IN THE CASE OF:	  

		BOARD DATE:	  14 September 2011

		DOCKET NUMBER:  AR20110012847


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).


CONSIDERATION OF ADDITIONAL EVIDENCE:

23.  On 21 June 2011, new information was received from the applicant in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100015139, dated 23 November 2010.

24.  The information submitted consists of a detailed review of the Record of Proceedings (ROP) for ABCMR Docket Number AR20100015139 in which the applicant states the ROP is "…replete with error and misrepresentation or distortion of the facts…" which "…show a lack of thoroughness and detail that would impact on final deliberations by any convening body."

25.  The applicant lists the following inconsistencies, errors, inaccuracies, and misrepresentations of fact in the CONSIDERATION OF EVIDENCE (COE) portion of the ROP:

	a.  paragraph 4 states, "On 25 January 1972, he entered active duty as an MP Regular Army (RA) officer" when, in fact, he entered on active duty on 12 October 1969.

	b.  paragraphs 7-9 discuss his DA Form 67-8 (Officer Evaluation Report (OER)) as a Product Manager for Physical Security Equipment (PM-PSE) during the period 19870527-19880526 without addressing his contention he was not rated by the correct senior rater, or the fact his senior rater never discussed his performance.

* Army Regulation 70-1 (Army Acquisition Policy) established his rating chain

	c.  paragraphs 7-9 present a misleading chronology of events concerning his receipt of an adverse "draft" senior rater comment (DA Form 67-8, Part VII) for his OER and his resignation as PM-PSE, suggesting he resigned after receiving the "draft" OER.

	d.  paragraph 9 states, "…a copy of this letter [response to "draft" senior rater comments] is not filed on his official records."

	e.  paragraph 19 states, "He ultimately requested voluntary retirement…."

	f.  paragraph 20 lists the documents he submitted in support of his application without demonstrating the "relevancy" he ascribes to each document.

* the applicant identified 11 specific documents as evidence on his
DD Form 149 (Application for Correction of Military Records), and "other documents described and submitted in the attached"
* since only 11 documents were specifically identified on his
DD Form 149, these documents are presumed to have been more relevant than those not specifically listed

26.  The applicant's record reveals the following as pertains to the above COE statements:

	a.  concerning his entry on active duty:

* he first entered active duty as a U.S. Army Reserve (USAR) first lieutenant on 12 October 1969
* while on active duty as a USAR officer, he competed for and he was awarded an RA appointment on 25 January 1972

	b.  concerning his rating chain/senior rater during his PM-PSE OER:

* he was rated by the Department of the Army (DA) Program Executive Officer (PEO) for Troop Support, Troop Support Command (TROSCOM), and senior rated by the Military Deputy to the Assistant Secretary of the Army (ASA) for Research, Development and Acquisition (RDA)
* there is no copy of a rating chain in the applicant's record
* the record is silent as to the method of evaluation used by the senior rater
	c.  concerning the sequence of events surrounding his PM-PSE OER:

* he assumed his duties as PM-PSE on 27 May 1987
* he developed reservations concerning the direction of the Basic Facility Intrusion Detection System (BFIDS) program
* on 24 June 1988, by memorandum, he advised his rater, the PEO for Troop Support, that he could not support him in his direction to field BFIDS and that he was resigning as PM-PSE
* on 19 July 1988, his senior rater provided him with proposed senior rater comments which he [senior rater] felt might be construed as adverse because it rated him in block 3 for potential and stated:

[Applicant] is providing the leadership to keep cost, schedule and performance under control and in balance.  He is providing the proper technical knowledge and his actions reflect the potential to accomplish the mission at the COL [colonel] level.  He has requested he be relieved of his responsibilities as a program manager which will limit his future when his ability to take the heat is considered.

* on 8 August 1988, the applicant provided a response to his senior rater which caused the rating to be changed by placing him in block 2 for potential and removing mention of his resignation

	d.  concerning the assertion the applicant's 8 August 1988 response to his senior rater was not contained in his personnel file:

* the document is contained in the applicant's interactive Personnel Electronic Records Management System (iPERMS) restricted files

	e.  concerning the assertion the applicant voluntarily retired:

* his personnel record shows he was identified for involuntary retirement by a Selective Early Retirement Board (SERB)

	f.  concerning the method in which the applicant's supporting/evidentiary documents were listed:

* the ROP listed 26 documents provided by the applicant as evidence, including all 11 of the applicant's specifically identified documents [these were listed in paragraph 3 of the APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE portion of the ROP]
* the ROP did not identify the 11 specific documents as such; however, with the exception of the 17 November 1991 CNN Special Assignment article, each was referenced a second time in the COE portion

27.  The applicant lists the following objections to statements made in the DISCUSSION AND CONCLUSIONS (D&C) portion of the ROP:

   a.  In paragraph 1, he alleges the ROP incorrectly characterizes his request as being one of promotion in that "The applicant contends he should be promoted to COL [colonel]." when in reality, he is requesting "…a determination of injustice…."

	b.  In paragraph 4, the ROP incorrectly characterizes his basic premise, that is, his classified work did not permit an accurate recounting of his duty performance which, in turn, caused his non-selection to colonel, as "speculative."

28.  The applicant's record reveals:

	a.  On 4 October 1991, the applicant submitted a DD Form 149 to the ABCMR.  In block 8, he requested "…that I be retroactively promoted to Colonel." He argued the 1990 Army Competitive Category (ACC) Colonel Promotion Board did not have access to material information concerning his duty performance when he was non-selected for promotion to colonel.  This Board denied his request for retroactive promotion to colonel on 24 June 1992.

	b.  On 17 May 2010, the applicant requested a de novo review of his 24 June 1992 case citing new evidence.

	c.  He was considered for promotion to colonel by the 1990, 1991, 1992, and 1993 ACC Colonel Promotion Boards, but he was not selected.  Furthermore, he was granted promotion reconsideration by a Special Selection Board (SSB) using the 1990 criteria, and was, once again, denied.

29.  Army Regulation 623-105 (Officer Evaluation Reporting System), then in effect, established and governed rating chains and provided they correspond as nearly as practical to the chain of command and supervision within an organization, regardless of component.

   a.  Rating chains are drawn up by name, given effective dates, published, and distributed to each rated officer and each member of the chain.  Any changes to rating chains will also be published and distributed.  No changes may be retroactive.

   b.  The senior rater will use all reasonable means to become familiar with the rated officer's performance.  When practical, the following means should be used:  personal contact; records and reports; the rater's and intermediate rater's evaluations of the rated officer; and the information given by the rated officer and the rater and intermediate rater on DA Form 67-8-1 (OER Support Form).

30.  The centralized officer promotion selection system is governed by procedures based on statute (Title 10, U.S. Code), Army Regulation (currently Army Regulation 600-8-29, Officer Promotions; formerly Army Regulation
635-100) and policy established by The Secretary of the Army and the Deputy Chief of Staff for Personnel.  The selection system is closely monitored and managed because of the far-reaching effects that the selection process has on the mission of the Army, and the professional development, morale and well-being of the officer corps.

	a.  The basic concept of the promotion selection system is to select for promotion those officers who have demonstrated that they possess the professional and moral qualifications, integrity, physical fitness, and ability required to successfully perform the duties expected of an officer in the next higher grade.  Promotion is not intended to be a reward for long, honorable service in the present grade, but is based on overall demonstrated performance and potential abilities.

	b.  Congressional and budgetary constraints dictate the number which may be selected for promotion to each grade.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction to the board, establishes limits on the number of officers to be selected.  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 for promotion.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

	c.  Promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, thus specific reasons for a board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.


ADDITIONAL DISCUSSION AND CONCLUSIONS:

7.  At the time of the decision of the ABCMR in Docket Number AR20100015139, dated 23 November 2010, it was the intent of the ABCMR to make the applicant’s record as administratively correct as it should properly have been at the time.

8.  The applicant's contention the ABCMR's Docket Number AR20100015139 Record of Proceedings contained errors, or misstated certain facts in the COE portion has merit.

	a.  The applicant entered on active duty as a USAR officer on 12 October 1969.  With no break in his active duty service, he became an RA officer on 25 January 1972.  This error is insignificant and had no effect on the Board's determination in his case.

	b.  The applicant contends Army Regulation 70-1 controlled his rating chain.  Army Regulation 623-105 at the time governed rating chains and senior rater requirements.  As PM-PSE, his work fell under the direct supervision of the TROSCOM PEO for Troop Support who was his rater.  He was senior rated by the Military Deputy to the ASA (RDA), who was the Army Acquisition Executive.  This was an acceptable rating chain for a PM-PSE.  The applicant has not shown otherwise.  He has provided organization charts showing structures and relationships relative to the Army's acquisition process in the late 1980's, but he does not provide a copy of his published rating chain.  As for the senior rater's evaluation of his performance, it is acceptable for a high ranking senior rater to evaluate an officer based only on records and reports, and the rater's advice with only limited personal interaction.

	c.  The applicant elected to walk away from his PM-PSE assignment because he could not work with his rater in fielding BFIDS.  Following this highly unusual decision, his senior rater drafted a potentially adverse OER which he referred to the applicant prior to finalizing it.  Although the ROP cited accurate dates for each event, the way the events were sequenced may have led a casual observer to conclude the applicant resigned after receiving the draft OER comments from his senior rater.  This sequencing error is insignificant and had no effect on the Board's determination in his case.

	d.  The ROP erroneously stated that the applicant's reclama of the senior rater's draft OER comments, which was provided by the applicant and submitted to the Board, was not previously contained in the record.  The document was/is in the record; however, this error is insignificant and had no effect on the Board's determination in his case.

	e.  The ROP erroneously stated the applicant voluntarily retired.  The applicant was involuntarily SERB'd; however, this error is insignificant and had no effect on the Board's determination in his case.

	f.  The applicant's contention that the ROP did not ascribe the proper relevance to his documentary evidence is without merit.  Board analysts are only required to list evidence submitted by an applicant, which was appropriately done.

9.  The applicant's objection to statements made in the D&C portion of the ROP are without merit.

	a.  He alleges the ROP incorrectly characterizes his request as being one of promotion in that "The applicant contends he should be promoted to COL [colonel]." when in reality, he is requesting "…a determination of injustice…."  The applicant requested a de novo review of his 1992 case in which he asked to be "…retroactively promoted to Colonel."  ABCMR Docket Number AR20100015139 correctly reflects his request.

	b.  The applicant objects to the ROP labeling his rationale for his non-selection for colonel as "speculative."  Promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, thus specific reasons for a board's recommendations are not known.  A non-selected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.  Therefore, any other conclusion would be speculative.

10.  The following administrative corrections are required:

	a.  in COE paragraph 4, change as follows, "On 12 October 1969, he entered active duty as a U.S. Army Reserve (USAR) MP officer.  On 25 January 1972, he was appointed as a Regular Army (RA) officer.  He subsequently served in various staff and leadership positions, within and/or outside the continental United States, and he was promoted to lieutenant colonel (LTC) on 1 October 1985."

	b.  in COE paragraph 8, change as follows, "On 24 June 1988, by memorandum, the applicant advised his rater that he was resigning as PM-PSE.  This act generated an OER for the period 27 May 1987 through 26 May 1988.  He submitted the back page of a draft of that OER and a letter, dated 19 July 


1988, wherein his senior rater, a Lieutenant General (LTG) and Military Deputy to the Assistant Secretary of the Army (Research, Development, and Acquisition), stated that the OER was referred to the applicant because in his (the LTG's) estimation, it contained a senior rater potential evaluation and comments that may have an adverse effect on his career."

	c.  in COE paragraph 9, change as follows, "This draft OER shows his senior rater rated him as third from top.  He also submitted a letter response to the senior rater on 8 August 1988 wherein he disagreed with him and reaffirmed his position with respect to the BFIDS.  His response apparently worked because the draft OER is not filed on his official records."

	d.  in COE paragraph 19, change as follows, "He ultimately was involuntarily retired on 30 June 1994 and placed on the retired list in his retired rank of LTC on 1 July 1994.  He was credited with 25 years, 7 months, and 10 days of creditable active service."

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

2.  The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the Army Board for Correction of Military Records set forth in ABCMR Docket Number AR20100015139, dated 23 November 2010, by deleting the respective COE paragraphs and replacing them with the following:

* 4.  On 12 October 1969, he entered active duty as a U.S. Army Reserve (USAR) MP officer.  On 25 January 1972, he was appointed as a Regular Army (RA) officer.  He subsequently served in various staff and leadership positions, within and/or outside the continental United States, and he was promoted to lieutenant colonel (LTC) on 1 October 1985.


* 8.  On 24 June 1988, by memorandum, the applicant advised his rater that he was resigning as PM-PSE.  This act generated an OER for the period 27 May 1987 through 26 May 1988.  He submitted the back page of a draft of that OER and a letter, dated 19 July 1988, wherein his senior rater, a Lieutenant General (LTG) and Military Deputy to the Assistant Secretary of the Army (Research, Development, and Acquisition), stated that the OER was referred to the applicant because in his (the LTG's) estimation, it contained a senior rater potential evaluation and comments that may have an adverse effect on his career.

* 9.  This draft OER shows his senior rater rated him as third from top.  He also submitted a letter response to the senior rater on 8 August 1988 wherein he disagreed with him and reaffirmed his position with respect to the BFIDS.  His response apparently worked because the draft OER is not filed on his official records.

* 19.  He ultimately was involuntarily retired on 30 June 1994 and placed on the retired list in his retired rank of LTC on 1 July 1994.  He was credited with 25 years, 7 months, and 10 days of creditable active service.

3.  The above corrections do not alter the Board's original BOARD DETERMINATION AND RECOMMENDATION portion of ABCMR Docket Number AR20100015139, dated 23 November 2010.



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

ABCMR Record of Proceedings (cont)                                         AR20110012847



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Supplemental Record of Proceedings (cont)                 AR20110012847



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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