IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120002366 


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:

The applicant's requests, statements, and supporting documents are provided through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's record be corrected by:

	a.  adding the applicant's Bachelor of Science in Nursing; DA Form 1059 (Service School Academic Evaluation Report), dated 22 March 2010; and official photograph to her Official Military Personnel File (OMPF); and

	b.  placing her corrected record before a Special Selection Board (SSB) for promotion consideration to captain under the criteria of the 2010 and 2011 Reserve Component Selection Board (RCSB).

2.  Counsel states the applicant was appointed a first lieutenant (1LT) in the U.S. Army Reserve (USAR) Army Nurse Corps (ANC) on 26 November 2008, and she received entry level grade credit that resulted in her 1LT date of rank (DOR) being established as 26 May 2007.  Counsel claims the applicant was not assigned to her USAR unit until 7 May 2009, and she was not selected to attend the Army Medical Department (AMEDD) Officer Basic Course (OBC) until February 2010.  Prior to attending OBC, the applicant was considered for promotion to CPT by the fiscal year 2010 (FY 2010) promotion board and she 


was not selected for promotion.  She was again considered for promotion to CPT by the FY 2011 promotion board, and again she was not selected.

3.  Counsel claims the applicant's OMPF that was presented to the FY 2010 and FY 2011 CPT promotion boards contained material errors because it did not include her nursing degree and/or her DA Form 1059 confirming her completion of the AMEDD OBC.  He further claims the applicant's OMPF also did not include her official photograph.  He further states she did not receive an Officer Evaluation Report (OER) until 2011.  Counsel claims it can be presumed the reason she was not selected was the absence of her nursing degree.  Counsel claims that due to the combination of material errors in her record, she should be reconsidered for promotion to CPT by an SSB under the criteria of both the
FY 2010 and FY 2011 promotion boards after all the record errors are corrected and the missing documents are added to her OMPF.

4.  Counsel provides a five-page supplemental statement and the 10 documents identified therein as enclosures in support of her request.

CONSIDERATION OF EVIDENCE:

1.  With 4 years of prior enlisted service in the U.S. Navy, she was appointed a 1LT in the ANC of the USAR on 26 November 2008.  The appointment memorandum confirms the applicant was granted 3 years of constructive service credit and assigned a 1LT DOR of 26 May 2007.

2.  Orders C-02-903747, issued by the U.S Army Human Resources Command (AHRC), St. Louis, MO, dated 25 February 2009, assigned the applicant to the 234th Medical Corps (MC) Hospital, Fort Sam Houston, TX effective
26 November 2008.

3.  Orders 09-066-00003, issued by Headquarters, U.S. Army Reserve Command (USARC), Fort McPherson, GA, dated 7 March 2009, attached the applicant to the AMEDD Professional Management Command, effective
26 November 2008.

4.  A memorandum issued by Headquarters, 63rd Regional Support Command (RSC), Mountain View, CA, subject:  Notification of Non-Selection for Promotion (1st Time), dated 21 April 2011, notified the applicant that she was considered, but unfortunately, was not among those selected for promotion by the board.  It also advised the applicant that as an eligible officer she would receive two opportunities for promotion.  It further indicated if she remained eligible, she would be considered for promotion the following year.  The specific reason for non-selection was not identified.
5.  A review of the applicant's OMPF on the interactive Personnel Electronic Records Management System (iPERMS) shows the following documents were added to her OMPF on the dates indicated:

	a.  OBC DA Form 1059, 29 March 2010;

	b.  OER (18 July 2011), 26 October 2011;

	c.  Official Photograph, 2 August 2011; and

	d.  BS Degree Diploma, 3 November 2011.

6.  Orders 11-326-00018, issued by Headquarters, USARC, dated 22 November 2011, discharged the applicant from the USAR effective 21 December 2011.  These orders indicate the applicant is a two-time non-selection for promotion to captain.

7.  During the processing of this case, on 10 July 2012, an advisory opinion was obtained from the AHRC Chief, Department of the Army (DA) Promotions, Special Actions.  This advisory official recommended denial of the applicant's request.  He stated that based on the existing Department of Defense (DOD) policy an SSB will not consider any person who could, by maintaining reasonably careful records, have discovered and taken steps to correct this error or omission which the original board based its decision against promotion.  The advisory official further stated all officers are afforded the opportunity to view and correct any deficiencies in their OMPF on a continuous basis.  Additionally, any officer being considered for promotion has the option to submit correspondence to the President of the board to address any issues he or she feels is important during consideration.  Failure to do so does not constitute material unfairness or a material error.

8.  The advisory official further indicates an additional review of the applicant's record affirmed that she elected not to view her 2010 board file, nor did she provide any proof of diligence taken on her part to update her FY 2011 board file until several months after the results of her 2nd non-selection and notice of separation was released.  The advisory official further states that in order for their office to consider the applicant's request at a later date, she must address the issue of why she elected not to view her files and/or provide proof of the actions she took to update her files prior to the convening date of the FY 2010 and
FY 2011 CPT AMEDD non-AGR ANC promotion selection boards.


9.  On 11 July 2012, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

10.  Military Personnel (MILPER) Messages announcing RCSB’s contain the criteria for promotion consideration and administrative instructions regarding records review and documentation requirements.  The instructions inform officers that Army policy requires officers to review their promotion files and to provide any missing documents and that failure to comply with these instructions could demonstrate a "lack of due diligence."

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers (WO) other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned WOs) of the ARNG of the United States (ARNGUS) and of commissioned and WOs of the USAR:

	a.  Paragraph 3-4 (Notice of Consideration) provides guidance on establishing zones of consideration and notification to officers.  It states in pertinent part that officers will be directed to review their records and submit copies of missing documents or other corrections to the AHRC promotions office and to ensure an official photograph is included in the promotion file; and 

	b.  Section III (Promotion Consideration Boards), paragraph 3-19 (General) provides that officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error, may be reconsidered for promotion by an SSB or promotion advisory board, as appropriate, if there is a material error or omission in the officer's record.  It further stipulates that the Commander, AHRC, Office of Promotions (RC) will normally not determine that a material error existed if an administrative error was immaterial, or if the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and supporting documents, as presented through counsel, have been carefully considered.  However, there is insufficient evidence to support the requested relief.

2.  The evidence of record shows the applicant was twice non-selected for promotion to CPT and she was separated as a result.  Although all the facts and circumstances surrounding the accuracy of her OMPF is not available in the record or provided by the applicant and her counsel, what is clear is that she received the zone of consideration announcement messages that contained the instructions regarding the review and update of her records being placed before the promotion boards in question.
3.  Further, although her BS diploma was not in the OMPF, her DA Form 2 or Officer Record Brief confirming her level of civilian and military education would have been provided to the promotion boards in question.  Absent any evidence indicating the applicant exercised due diligence in the review of her promotion board record, the regulatory criteria necessary to support reconsideration by a SSB has not been satisfied in this case.
4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120002366



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ABCMR Record of Proceedings (cont)                                         AR20120002366



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