IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20120001877 


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:

* removal of one DA Form 67-9 (Officer Evaluation Report (OER)) for the period 12 June 2006 through 20 January 2007 from his official military personnel file (OMPF)
* promotion reconsideration for lieutenant colonel (LTC) by a special selection board (SSB)

2.  The applicant states:

	a.  He is requesting reconsideration for promotion to LTC based on the promotion board having viewed his file with two OER's for the same rating period. 
He is also requesting removal of the incorrect OER and reconsideration by an SSB under the 2011-year criteria.  The U.S. Army Human Resources Command (HRC) Special Actions Branch denied his request for reconsideration.  He was not selected for promotion to LTC by the August 2011 Judge Advocate General (JAG) Promotion Board.  He immediately requested and received a copy of his file on 20 December 2011.  After reviewing his promotion consideration file, he found two OER's for the same rating period (20060612-20070120).

	b.  He is providing a copy of the OER with both changes that should appear before the SSB.  The OER has been corrected to show his correct date of rank (DOR) and the Officer Development block is marked "Yes."  Army Regulation 600-8-29 (Officer Promotions), chapter 7, authorizes reconsideration for non-selected officers whose records contain an error when they were considered by a promotion selection board.

	c.  He has exhausted all of his options for appeal to correct his OMPF and now appeals to the Army Review Board to correct the error in his file and correct any injustice that has been caused to his military career.

	d.  He is including email correspondence that shows he informed HRC Evaluation Appeals Branch of the discrepancy after being notified of his non-selection.  That office stated it was correcting the discrepancy and he needed to certify his board files before the deadline with assurance from that office that it would correct his file.

3.  He provides:

* his OER for the period 12 June 2006 through 20 January 2007
* email between HRC Evaluations Appeals Branch and himself, dated 
3 and 5 August 2011
* email from HRC Special Actions Branch, dated 17 January 2012
* his promotion board file

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was commissioned in the Regular Army as a second lieutenant on 28 June 1993.  He was promoted to captain on 1 June 1997 and to major on 1 April 2004.

2.  A recent review of his OMPF located on the integrated Personnel Electronic Records Management System (iPERMS) failed to reveal two copies of the contested OER for the same period.  His OMPF contains one complete-the-record OER for the period 12 June 2006 through 20 January 2007 which shows in:

* Part I (Administrative Data) – his DOR as 1 April 2004
* Part IV (Performance Evaluation-Professionalism (Rater)) – his rater checked the block "Yes" for Officer Development indicating developmental tasks were recorded on a DA Form 67-9-1a (Officer Evaluation Report Support Form) and quarterly follow-up counselings were conducted

3.  In email correspondence, dated 1 August 2011, an HRC staff member advised him that she had deleted one of the OER's.

4.  On 17 January 2012, the HRC Special Actions Branch advised him that:
	a.  Promotion reconsideration is authorized under Title 10, U.S. Code, and is approved only for non-selected officers whose records contained a material error as being of such a nature that, in the judgment of the reviewing official (or body), had it been corrected at the time the individual was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the individual would have been selected for promotion.

	b.  He had been considered and not selected for promotion by the 2011 JAG Promotion Board.  A review of his board file (which he certified) affirmed that he had two OER's that appeared in his official board file for the same rating period (20060512-20070120).  However, that material error did not qualify for reconsideration based on the provisions of Title 10, U.S. Code, and Department of Defense Instruction 13201.1, which states under Title 10, U.S. Code, sections 628(b) or 14502(b), an SSB shall not consider any person who may, by maintaining reasonably careful records, could have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion.

	c.  Therefore, his request for reconsideration for promotion by an SSB was denied.

5.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of active duty officers.  Paragraph 7-3 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 Officer Record Brief (ORB) or OMPF.  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.

6.  Army Regulation 600-8-29, paragraph 7-11, states officers who discover that a material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  To determine if there is an error in the promotion file, the officer may request a copy of his/her file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records contained a material error at the time of his non-selection by the 2011 JAG Promotion Board.  He was advised by HRC Special Actions Branch that a review of his board file, which he certified, confirmed it contained two OER's for the same period.  However, this material error did not qualify for reconsideration.  Prior to submitting his request to HRC for reconsideration, he was advised that one of the OER's had been deleted.  A current review of his OMPF located on iPERMS shows only one OER for the period 20060612-20070120.

2.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  The difference in the two OER's was not so significant as to cause one to be an invalid report and/or to cause his non-selection for promotion for the mere presence of two OER's for the same period.  Further, it appears he did not review his file until after the promotion board adjourned.

3.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20120001877



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ABCMR Record of Proceedings (cont)                                         AR20120001877



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