IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120007618 


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 reconsideration of her previous request for promotion consideration to captain (CPT) by a special selection board (SSB).

2.  The applicant states:

	a.  She was a first lieutenant (1LT) in the Alaska Army National Guard (AKARNG).  Following her second non-selection for promotion to CPT, she made application to the Army Board for Correction of Military Records (ABCMR) seeking review by an SSB.  Before the ABCMR acted on her request, she left Alaska and went to Oregon.  The Board obtained an advisory opinion from the National Guard Bureau (NGB) and mailed her a copy at her Alaska address.

	b.  She never received the advisory opinion in time to provide comments before the ABCMR considered her request.  She adds it was not her intent to miss the deadline for submitting comments or requesting an extension.  She updated her mailing address and sent multiple emails to the Army Review Boards Agency Case Tracking System (ACTS) requesting status updates.

	c.  She also left a forwarding address with the caretaker of her home in Alaska.  On 22 March 2012, she was notified of a package which was delivered to her Alaska address from the ABCMR.  She did not receive the ABCMR letter, dated 2 February 2012, notifying her she had until 27 March 2012 to respond.



	d.  She was passed over for promotion in November 2009 and it was very important to her to have everything in order for the 2010 board.  On 12 December 2009, she completed her degree from Eastern Oregon University and the documentation proving this was obtained on 16 February 2010.  This was before the November 2010 promotion board; therefore, educationally qualifying her for promotion.

	e.  She requested, received, and reviewed her board file from the U.S. Army Human Resources Command (HRC) and agrees that documents were missing from her file for the 2009 board, but she submitted the supporting documentation consisting of a missing Officer Evaluation Report (OER), Bronze Star Medal, and degree completion to the board.

	f.  Her heart's desire is to become a CPT in the ARNG and for the ABCMR to adopt the advisory opinion recommendation in whole based on the facts and circumstances in her case.

3.  The applicant provides:

* self-authored statements
* ABCMR letter, dated 1 February 2012
* HRC advisory opinion, dated 31 January 2012
* online change of address printout
* 2 emails
* memorandum from AKARNG Assistant Adjutant General, dated 4 August 2011
* bachelor's degree diploma
* 2 transcripts
* Adjutant General Captain's Career Course diploma
* DA Form 1059 (Service School Academic Evaluation Report), dated 24 March 2011
* 2 DA Forms 67-9 (Officer Evaluation Report (OER)) for the periods ending 12 April 2010 and 12 April 2011.
* DA Form 488-5 (Bronze Star Medal Certificate) 
* Certificate of Appreciation 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110011053, on 8 March 2012.

2.  The applicant provides new arguments, a copy of her diploma from Eastern Oregon University, her certificate for the completion of the Adjutant General Captains Career Course, a certificate of appreciation, and a transcript from Webster University which were not previously reviewed by the Board.  Therefore, they are considered as new evidence and warrant consideration by the Board.

3.  Having had prior enlisted service in the U.S. Air Force and Oregon ARNG (ORARNG), the applicant was appointed a second lieutenant, Military Police Corps, ORARNG and executed the oath of office on 3 April 2004.  On 19 October 2005, she was reassigned to the AKARNG and promoted to the rank of 1LT on 3 April 2006.

4.  She served on active duty in an Active Guard Reserve status with the AKARNG from 19 October 2005 to 30 September 2011.

5.  Her records contain six OERs covering rating periods from 2005 through 2010.  This includes a relief for cause OER for the period 3 July to 30 July 2007 in which she was relieved from her duties as an MP Platoon Leader due to being arrested for driving under the influence.  Her OER for the period 13 April 2010 through 12 April 2011 is still not on file in her official military personnel file (OMPF).

6.  On 30 September 2011, she was honorably discharged from the AKARNG and as a Reserve of the Army in the rank of 1LT.  Item 10a (Total Service for Retired Pay) of her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows 17 years, 10 months, and 19 days.

7.  On 31 January 2012, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official recommended partial approval of the applicant's request and opined, in pertinent part, that:

	a.  The applicant was considered by the Fiscal Year (FY) 2010, 1LT - CPT DA promotion board on 3 November 2009.  She was non-selected for promotion due to "not being educationally qualified."  On 12 December 2009, she received a bachelor's degree which allowed her to achieve education qualification for promotion to CPT.  She was considered a second time for promotion by the FY11 1LT-CPT DA board on 2 November 2010 and was non-selected for promotion and no reason was given.  As a result, she was separated from the AKARNG on 30 September 2011.

	b.  The applicant stated an OER, college diploma, and military awards were missing from her OMPF which resulted in her being a two-time non-select.  She claims the necessary documents were visible on "My Board File" at the time of the DA board but a second review after the board convened revealed the documents were no longer on file in interactive Personnel Electronic Records Management System (iPERMS).  In accordance with Army Regulation 600-8-29 (Officer Promotions), paragraphs 7-11(a) and (e), "Officers who discover that 
material error existed at the time they were non-selected for promotion may request reconsideration"…To determine if there is an error in the promotion file, the officer may request a copy of his or her file as considered by the promotion selection board from the Commander, Army Human Resources Command (HRC)."

	c.  After she was not selected for promotion by the FY11 DA board, the applicant inquired about the appeal process and the AKARNG advised her there was no basis for requesting an SSB as she did not exercise reasonable diligence by ensuring all necessary documentation was in her OMPF prior to the selection board.

	d.  The advisory official recommended, based on the evidence provided and the timeline of documentation submission, the applicant be allowed to request reconsideration of an SSB in accordance with regulatory guidance.  It was recommended she request a copy of her board file through HRC.  If she discovers her board file was missing documentation, which can be shown to have been submitted prior to the board, a request can be made to HRC to convene an SSB.  The State of Alaska concurred with the recommendation.

8.  On 1 February 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; however, she did not respond within the specified time limits.  

9.  On 28 March 2012, the applicant provided a response to the advisory opinion and attributed her delay to her change of address. 

10.  The applicant provides self-authored statements, change of address information, a letter from the AKARNG Element, Joint Forces Headquarters Assistant Adjutant General expressing her qualification, a copy of her Bachelor of Science diploma, two transcripts, a copy of her Adjutant General Captain's Career Course Certificate, DA Form 1059, a Bronze Star Certificate awarded for exceptionally meritorious service during Operation Iraqi Freedom from 11 November 2007 through 11 April 2008, and a Certificate of Appreciation for outstanding performance in Vigilant Guard 2010.



11.  The applicant also provides:

* an OER covering the period 13 April 2009 through 12 April 2010 for her duties as a management analyst with the AKARNG in which she received a "Satisfactory Performance, Promote" and "Fully Qualified" rating
* an OER covering the period 13 April 2010 through 12 April 2011 for her duties as a management analyst with the AKARNG in which she received an "Outstanding Performance, Must Promote" and "Fully Qualified" rating

12.  The applicant's iPERMS file shows the following:

* transcripts were added on 14 October 2010 and 17 June 2011
* a DA Form 1059 was added on 6 June 2011
* her DA Form 67-9 ending 12 April 2010 was added on 2 May 2011 
* her Adjutant General Captain's Career Course Certificate was added on 6 June 2011

13.  The available records do not contain a printout of the "My Board File" and the applicant does not provide a copy of this file which shows the documents in question prior to the convening of her promotion board.

14.  The applicant's change of address was received by the ABCMR on 2 April 2012, when she requested reconsideration of her previously-denied application, Docket Number AR2011001053.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  This regulation specifies that promotion reconsideration by an SSB may be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.  Further, all officers not qualified for retention will be removed from an active status within a specified period after the selection board submits its results to Headquarters, Department of the Army.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of her previously-denied request for consideration for promotion to CPT by an SSB was carefully considered.

2.  In the applicant's case, she was nonselected for promotion in 2009 because she was not educationally qualified.  In 2010, she was nonselected, but no reason was given.  

3.  During her second promotion review and nonselection no reason was provided.  This indicates her educational records were up-to-date, but for reasons known only to the board, she was not selected.  However, with the relief for cause OER in her file, there was not a reasonable chance that she would have been recommended for promotion even if there had been an otherwise material error in her files.

4.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard and of commissioned and warrant officers of the U.S. Army Reserve.  The NGB advisory opinion erroneously cited Army Regulation 600-8-29; however, the basic premise is the same.

5.  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, 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.

6.  Promotion selection boards, by law, are not authorized to divulge the reasons for selection or nonselection of any officer with the exception for situations with obvious discriminators (e.g., failure to meet educational requirements).  Thus a nonselected 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.

7.  In view of the above, there is no basis to recommend granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20110011053, dated 8 March 2012.




      _______ _   __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)                                         AR20120007618



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007618



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1