IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110011564 


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 that he be granted promotion reconsideration by special selection boards (SSBs) to the rank of lieutenant colonel (LTC) under the criteria used by the board that failed to select him for promotion. 

2.  The applicant states, in effect, that he should be granted promotion reconsideration because his officer record brief (ORB) did not reflect three of his six degrees and because the promotion selection boards acted contrary to law and regulations when it failed to select Judge Advocate General’s Corps (JAGC) officers assigned to medical command (MEDCOM) assignments or officers with specialized legal training.

3.  The applicant provides a seven-page brief containing a list of enclosures with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a first lieutenant in the JAGC on 12 September 1994.  He continued to serve on active duty and was promoted to the rank of captain on 1 May 1995 and to the rank of major on 1 June 2002. 

2.  On 23 January 2009 he was notified that the Fiscal Year 2008 LTC JAGC Promotion Selection Board convened and failed to select him for promotion to the rank of LTC for the second time.  However, a selective continuation board (SELCON) selected him for continuation for a period of 3 years.  Additionally, he would continue to be considered for promotion while under SELCON.
3.  On 27 January 2009 the applicant accepted the offer of SELCON for a period of 3 years.  

4.  On 7 March 2010, the applicant submitted a request for SSB promotion consideration to the Human Resources Command (HRC) contending that the promotion board did not follow the provisions and guidance of Department of the Army Memorandum 600-2 and JAGC Publication 1-1.  Additionally, his ORB did not contain three of his degrees because it only allowed for entry of three degrees and he has six degrees.

5.  On 7 April 2010, HRC disapproved the applicant’s request for promotion consideration by an SSB.  The memorandum notifying the applicant of the disapproval informed the applicant, in effect, that there was no evidence of a material error in his records at the time the selection boards considered his records because his degrees were present in his records for the boards to review.  Additionally, he had the opportunity to submit letters to the board to bring attention to any matters he considered important for the board to know.  Therefore, his issue of material error did not meet the criteria for reconsideration. 

6.  In the processing of this case a staff advisory opinion was obtained from the Office of The Judge Advocate General Personnel, Plans & Training Office which opined, in effect, that there is no designated formal specialty for medical law specialist and the JAGC does not track promotion rates for JAG officers who have expertise in medical law.  Accordingly, no data exists to make comparisons. The advisory opinion also points out that the board memorandum of instruction (MOI) instructs the members to consider many factors in addition to specialization and that sustained superior performance in a variety of assignments is a guarantee of success.

7.  The advisory opinion was provided to the applicant for comment and his counsel responded to the effect that the advisory opinion diverts the Board’s attention from the relevant issues by citing Department of the Army Pamphlet 600-3 when the relevant reference is Department of the Army Memorandum  600-2 and Department of Defense Instruction (DODI) 1320-14.  He goes on to state that the memorandum specifically addresses the issue of medical law in regards to promotion consideration and the Army continues to tout the advantages of pursuing a degree in medical law as the applicant did.  He further states that while the opinion states that the JAGC does not track the promotion rates of medical law JAG officers, if they did they would find that the promotion rates are not in compliance with the law.  He continues by stating that promotion boards are told not to penalize JAG officers who are assigned to medical law positions; however, it is clear that despite these rules the promotion rates of medical law JAG officers reflect otherwise. 
8.  Army Regulation 600-8-29 (Officer Promotions) provides the policies and procedures for convening SSBs.  It provides, in pertinent part, that SSBs are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s non-selection by a promotion board and, had such errors been corrected at the time the individual was considered, a reasonable chance that the individual would have been recommended for promotion would have resulted.  Headquarters, Department of the Army will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials of the error and providing any relevant documentation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the promotion selection boards did not follow the applicable laws and regulations regarding JAGC officers working in a specialized area when it failed to select him for promotion has been noted and appears to lack merit.

2.  While it is indeed unfortunate that the applicant was not selected for promotion by the boards in question, it is a well known fact that promotion boards do not reveal the reasons for selection or non-selection of individuals for promotion.  It is also a well known fact that not all Soldiers who are considered for promotion are selected due to the limitations on numbers that can be promoted.  If such were not the case, promotion boards would not be necessary.  

3.  In any event, the applicant has failed to show through sufficient evidence submitted with his application and the evidence of record that the promotion selection boards were not properly conducted.  Although the boards are instructed not to penalize officers who have specialized, they are also instructed that they are to consider a number of factors, specialization being only one of them, in making their decision on promotion.  The applicant has, in effect, sought to raise legal specialization to a level of special consideration such as Congress and the President through legislation have given to joint assignments.  Absent such a clear mandate, it would be inappropriate for the Army or this Board to do so.

4.  The applicant’s contention that he should be granted an SSB because three of his degrees were not reflected on his ORB has been noted and found to lack merit.  His degrees were present in his OMPF for the boards to review and he had the option of writing to the President of the Promotion Selection Board to bring any matters he thought important for consideration to the attention of the board.  Accordingly, his contentions are not sufficient to warrant promotion consideration by an SSB.

5.  Therefore, in the absence of sufficient evidence to show that an error or injustice exist, there appears to be no basis to grant his request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X __  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X _____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20110011564





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ABCMR Record of Proceedings (cont)                                         AR20110011564



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