IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110019458 


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 his date of rank (DOR) for captain be corrected.  In effect, he is requesting promotion reconsideration by a Special Selection Board (SSB) using the Fiscal Year 2007 (FY07) Captain Army Competitive Category Promotion Selection Board criteria. 

2.  The applicant states, in effect, that at the time of the FY07 captain promotion board, his promotion records did not contain his most recent officer evaluation reports (OERs).  His OERs for 8 July 2005 to 7 July 2006 and 8 July 2006 to 7 July 2007 were not received at Headquarters, Department of the Army (HQDA) until 10 July 2007.  He made every attempt to get his rating chain to complete his OERs and submit them in a timely fashion, but deployments hindered this effort.

3.  After his record was brought up to date, he was selected for promotion to captain by the FY08 Captain Army Competitive Category Promotion Selection Board, and he was promoted with a DOR of 31 January 2008.  Had he been promoted by the FY07 board, his DOR would have been 1 November 2007.  His contemporaries are now being considered for below-the-zone (BZ) promotion to major, but he is not because of his DOR as a captain.

4.  The applicant provides:

* self-authored statements
* extracts from the Interactive Web Response System
* Military Personnel (Milper) Message #06-209, dated 26 July 2006
* Milper Message 11-232, dated 28 July 2011
* his Officer Record Brief
* OERs covering the periods 27 January 2005 through 8 July 2005, 8 July 2005 through 7 July 2006, 
* email, dated 22 September 2011
* Order Number 050-078, U.S. Army Human Resource Command, Alexandria, VA, dated 19 February 2008
* Memorandum for Record, dated 30 August 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant accepted an appointment as a Reserve commissioned officer of the United States Army on 6 August 2004.  He was promoted to first lieutenant on 17 March 2006 and to captain on 31 January 2008.  He served in various capacities as a military police officer.

3.  The applicant's OER for the period 27 January 2005 to 8 July 2005 shows his rater rated him as "Unsatisfactory Performance, Do Not Promote" and he received a "Do Not Promote" rating from his senior rater.

4.  The applicant's OER for the period 8 July 2005 to 7 July 2006 shows his rater rated him as "Outstanding Performance, Must Promote" and his senior rated him as "Best Qualified."  This OER was received at HQDA on 10 July 2007.

5.  The FY07 captain promotion board convened on 24 October 2006.  

6.  During the processing of this case, on 1 November 2011, an advisory opinion was obtained from the Chief, Officer Promotions, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official stated the applicant's DOR of 31 January 2008 makes him ineligible for BZ promotion consideration to major under the fiscal year (FY) 2012 criteria.  BZ promotions are intended to provide officers of exceptional ability an opportunity to advance quickly to more responsible positions, help retain high quality officers and give them an incentive to perform at their highest potential.  BZ DOR categories are not an entitlement based on year groups, but based on DORs established by the Secretary of the Army and the Army Deputy Chief of Staff (G1).  There are only a limited number of officers selected within the number established by the Secretary of the Army in the Memorandum of Instruction, who have the qualities and potential to warrant early promotions.  Officers selected from BZ must be truly outstanding and clearly superior to those who would otherwise be selected from in or above the promotion zone.

7.  The advisory further stated that in accordance with Army Regulation  600-8-29 (Officer Promotions), paragraph 7-3d, cases not considered or reconsidered for promotion by a Special Selection Board (SSB) include officers who would be considered from below the promotion zone.  In addition, the reason for the applicant's FY07 non-selection is unknown because board deliberations are not a matter of record.  In view of the information presented, a request for reconsideration of promotion by a SSB is disapproved.

8.  On 3 November 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion advisory boards//SSBs will be convened on an “as needed” basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant went before the FY07 captain board in October 2006.  The promotion board did not have his 8 July 2005 to 7 July 2006 OER, as it was not received at HQDA until 10 July 2007.

2.  The applicant was at a disadvantage when he went before the FY07 captain's board by not having complete records.  Notwithstanding the advisory opinion which only addresses BZ for majors, the applicant should have reconsideration of promotion by an SSB based on complete records.

3.  The applicant's OER file contained a "do not promote" OER and nothing to counter it.  He was not selected for promotion.  However, in July 2007, HQDA received two OERs, including the 8 July 2005 to 7 July 2006 OER, which praised the applicant's performance.  He was selected for promotion by the FY08 captain board which met in October 2007.

4.  Had his OER file been up to date in October 2006, he might have been promoted to captain with a DOR of 1 November 2007.  Therefore, it would be equitable to submit the applicant’s records to a duly constituted SSB for consideration to promotion to captain under the FY07 criteria.

5.  If the applicant is selected for promotion to captain by the SSB, his records should be further corrected by promoting him to captain and assigning the appropriate date of rank.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

		a.  Submitting his record to a duly-constituted SSB for promotion reconsideration to captain based on the 2007-year criteria.

		b.  If he is selected for promotion and he meets all other promotion criteria, correcting his records to show he met all the eligibility criteria for promotion effective the date of release of the applicable promotion selection board, promoting him to captain with the appropriate date of rank, and paying him any associated back pay and allowances as a result of the corrections.

2.  If the applicant is not selected by a duly-constituted SSB, he should be so notified.


3.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his promotion to captain with a DOR of 1 November 2007.  





      _______ _   _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)                                         AR20110019458



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ABCMR Record of Proceedings (cont)                                         AR20110019458



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