive scoring by BG C____ J. T____ of the applicant's board file for COL in 2008 violates the purpose and intent of the law and is an unnecessary injustice and unfairness to the officer.
9. In proposing the change in January 2008 to the DMPM (after her decision to grant him an SSB based on successive scoring by two JAGC officers of his file), the main stated reason for proposing a change was the limited number of JAGC GO's available to serve on JAGC PSB. While there are a very limited number of JAGC GO's (then 6, now 7), there is no shortage of JAGC COL's (then 132 AD authorizations and currently 142). Even if the low number of available JAGC GO's were a valid basis for violating sections 612 and 628, it is very easy to comply with the law against successive scoring of an officer's file by the same officer. Simply use COL's for the COL JAGC SSB's and use JAGC GO's for the regular JAGC PSB. There is no Title 10 provision requiring a JAGC GO to serve on a COL JAGC SSB. There is, however, a specific law that no board member should score an officer's file for the next grade in succession.
10. He also addresses the issue of injustice, unfairness, and inequity with regard to the successive scoring by the COL JAGC board member three times (September 2006, August 2007, and August 2009). He states the ABCMR has determined that even one biased or questionable PSB member can taint a board proceeding for an officer. The Army's 28 May 2010 decision basically states that while the applicant is correct that allowing COL J____M. G____ to unnecessarily score his file a third time in August 2009 violates the Army G-1 SOP for selecting PSB members, because the other five PSB members were properly selected, there is no material administrative error.
a. One has to question the fairness of the COL JAGC FY09 PSB Proceedings as to him and whether COL J____M. G____ could have given his file fair and equitable consideration even with the addition of two ACOM OER's since she had scored his file in August 2007 as a member of the FY07 COL JAGC PSB.
b. There is a high probability that prior to scoring his file as a member of the FY09 COL JAGC PSB, COL J____M. G____ knew about his receiving the FY07 SSB as a result of COL J____M. G____'s and her mentor, BG M____ D____'s, successive scoring of his file. Given BG M____ D____'s position in the JAGC (prior to her retirement) and prior service as Deputy Chief, PP&TO, there is a high probability that she was informed of the applicant's request for and receipt of an FY07 SSB and if BG M____ D____ knew COL J____M. G____ knew as well. BG M____ D____ and COL J____M. G____ are friends and have served together in the National Capital Region for many years. If COL J____M. G____ knew of his complaint regarding COL J____M. G____ scoring his file twice in succession in less than a year should she have not declined to score his file during the FY09 COL JAGC PSB or at least made this information known to the board president and recorder? If a hearing is granted by the ABCMR this is an area for inquiry by the ABCMR.
c. For the Army to allow even one improper PSB member is not only unfair, it shocks the conscious and warrants the ABCMR requesting another investigation of JAGC promotion, personnel policies, and practices. PSB proceedings should be above reproach and executed in strict compliance with all applicable law, regulation, policies, and procedures. The Board should see the Secretary of the Army memorandum of instruction for each of the subject PSB's for language to this effect. Here history is repeating itself, the special branch that should be held to the highest standard, the Army JAGC, is again appearing to operate outside the law and not in strict compliance with published procedure and policy applicable to promotions.
d. The perception throughout the JAGC is that by allowing COL J____M. G____ to serve on so many field-grade promotion boards along with her mentor, BG M____ D____, together they have caused higher female selections and selections of LTC's out of the litigation side of the JAGC for COL. They served together on the FY06 LTC and FY07 COL JAGC PSB, while COL J____M. G____ served alone on the FY09 COL JAGC PSB. The Board should review the record of the one above-the-zone officer selected by the FY09 COL JAGC PSB and compare the prior assignments of COL J____M. G____. Check the female selection percentages on the PSB on which BG M____ D____ and COL J____M. G____ were "selected" to serve together as compared to prior JAGC LTC and COL selection board female officer selection percentages.
e. There is no personal animus against COL J____M. G____ here; however, there is an appearance of doing just what the DOD IG ROI states it did not find in 1990 having particular COL's in the JAGC serve repeatedly on PSB's. The DOD IG ROI reads, "We were told that an examination of promotion board membership over a 6-year period would reveal patterns of repeat membership by former executive officers and PP&TO former staff members. We did not find these patterns among the officers below the grade of BG."
f. If the ABCMR concludes the chronology of this case warrants another investigation of the JAGC promotion and personnel management systems, he suggests the ABCMR include in such a request an investigation of how assignments for JAGC LTC and some MAJ leadership positions are made. The practical reality is TJAG is effectively allowed by the Army to engage in pre-selection of two-thirds of the JAGC COL's. The current assignment SOP, while not required by law or regulation, is to allow TJAG to serve as the "sole" decision authority on which JAGC LTCs are assigned to leadership positions with nearly a 100-percent selection rate for COL, such as SJA of a numbered division as well as other known competitive assignments. All one has to do is list the last two assignments of COL selectees for the last 20 years and a pattern is clearly apparent regarding what assignments have a high selection rate for COL in the Army JAGC. Yes, every branch has certain assignments that are known to have high selection rates for COL. In the other branches selections for those competitive high-select rate assignments (e.g., command) are made by a board composed of officers from other branches rather than only the senior officer of the branch.
(1) With the exception of 2nd Infantry Division from 1987 to 2007, no Black, Hispanic or Asian LTC was selected by TJAG to serve as the SJA of a numbered division. Realize that every LTC selected by TJAG to serve as the SJA of a numbered division made COL from 1987 to 2007.
(2) The current JAGC leadership appears to be doing a much better job of selecting minority officers for what are known competitive assignments for making COL. There is still a basis for looking at the JAGC Personnel Management System; there is still no check and balance on the assignment authority of TJAG. Equal opportunity for competitive assignments in the Army JAGC depends solely on whether and how the current TJAG executes assignments to those known competitive assignments for promotion to the highest realistic rank any JAGC can aspire to obtain in the Army JAGC, COL. Currently, we have a TJAG and DJAG who both support equal opportunity in the JAGC as evidenced by LTC assignments they are making and the resulting selection of minority LTC's for COL. What happens with the next TJAG and DJAG? The Board should check the record of assignments from 1987 to 2007 for minority LTCs in the Army JAGC and LTCs selected to serve as SJA for a Numbered Division (i.e., combat unit).
(3) On average, there were 20 minority (racial and national origin) LTCs in the Army JAGC during the 20 year period, 1987 to 2007; and while the Army PSB selected these 20 or so officers for LTC, the JAGC leadership did not deem any one of the 20 good enough to serve as the SJA of a combat unit in the Army (i.e., numbered division): DSJA yes SJA No. (Most of the numbered division SJA positions have or are being upgraded to require an O-6; thereby making the DSJA positions the new competitive assignments for LTCs to increase their probability of making COL check the COL selection rates for those selected over the next decade to serve as DSJA of the Army's numbered divisions and Corps, if the SJA positions are changed to require a COL).
11. He also addresses the OER issue. He states the Board should consider the original OER appeal. The ASRB decision fails to address the stated basis for the OER appeal: Rater failure to comply with mandatory comment requirements on promotion potential, military schools and command (i.e., for a JAGC serving as an SJA) by the rater. The ASRB decision states the OER appeal fails because it does not include statements by prior PSB members regarding what they thought of the subject OER; while another part of the Army has determined (incorrectly) the applicant is barred from receiving voluntary statements from the prior board members regarding the May 2003 OER citing Title 10, USC, section 613a, which bars release of board member deliberations.
a. The ASRB decision never addresses whether the rater comments violate the then applicable Army Regulation as stated and cited in the OER appeal.
b. The Army's determination that a prior board member's comment on his OER would violate the law prohibiting disclosure of board deliberations is not supported by a plain reading of the applicable law, Title 10, USC, section 613a. Clearly the ABCMR knows this since there are published ABCMR decisions in which the ABCMR has questioned PSB members regarding their assessment of portions of an officer's file and even questioned the prior board members about their assessment of the officer. He, the applicant, never proposed questioning the prior board members about how they scored his board file, only the board members' opinion regarding the May 2003 OER rater narrative comments.
c. If the rater's closing narrative comment in the May 2003 OER, as compared to the May 2002 OER narrative comments which clearly complied with the mandatory requirements, can be read as a negative comment, fairness warrants the relief requested in the original OER appeal.
d. A negative comment in an OER makes the OER a referred OER. In this case, the mandatory referred OER processing procedures were not applied in the processing of the May 2003 OER and while this is an ACOM OER by the senior rater, the Board should give serious consideration to the points in the OER appeal regarding JAGC officer members and how senior the JAGC rater was in the JAGC. These undisputed facts clearly create the possibility that one of the JAGC board members could have been influenced to score his board file lower by this senior JAGC rater. It well known that any one board member can keep an officer from being selected for COL by simply scoring the officer's file low. Finally, there is a high probability that every JAGC member of the FY05, FY06, and FY07 COL JAGC PSB knew the JAGC Rater in the May 2003 OER. This too is an area for inquiry by the ABCMR if a hearing is granted in this case.
e. For all these reasons, fairness and equity warrant the original relief requested in the OER appeal: Deletion of the rater's narrative comments; an appropriate instruction to any future PSB's; and SSB's for any prior PSB's which considered his board file with the May 2003 OER, prior to the amendment.
12. He further addresses his ORB corrections for the FY05 SSB. He states if new SSB's are recommended by the ABCMR, he requests a corrected copy of his ORB be considered by the second FY05 SSB. In late July 2006, the JAGC Board's Officer pointed out that his ORB can reflect a 6-month deployment to Fort Leavenworth, KS, in support of Operation Noble Eagle, 22 October 2001 to 1 May 2002, even though it was not an overseas deployment.
a. Human Resources Command (HRC) and ARMY G-1 failed to notify him 30 days prior to the convening of the FY05 SSB. "HRC will send written notification to an officer slated to be considered by an SSB at least 30 days before the board convenes (Army Regulation 600-8-29, Para 7-4a)." HRC's failure to comply with the prior notice requirement when the FY05 SSB was to be convened is yet another material administrative error: It prevented him from requesting the corrected ORB be considered by the FY05 SSB or from requesting a delay in the FY05 SSB while a Special Review Board considered whether the corrected ORB could be made a part of the file for the FY05 SSB. In either case, he was adversely impacted by HRC's failure to provide the required minimum 30 days prior notification of the FY05 SSB.
b. Right after 9-11, the CG, TRADOC, Fort Monroe, VA, directed the formation of a team to train and exercise all of the TRADOC installations on Force Protection. It required a JAGC LTC. Initially a request went out to all the JAGC LTC's in TRADOC. None volunteered from the 16 TRADOC installations. He volunteered to leave his DSJA assignment and serve as the Legal Observer -Trainer for the newly-formed team, Battle Command Training Program (BCTP) Group Echo. He was TDY (temporary duty), operating out of Fort Leavenworth, KS, with travel to all the TRADOC installations twice during the 6-month CONUS deployment.
c. The prior board's officer, responsible for assisting JAGC officers with preparing their files for the FY05 COL JAGC board never pointed out the ability to show the non-overseas deployment on the ORB nor did anyone in S-1, Army G-1, or HRC. He did not know or learn that an ORB could reflect non-overseas deployments until July 2006 nor apparently did the S-1 personnel with whom he regularly reviewed the ORB prior to consideration for military schooling or promotion by HQDA Boards.
d. In August 2006, the ORB was corrected to list the assignment to Fort Leavenworth as an Observer Trainer, BCTP Group Echo. The corrected ORB was placed in his board file in time for the FY06 COL JAGC board, convened on 15 August 2006, but not his board file for the FY05 SSB in Sep 2006 as a direct result of the Army's failure to provide the required 30 days prior notice of the FY05 SSB.
13. The applicant provides:
* Army G-1 SOP for officer selection boards and board procedures
* Army G-1 decision memorandum
* Board membership for FY-5 through FY09 COL JAGC PSB
* DMPM memorandum granting FY07 SSB reconsideration
* DMPM approval to change Army G-1 SSB membership restriction to allow successive voting by SSB member for a regular board
* CID statement regarding probable cause in two investigations involving homicide of Afghani detainees
* Memorandum for record
* CIDC third and fourth status reports regarding the death of Afghan detainees
* CIDC Freedom of Information Act (FOIA) request
* OER's from 1998 through 2010
* academic evaluation reports
* SSB decision memorandum with membership lists for FY07 and FY05 SSB's
* SSB, August 1998 reconsideration and August 1997 reconsideration held in August 2002
* extracts of Title 10, USC, sections 628 and 611
* Army G-1 SOP, 2002 selection boards and special boards
* Army G-1 SOP, October 2009, board membership
* Army G-1 FOIA response
* applicant's FOIA appeal
* Military Personnel (MILPER) Message Number 07-104, subject: FY07 COL JAGC Zones of Consideration
* FY07 COL JAGC promotion Selection Board
* applicant's appeal of the 2003 OER
* denial letter from the Army Special Review Board
* JAGC minority and minority attorney population
* biographies of selected officers
* request for reconsideration by the FY06 SSB
* additional CIDC status reports
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed as a Regular Army JAGC first lieutenant and executed an oath of office on 11 May 1995. He served in a variety of stateside and/or overseas assignments and he was promoted to MAJ on 1 March 1995 and LTC on 1 July 2000.
2. During the month of May 2002, he received the contested OER a permanent change of station OER which covered 12 months of rated time from 2 June 2002 through 21 May 2003 for his duties serving as the "DSJA/Chief, Personnel and Environmental Law" while assigned to Office of the SJA, HQ, TRADOC, Fort Monroe, VA. His rater was COL J____ H. R____, the SJA; and his senior rater was LTG L____ R. J____, the Deputy CG/Chief of Staff, TRADOC. The OER shows the following entries:
a. In Part IV (Performance Evaluation Professionalism), the rater box-checked the "Yes" blocks for all seven Army values and the "Yes" block for the appropriate attributes, skills, and actions.
b. In Part Va (Performance and Potential Evaluation Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Outstanding Performance Must Promote) block and he entered the following comments as to potential, "In short, a superb performance by a great attorney/Soldier who consistently displayed the robust potential to be a significant leader in the Corps." No comments were made about his potential.
c. In Part VIIa (Senior Rater Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Best Qualified" block and a second "X" in the "Yes" block to indicate he senior rated four officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review. The senior rater listed three future assignments for which the applicant was best suited, rated the applicant's potential as "ACOM" and entered appropriate comments in Part VIIc.
3. The applicant subsequently received the following OER's:
* Annual, 22 May 2003 through 21 May 2004; Outstanding Performance Must Promote; Best Qualified; COM
* Annual, 22 May 2004 through 21 May 2005; Outstanding Performance Must Promote; Best Qualified; ACOM
4. He was considered for promotion to COL, primary zone, by the FY05 JAGC COL APL that convened in August 2005, but he was not selected. The FY05 COL JAGC PSB consisted of BG S____ C. B____ as President; and BG M____ K. M____, COL D____ G. C____ (JAGC), COL K____ M. S____, COL H____ E. B____ (U.S. Army Reserve (USAR)), and COL F____ D. D____ (JAGC) as members.
5. On 26 May 2006, a memorandum was initiated to the Secretariat for Department of the Army Selection Boards, requesting the applicant be reconsidered for promotion to COL by an SSB under the FY05 criteria. The Army G-1 directed that his file contained a memorandum that stated he was a member of the Acquisition Law Specialty Program would be removed from his file.
6. During the month of May 2006, the applicant received an annual OER from 22 May 2005 through 21 May 2006. His rater rated him "Outstanding Performance Must Promote" and his senior rater rated him "Best Qualified" and "ACOM."
7. He was considered for promotion to COL by the FY06 SJA COL APL that convened in August 2006 but he was not selected. The FY06 COL JAGC PSB consisted of MG D____ V. W____ as President; and BG M____ A. G____, COL M____ A. R____ (JAGC), COL J____ M. C____, COL T____ J. B____, and COL S____ E. R____ (JAGC) as members.
8. On 13 September 2006, by letter from the Secretariat for Department of the Army Selection Boards, the applicant was informed that a board of officers convened on 13 September 2005, in response to his 14 June 2005 request for an SSB, and considered his file for promotion to COL by an SSB.
9. He was considered by an SSB that found him fully qualified but not best qualified to assume the duties of the next higher grade and therefore he was not recommended for promotion. The SSB membership consisted of BG M____ E. D____ as President; and COL G____ O. B____ (JAGC), COL D____ S. S____, COL J____M. G____ (JAGC), and COL D____ R. M____ as members.
10. During the month of May 2007, the applicant received an annual OER from 22 May 2006 through 21 May 2007. His rater rated him "Outstanding Performance Must Promote" and his senior rater rated him "Best Qualified" and "ACOM."
11. He was considered for promotion to COL by the FY07 JAGC COL APL that convened in August 2007, but he was not selected. The FY07 COL JAGC PSB consisted of MG M____ E. D____ as President; and BG J____ W. P____, COL A____ B. K____, COL J____M. G____ (JAGC), COL S____ E. C____ (JAGC), and COL T____ F. S____ as members.
12. On 10 January 2008, he appealed the contested OER (2 June 2002 through 21 May 2003) to the ASRB. He contended that the rater did not enter comments about his potential in Part Va. He also requested reconsideration for promotion to COL by the FY05 and the FY06 COL PSB's. He claimed the omission of comments about potential by his rater had a negative impact and sent a "red flag" to the promotion board.
13. On 22 January 2008, the applicant was informed by letter from the Secretariat for Department of the Army Selection Boards that a board of officers convened on 17 January 2008 and considered his file for promotion to COL by an SSB. Reconsideration was granted by the Army G-1 because of the consecutive use of two of the same board members from the FY05 SSB for the FY07 regular board.
14. He was considered by an SSB under the same criteria established for the FY07 COL JAGC PSB that convened on 14 August 2007. The SSB stated the applicant was originally considered but not recommended by the FY07 board. The SSB found him neither fully qualified nor best qualified to assume the duties of the next higher grade and therefore he was not recommended for promotion. The SSB membership consisted of BG JEC as President; and BG C____ J. T____ (JAGC), BG R____ D. J____, BG Pa__ E. M____, and BG Ph__ E. M____ as members.
15. On 7 August 2008, the ASRB determined the applicant did not provide clear and convincing evidence of a strong and compelling nature to show that the promotion board that did not select him interpreted this OER as a "do not promote" as he contended. The ASRB denied his petition.
16. He was considered for promotion to COL by the FY08 JAGC COL APL that convened in August 2008, but he was not selected. The FY08 COL JAGC PSB consisted of BG C____ J. T____; and BG J____ P. D____, COL B____ T. R____, COL M____ W. M____ (JAGC), COL S____ W. R____ (JAGC), and COL D____ K. K____ as members.
17. He was considered for promotion to COL by the FY09 JAGC COL APL that convened in August 2009, but he was not selected. The FY09 COL JAGC PSB consisted of LTG D____ K. C____ and BG R____ C. L____, COL J____M. G____ (JAGC), COL S____ J. B____ (JAGC), COL R____ E. A____, and COL A____ L. K____ as members.
18. The applicant provides:
a. a memorandum to the General Counsel, dated 11 October 1989, wherein the Chairman of the ABCMR recommended an investigation into the actions of command influence by senior JAGC officers during promotion boards;
b. a report on the investigation of issues concerning nominations for GO positions in the Army's JAGC. The report, dated 3 January 1991, confirmed the existence of unlawful command influence;
c. a DOD Office of the Inspector General ROI, dated 25 May 1990. The investigation centered around issues relating to the promotion nomination of COL J____ R. B____, JAGC, and the propriety of COL J____ R. B____'s participation in a 1988 JAGC LTC selection board which did not promote MAJ "X" who had been a significant participant in court cases on behalf of defendants who were critical of the CG, 3rd Armored Division, MG T____ E. A____ (Retired), and COL B____, the 3rd Armored Division SJA;
d. a sheet listing COL promotion board membership requirements. For JAGC, the sheet identifies the requirements for JAGC membership to have six members with a JAGC GO as a president and two JAGC COL's and one GO and two non-special branches COL's;
e. a letter from MG G____ S. F____, the Acting Deputy Chief of Staff, G-1, dated 17 December 2009, in response to the applicant's 23 September 2009 letter wherein he requested an SSB because of alleged personal or systematic bias. The letter notified him that the information he provided failed to indicate improper bias on the part of the selection board and that his request did not meet the standards of granting an SSB;
f. a letter from the Deputy Chief of Staff, G-1, dated 23 December 2009, responding to the applicant's 17 December 2009 letter wherein he requested an SSB by the FY05 and the FY07 boards. The letter addressed his issue and concluded that his request did not meet the standards of granting an SSB;
g. a letter from the Army G-1, dated 28 May 2010, responding to the applicant's 23 December 2009 email requesting a further review of his concerns.
In that email, he included issues that had not been included in his initial correspondence. Because of that, it was agreed to review the additional information he provided. After a thorough review of the information he provided and based on the standards outlined below, the information provided did not meet the standards for granting an SSB. As stated in a previous response, Title 10, USC, section 628, delineates the following two categories of SSB's: (1) persons not considered by promotion boards due to administrative error (a person who should have been considered for selection for promotion from in or above the promotion zone but was not considered shall be entitled to an SSB) and (2) persons considered by promotion boards in an unfair manner (when it is determined that the action of the board that considered an officer for promotion involved material error of fact or when the board did not have material information before it for its consideration). In his 23 December 2009 email, as well as subsequent telephonic conversations and emails, it was determined that this office would address the following issues and provide a final response on this matter. The applicant identified the following concerns as bases for an additional SSB:
(1) COL G____ M. G____ (member of the FY07 board) Membership Improper Bias He alleged that COL G____ M. G____ is biased against him, but there is no evidence of improper bias beyond his allegation. There is no way to determine that COL G____ M. G____'s service as a member of the SSB and PSB's considering him for promotion was unfair or otherwise contrary to law;
(2) Frequency of Member Service He argued that participation by COL G____ M. G____ on three selection boards violated the requirements of paragraph 2-5b of the 2002 edition of the Army G-1 SOP that cites, "whenever possible, board composition will reflect a worldwide distribution board members will not be selected predominantly from one command or geographic region." Although COL G____ M. G____ was assigned to two commands within the same geographic region during the period of her service on the selection boards in question, there is no indication that the total membership compositions of these boards violated this provision of the Army G-1 SOP. This provision of the Army G-1 SOP reflects policy preferences of the Office of the Deputy Chief of Staff,
G-1. There is no corresponding limitation on selection board membership in the applicable statute, Department of Defense Instruction, or Army regulation;
(3) MG C____ J. T____ [formerly BG C____ J. T____] Membership The applicant alleged that BG C____ J. T____'s participation as a member of January 2008 SSB and as the president of the FY08 regular board is contrary to Title 10, USC, section 612(b), which provides that no officer may be a member of two successive selection boards convened under section 611(a) of this title for the consideration of officers of the same competitive category and grade. The language of this section of statute indicated that this portion of Title 10, USC, section 612, is not applicable to SSB's because they are convened under the provisions of Title 10, USC, section 628;
(4) SSB Membership Requirements The applicant also argued that the membership of a previously granted SSB should have, but did not comply with the "co-equal" voting member requirement of the 2002 edition of the Army G-1 SOP, paragraph 6-3. Paragraph 6-3 does not require co-equal representation between basic branch and special branch members on SSB's. Further, the membership for SSB Number 1-13 (FY07 COL JAGC PSB) met all applicable membership requirements, including the requirement of Title 10, USC, section 612; Army Regulation 600-8-29 (Officer Promotions); and paragraph 6-3 of the 2002 edition of the Army G-1 SOP. Specifically, SSB Number 1-13 (FY07) consisted of at least five officers of the same Armed Forces as the applicant; each member was an officer on the active duty list (ADL); no member was serving in a grade below MAJ; each member was in a grade higher than the applicant; at least one member was a member of the same competitive category as him; no member of SSB Number 1-13 was a member of two successive selection boards convened to consider officers of his competitive category and grade; and no member of SSB Number 1-13 was also a member of the FY07 COL JAGC PSB;
(5) Above-the-zone Comparison Files He argued that SSB comparison files consist of a 50/50 mix of primary and above-the-zone files. In accordance with Title 10, USC, section 628, SSB's convened under the provisions of Title 10, USC, section 628(b)(1), are provided a sampling of records of officers recommended for promotion and those officer who were not recommended for promotion. The Army G-1 SOP, paragraph 5-6b(1), of the current version directs that an SSB will have a total of 10 comparison files; 5 recommended for promotion from in and above the zone and 5 comparison records not recommended for promotion. OTJAG and Office of the General Counsel (OGC) have no legal objection to this policy and have opined that there is no legal requirement that SSB comparison files necessarily consist of both primary-zone and above-the-zone recommended files or that at least two of the recommended comparison files must necessarily be above-the-zone files;
(6) Disclosure of Board Member Deliberations He requested a written response from this office and the offices of HRC Promotion Branch and DA Secretariat ruling on whether he can solicit statements from PSB members who had considered him for promotion concerning their impressions of an OER in his board file. This would violate the board oath concerning disclosure of board deliberations. Additionally, such information would be exempt from disclosure under the provisions of Title 5, USC, section 552(b)(5);
h. a letter from the Army G-1, dated 14 June 2010, responding to his 1 June 2010 email. In his email, he stated that he did not feel the Army G-1 had adequately addressed in its 28 May 2010 letter to him the applicability of chapter 2, Deputy Chief of Staff, G-1, Officer Selection Board SOP, dated 7 August 2002, to SSB's, specifically in regard to co-equal board membership. In addition, he also requested that we further define the SSB standard. The SSB standard as delineated in Title 10, USC, section 628, provides for two categories of SSB's: (1) persons not considered by promotion boards due to administrative error and (2) persons considered by promotion boards in an unfair manner when it is determined that the action of the board that considered an officer for promotion involved material unfairness with respect to that person. Material unfairness is further defined as: (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 a material error or fact or material administrative error or (b) the board did not have before it for consideration material information. He argued that the membership of previously granted SSB's should have, but did not comply with the "coequal" voting member requirement of the board membership matrices contained in chapter 2 of the 2002 edition of the Army G-1 SOP. Chapter 2 provides general information for the conduct of HQDA centralized promotion boards and only provides general reference to the composition of board membership within the text of chapter 2, paragraph 2-5 (Board Membership). This paragraph follows guidance prescribed in Title 10, USC, section 612; Army regulation; and Army G-1 policy. Subsequent chapters of the Army G-1 SOP provide specific and detailed information for specific types of boards, including SSB's. Specific information regarding SSB's is contained in chapter 6 of the 2002 edition of the Army G-1 SOP. Paragraph 6-3 (Membership) outlines the specific requirements for SSB's. That paragraph does not require co-equal representation between basic branch and special branch members on SSB's. It is also noted that neither Title 10 nor Army regulations require co-equal representation on SSB's. The only reference to co-equal membership within the 2002 edition of the Army G-1 SOP is within the board membership matrices contained in chapter 2. These matrices provide specific information for PSB's and are not applicable to SSB's. The letter concluded by stating that after a detailed and thorough review of the issues he raised, and a subsequent review of the applicability of chapter 2 of the 2002 edition of the Army G-1 SOP to SSB's, it was determined that his request did not meet the standards for granting an SSB;
i. an Army staffing form, dated 27 December 2007, recommending a deletion of the restriction on SSB members serving on the next regularly-scheduled board. The memorandum stated that current Army G-1 policy restricted SSB board members from serving on the next regularly-scheduled board. Although the intent of the policy was to ensure fairness and equity, the policy had to weigh against having adequate branch representation on SSB's. The limited number of special branch GO's and COL's, coupled with the time requirement to complete SSB's within 120 days, would require an exception to policy for all regular boards in advance. Accordingly, and subsequent to a legal review for legal sufficiency by The Judge Advocate General (TJAG), the DMPM approved the recommended course of action on 25 February 2008; and
j. various memoranda, reports of investigation, newspaper articles, and other correspondence in relation to the death of two Afghan detainees while in U.S. custody. The applicant was the SJA for CID. He and then-BG M____ E. D____ (then working in the Office of the SJA, XVIII Airborne Corps, and later the president of the FY07 JAGC COL APL that convened in August 2007) disagreed on the cause of and/or circumstances that led to the detainees' death.
19. 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 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.
20. Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the OER system.
a. Paragraph 3-20 stated that Part V of the form provided for the rater's evaluation of the rated officer's performance and potential. The rater comments on specific aspects of performance and potential. These comments are mandatory.
b. Paragraphs 3-57 and 6-6a provided that an OER accepted by HQDA 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.
c. Paragraph 6-10 stated 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.
21. Title 10, USC, section 628, addresses SSB's.
a. Subsection 628a (Persons Not Considered by Promotion Boards Due to Administrative Error).
(1) If the Secretary of the Military Department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered, or the name of a person that should have been placed on an all-fully-qualified officers list under section 624(a)(3) of this title was not so placed, the Secretary shall convene an SSB under this subsection to determine whether that person (whether or not then on AD) should be recommended for promotion.
(2) An SSB convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record would have appeared to the board that should have considered him. That record shall be compared with a sampling of the records of those officers of the same competitive category who were recommended for promotion and those officers who were not recommended for promotion by the board that should have considered him.
(3) If an SSB convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration for selection for appointment to a grade other than a GO or flag officer grade, the person shall be considered to have failed of selection for promotion.
b. Subsection 628b (Persons Considered by Promotion Boards in Unfair Manner).
(1) 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 AD) 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.
(2) An SSB convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record, if corrected, would have appeared to the board that considered him. That record shall be compared with the records of a sampling of those officers of the same competitive category who were recommended for promotion and those officers who were not recommended for promotion by the board that considered him.
(3) If an SSB convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration, the person incurs no additional failure of selection for promotion.
c. Subsection 628c (Reports of Boards).
(1) Each SSB convened under this section shall submit a written report to the Secretary of the Military Department concerned signed by each member of the board containing the name of each person it recommends for promotion and certifying that the board has carefully considered the record of each person whose name was referred to it.
(2) The provisions of sections 617(b) and 618 of this title apply to the report and proceedings of an SSB convened under this section in the same manner as they apply to the report and proceedings of an SSB convened under section 611(a) of this title.
d. Subsection 628d (Appointment of Persons Selected by Boards).
(1) If the report of an SSB convened under this section, as approved by the President, recommends for promotion to the next higher grade a person whose name was referred to it for consideration, that person shall, as soon as practicable, be appointed to that grade in accordance with subsections (b), (c), and (d) of section 624 of this title.
(2) A person who is appointed to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the ADL as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him.
e. Subsections 628e (Deceased Persons), 628g (Judicial Review), 628h (Limitations of Other Jurisdiction), and 628i (Existing Jurisdiction) are not applicable to the applicant.
f. Convening of Boards. A board convened under this section: (1) shall be convened under regulations prescribed by the Secretary of Defense; (2) shall be composed in accordance with section 612 of this title or, in the case of board to consider a warrant officer or former warrant officer, in accordance with section 573 of this title and regulations prescribed by the Secretary of the Military Department concerned; and (3) shall be subject to the provisions of section 613 of this title.
g. Regulations.
(1) The Secretary of each Military Department shall prescribe regulations to carry out this section. Regulations under this subsection may not apply to subsection (g), other than to paragraph (3)(C) of that subsection.
(2) The Secretary may prescribe in the regulations under paragraph (1) the circumstances under which consideration by an SSB may be provided for under this section, including the following: (a) the circumstances under which consideration of a person's case by an SSB is contingent upon application by or for that person and (b) any time limits applicable to the filing of an application for such consideration.
(3) Regulations prescribed by the Secretary of a military department under this subsection may not take effect until approved by the Secretary of Defense.
h. Promotion Board Defined. In this section, the term "promotion board" means a selection board convened by the Secretary of a Military Department under section 573(a) or 611(a) of this title.
22. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.
a. Paragraph 7-2 states SSB's 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 Retired 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).
b. Paragraph 7-3 (Cases Not Considered) states 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.
c. Paragraph 7-5 (Convening SSB's) states SSB's will normally be convened within 120 days after a case is approved for consideration. Authority to approve cases for referral to this board is delegated to the Deputy Chief of Staff for Personnel, or his or her designee, or the DA Special Review Board. The same SSB may not consider an officer for the same grade under two successive boards' criteria.
d. Paragraph 7-6 (Membership) states unless otherwise required by Title 10, USC, section 612, membership for SSB's will consist of at least five officers in a higher grade than those being considered, with at least one officer from each competitive category to be considered by the board. No officer may be a member of two successive SSB's considering officers of the same competitive category and grade. Further, an officer who was a member of a regular selection board may not serve on an SSB that is reconsidering the recommendations of that regular board.
DISCUSSION AND CONCLUSIONS:
1. 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 are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case.
2. With respect to expediting his case, the ABCMR usually processes applications in the order they are received. The Board understands the circumstances that bring about applications to the ABCMR; many are urgent, and for all other kinds of applications, Soldiers who file the same kind of application are usually in similar circumstances and often have similar needs to have their applications processed quickly. The Board understands the effects that processing times can have on Soldiers and their families. However, it would not be appropriate for the Board to give preferential treatment to one Soldier over another, and disadvantage a Soldier or another by delaying one application to first process another that was filed later. Therefore, no matter how short or long the normal processing time, the Board normally processes applications in order based on when they were received.
3. With respect to the OER:
a. The contested OER is neither referred nor negative; on the contrary it is a very positive OER. Nevertheless, the applicant feels the omission of a potential rating by his rater (i.e. comments about promotion, schools, and assignments) contributed to his non-selection. Nearly 5 years after the through date, he appealed to the ASRB, but the ASRB denied his appeal. He still believes the evaluation was inaccurate and is not in compliance with the governing regulation.
b. His contention that the contested report serves as a "red flag" to the promotion board or that he was not selected for promotion based on the report is speculative at best and it does not invalidate the contested OER. There is insufficient evidence to show his non-selection for promotion was attributable to this particular OER. Promotion and command selection boards alike are not required to divulge the reason for a member's non-selection. The applicant could not possibly have known the contested OER led to his non-selection.
c. The applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. Although his rater did not specifically recommend future assignments, schooling, or promotion, the tenor of his comments when taken as a whole reflect a positive endorsement of the applicant as a future leader within the JAGC. Although he presented statements from individuals who had previously sat on DA promotion boards who indicated they would have interpreted the rater's comments as something less than stellar, it is speculative to presume the members of the promotion boards who reviewed his records did so. Given the highly-competitive nature of promotion to the rank of COL, the applicant has not shown the rater's comments on this particular OER were the deciding factor in his non-selection for promotion. Aside from his dissatisfaction and his disbelief that someone of his caliber was not selected for promotion despite his multiple ACOM ratings, the applicant did not provide clear and convincing evidence to justify removal of the contested OER or any portions of it. Therefore, there is no basis for removal of the contested OER or any portions of it.
d. The applicant also asked the Board to authorize the questioning of the members of his promotion boards to solicit their views on the weight or meaning they attached to the rater's comments in the contested OER. The applicant seeks to avoid the proscription against revealing the particulars of the promotion boards' deliberative process. The applicant's request runs contrary to that proscription.
4. With respect to correcting his ORB, the ORB is a summary document of information generally available at the unit/battalion/installation level. It is the officer's responsibility to review his or her ORB and official records before a promotion board and exercise due diligence by utilizing available administrative remedies, such as the battalion/brigade S-1 and/or the installation personnel service center, to correct administrative errors. It would be inappropriate for this Board to correct an ORB when the applicant has administrative remedies to correct the form.
5. With respect to promotion to COL, he focuses on four issues: the professional disagreement with regard to findings related to detainee deaths, co-equal membership between non-special branch and JAGC members, successive scoring by a JAGC GO as a member of two "promotion/selection" boards considering him for promotion to COL, and the Army's failure to comply with the Army G-1 SOP requiring that the five selectee comparison files for an SSB include selectees from in and above the zone in the FY07 SSB held in January 2008 and possibly in the FY05 SSB held in September 2006.
a. The applicant was considered for promotion to COL by the FY05 board, but he was not selected. It appears his file contained an unauthorized document. He was granted an SSB due to this error and he was subsequently considered by an SSB that also did not select him.
b. The applicant was also considered for promotion to COL by the FY06 and the FY07 boards and he was again not selected. During the FY07 board, his promotion file was scored by two promotion board members a second time in less than 1 year. Accordingly, he was granted an SSB that convened in January 2008 but did not select him for promotion.
c. A promotion board considers all officers eligible for promotion, but it may only select a number within established selection constraints. The Secretary of the Army establishes limits on the number of officers to be selected in his memorandum of instruction. The selection process is an extremely competitive process based on the "whole officer" concept. It is an unavoidable fact that some officers considered for promotion will not be selected. There are always more outstanding officers who are fully qualified to perform duty at the next higher grade who are not selected because of a mandated selection rate.
d. It is unfortunate the applicant was not selected for promotion to COL; however, it is a well-known fact that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations. Accordingly, promotion boards are tasked with choosing the best-qualified Soldiers to meet the needs of the Army at the time.
e. Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the board's recommendations are not known. A non-selected officer can only conclude that a PSB determined that his overall record, when compared with the records of contemporaries in the zones of consideration, did not reflect as high a potential as those selected for promotion.
f. His contention that the professional disagreement related to the detainee deaths with BG M____ E. D____ and MG D____ V. W____, who previously were XVIII Airborne Corps SJA's and later the presidents of one of his promotion boards, is speculative at best. There is no conclusive evidence that either GO singled him out due to this disagreement. The additional fact that CID investigated BG M____ E. D____'s spouse while the applicant was the CID SJA is also not shown to have created a bias against the applicant or to create the appearance of impropriety.
g. His contention that GO's discuss other officers during round-table meetings is noted and is logical. However, his assertion that these GO's make promotion decisions during such round-table meetings is speculative. The applicant asserts that selection for certain assignments is tantamount to later selection for promotion. Since the Army seeks to assign its most promising officers to the most challenging positions, it would be expected that the officers so assigned would likewise be the officers most often selected for promotion. That is not cause to presume there is a conspiracy to substitute the assignment process for the promotion system or somehow subvert the integrity of the promotion process.
h. Each of the regular and special boards that considered his promotion file met the legal and regulatory membership requirement by having the appropriate number of JAGC officers serving on each board. His dissatisfaction with the outcome of each board does not invalidate the membership of these boards.
i. With respect to the Accardi Doctrine [an agency must abide by its own regulations], the Army G-1 has oversight throughout a wider spectrum than that of the applicant. Given the small JAGC population and given the ongoing tactical, operational, and strategic situation throughout the world, the DMPM approved a change to the Army G-1 SOP that authorized an officer who served as a member of an SSB to serve as a member of the next regular promotion board considering an officer for promotion to the same grade and category. This action was coordinated with the appropriate officials, including OTJAG and OGC.
The agency did, in fact, abide by its own regulations.
j. With respect to the SSB membership requirements, he argues that the membership of a previously-granted SSB did not comply with the "co-equal" voting member requirement of the 2002 Army G-1 SOP. There is no legal or regulatory requirement for co-equal representation between non-special branch and special branch members on SSB's. In his case, each SSB met all applicable membership requirements.
k. With respect to file comparison, he argued that SSB comparison files should consist of a 50/50 mix of primary and above-the-zone files. By law, SSB's convened under section 628(b)(1) are provided a sampling of records of officers recommended for promotion and those officers who were not recommended for promotion. The Army G-1 SOP directs that an SSB will have a total of 10 comparison files; five recommended for promotion from in and above the zone and five comparison records not recommended for promotion. There is no legal objection to this policy and there is no legal requirement that SSB comparison files necessarily consist of both primary-zone and above-the-zone recommended files or that at least two of the recommended comparison files must necessarily be above-the-zone files.
6. After a comprehensive review of the applicant's contentions, arguments, and evidence submitted, the applicant failed to show he was improperly denied promotion. In view of the forgoing evidence, he is not entitled to the requested 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) AR20110011529
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RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110011529
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