IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110020505 


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 his file be referred to a Special Selection Board (SSB).  He also requests a formal hearing.

2.  The applicant defers to counsel to provide a statement, make arguments, and to make submissions.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant's promotion board file should be corrected and submitted to an SSB.

2.  Counsel states the Army Human Recourses Command unfairly denied the applicant's request for reconsideration and he is requesting that the Army Board for Correction of Military Records (ABCMR) assistance in amending the errors and injustice in the applicant's case. 

3.  Counsel states there are three errors in the applicant's record that prevented him from being favorably considered by the 2010 Fiscal Year (FY10) Army Medical Department (AMEDD) Lieutenant Colonel (LTC) Promotion Board.  The errors are:

	a.  the applicant was incorrectly advised to utilize certification option three, which constitutes a "not certified" notation creating an illusion the applicant did not care enough to review his file;

	b.  his 2006-2007 Officer Evaluation Report (OER) did not contain the senior rater's profile overlay.  The 2006-2007 OER was replaced with an unsigned OER containing the overlay; but it stated the applicant was "unavailable for signature." This action was taken without the knowledge or permission of the applicant; and

	c.  the transcript of his training at the Uniformed Services University of Health Sciences did not state he graduated in 2001.

4.  Counsel provides copies of:

* a summary of the AMEDD FY10 LTC Promotion List statistics, AMEDD FY10 Board Membership List, and board instructions with a listing of personnel under promotion consideration (Tab 1)
* the applicant's promotion reconsideration and denial (Tab 2)
* a printout of "My Board File" options page (Tab 3)
* five pages of e-mail to and from the applicant (Tab 4)
* the contested OER (Tabs 5 and 6)
* four pages of transcripts (Tabs 7 and 8)
* Officer Record Brief with Curriculum Vitae (Tabs 9 and 10)
* Nine OER's (Tabs 11 - 17)
* two statements of support (Tab 18)

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a cadet on 30 August 1989 and commissioned a Medical Service Corps (MS) second lieutenant (2LT) in the U.S. Army Reserve (USAR) on 9 May 1992.

2.  He was promoted to first lieutenant effective 7 September 1994, captain 1 December 1996, and major 1 May 2004.

3.  The record contains eight OER's as a major, covering the period 17 March 2004 through 19 December 2009 that would have been available to the FY10 Promotion Board.  They all show his rater annotated the entry "Outstanding Performance - Must Promote" and his senior rater rated his promotion potential as "Best Qualified."  The senior rater profiles show he was rated at center of mass with the exception of the following three periods he was rated above center of mass:

* 22 June 2002 through 16 March 2003
* 14 April 2007 through 15 December 2007
* 16 December 2008 through 15 December 2009

4.  A review status for the FY10, MS, LTC Board is marked in the third space "I have reviewed the information in "My Board File" and I will take action and submit the following correction/changes to my file."  The correction/change noted was addition of training certificates. 

5.  It appears he was considered by the FY10 AMEDD Promotion Selection Board for LTC but he was not selected.  The record does not contain any evidence indicating why the applicant was nonselected for promotion.

6.  On 14 July 2010, the applicant requested promotion reconsideration.  He cited as the bases for his request was:

* he selected the "My Board File" option three based on advice he received in e-mail from the Army Human Resources Command
* when he reviewed/printed his OER ending on 13 April 2007 on 18 April 2009 prior to the FY10 LTC Board it was different from the one that he reviewed/printed on 1 December 2009 

7.  On 10 August 2010, the applicant was notified that his request for reconsideration was denied.  He was also advised that the documents he provided did not warrant reconsideration.  The OER in question was rejected and duplicated twice; however, the content and rating remained the same and the issue of the signature was required only to insure that the administrative data in part 1 was correct.  He was advised that the signature did not reflect concurrence or non-concurrence with the evaluation report.

8.  Counsel provided two copies (at Tabs 5 and 6) of the alleged improper OER covering the period 28 May 2006 through 13 April 2007.  Both copies provided as well as the copy in the applicant's Official Military Personnel File show his rater rated his performance as "Outstanding Performance - Must Promote" and his senior rater rated his promotion potential as "Best Qualified."  Both forms show he was rated at center of mass on the senior rater profile.  The only difference in the forms are the copy printed on 8 July 2010 has a more complete senior rater profile and includes the statement "Officer not available for signature."

9.  The letters from his current commander and a retired major general strongly support the applicant's request for promotion reconsideration.  They state the applicant is an outstanding officer with complete and thorough knowledge of medical logistics.  He is an ideal Soldier and model officer.  He displays Army values and maintains the highest integrity in his professional and personal life.  He should be promoted immediately to ensure he remains in the Army.


10.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states an SSB may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army 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 list and who have since been placed on the active duty list (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).

11.  Promotion Board members are briefed and cautioned that some Office Record Briefs may contain incorrect information or incomplete data and that they must base their evaluations on the information contained in each officer's file that is furnished to the promotion selection board.  In addition, all officers in the zone of consideration are afforded an opportunity to submit correspondence to the President of the Board of possible administrative deficiencies in their records or to bring special attention to any matter they consider important to their consideration.  Failure to do so does not constitute material unfairness or material error. 

12.  Army Regulation 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2–2 states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in 10 USC 1034 and DODD 7050.6) or request additional evidence or opinions.  Paragraph 2-9 states that 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.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  Formal hearings are granted only when the Board determines that a case is so complex, or the records are so incomplete that only sworn testimony can provide the information required.  

2.  Counsel's contention that the applicant's use of certification option three indicated to the promotion board that he did not care enough to certify his file is without merit.  The applicant properly utilized this option to indicate not only had he reviewed his file but that there was an omission in his records that he would correct.  He was properly advised that this was the correct entry for him to use.

3.  The first copy of the OER in question was printed prior to the Headquarters Department of Army review and inclusion of the senior rater profile.  Except for the inclusion of the senior rater profile and the non-availability statement the two versions of the OER do not differ in any way and both show he was rated at center of mass.  Counsel's contention that this OER was not prepared in accordance with the law is without merit.  

4.  Although the applicant's OERs show a solid performance and although his current battalion and brigade commanders recommend his records be considered by an SSB he is not entitled to an SSB because he does not meet the criteria for an SSB; therefore, 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 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)                                         AR20110020505



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ABCMR Record of Proceedings (cont)                                         AR20110020505



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