BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120013208 


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 for promotion to colonel.

2.  The applicant states he should be reconsidered for promotion to colonel due to errors committed by the 2011, U.S. Army Reserve (USAR), Judge Advocate General's Corp (JA) colonel selection process.  He states:  

	a.  The board was not properly constituted because Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) specifies that not more than one officer from the same Army Reserve Command, Regional Support Command, or general officer command may serve on the same selection board.  Yet, the board president senior rated two of the other board members.  The fact that 70 percent of the lieutenant colonels (LTCs) selected were from the board president's command proves the board selection process was not fair and equitable, especially when some of those selected had inferior qualifications.  

	b.  The constitution of the selection board gives the perception of preferential treatment.  Army Regulation 135-155 states that, "board members will not engage in or give the appearance of preferential treatment to any individual or group of officers under consideration.

		(1)  The board president senior rated all Legal Support Organization (LSO) officers and they comprised 70 percent of those selected.  Some of them had inferior qualifications.
		(2)  The much higher selection rate for officers from the 150th LSO and Office of the Judge Advocate General (OTJAG) demonstrates even greater preferential treatment.  The proportion, 70 percent, of those who were selected came from the board president's chain of command, thereby clearly showing preferential treatment.  Even if the board president did not vote, his presence would have influenced the outcome. 

		(3)  The geographic location of the board members in the Washington, DC area or in an LSO community resulted in 80 percent of the selectees being from those areas.

	3.  The statistics on selectees prepared by OTJAG demonstrate glaring statistical trends:

		a.  45 percent have not graduated or enrolled in War College courses.

		b.  45 percent had no deployment, mobilization or temporary tours of active duty.  Of those who had such experience, 60 percent of them did so as majors or below.

		c.  65 percent had not held a Staff Judge Advocate, Command Judge Advocate or Brigade Judge Advocate position.  "(Such positions are the legal community's closest equivalent to a command position.)" 

	4.  He possesses objective positive discriminators that exceed those of some of the selectees.  This demonstrates that the board did not follow the Memorandum of Instruction (MOI).  He could have submitted additional evidence to show how he was better qualified if the OTJAG and/or U.S. Army Human Resources Command (HRC) had been more responsive to his Freedom of Information Act (FOIA) requests.

	5.  He is constrained in the analysis of the shortcomings of those selected as compared to his own superior qualifications by this failure to respond to his FOIA requests.  Nevertheless, he lays out the following particulars.  He maintains that the MOI would have instructed the selection board to more favorably consider those officers who were enrolled or had completed a senior service college and those who were on or had completed a combat deployment.  Other colonel selection boards consider these factors as positive discriminators.

		a.  He graduated from the Army War College and has a Master of Strategic Studies degree.  He also has a Master of Laws from Washington University in St. Louis, MO.
		b  He served a year-long deployment in Iraq as a Command Staff Judge Advocate.

	6.  The failure of OTJAG and HRC to respond to his FOIA requests has unfairly hampered his case.  He had hoped to show that the MOI favored LSO officers; specifically, an MOI that would show the number of above center of mass (ACOM) senior ratings by a general officer benefits those LSO officers.

		a.  This advantage arises because the board president senior rated all the LSO officers.  These officers have an advantage over embedded officers who are not rated by their commanding general.

		b.  If an embedded officer was senior rated by their commanding general then they would have been competing for an ACOM rating with other LTCs in leadership positions such as battalion commanders.

		c.  Additionally, LTCs in LSOs have an additional advantage because, until recently, LSOs were allowed to double and triple slot positions.  This allows the senior rater of officers in an LSO a chance to assign two or three times as many ACOMs as do the senior raters of non-LSO officers.

		d  Unfairness also arises by equating a mobilization or a temporary tour of active duty with a combat zone deployment.  Such a determination makes light of the sacrifices made by all Soldiers who serve in a combat zone.  The war in Iraq and Afghanistan has gone on for long enough that any JA who wished to deploy could have done so.  When he deployed in 2005-2006, he was the only JA in the brigade, although there were four empty LTC JA slots.  None came forward for deployment.  To equate stateside mobilization or temporary duty with combat deployment and reward those officers with promotion is a disservice to the applicant, ”and all the other embedded JAs who deployed in support of our Nation."  

	7.  He further states:

		a. He has, "already noted that I possess the following objective discriminators:" (1) he is a War College graduate; (2) he deployed to Iraq as an LTC and was awarded a Bronze Star Medal; (3) he had two assignments as a Command JA; and (4) he has an advanced law degree.  He believes that comparing these factors to the 20 officers selected for promotion would place him in the top 25 percent of those educationally-qualified individuals who were selected.

		b.  He concludes the board members utilized some subjective factors that provided preferential treatment to those who were selected.

		c.  He provides his own analysis to demonstrate an appearance of preferential treatment by showing that, given an overall selection rate of only 
12 percent, the selection of one officer from OTJAG would indicate (statistically) that 12 of the 172 officers considered worked for OTJAG.   

		d.  His inability to get information under FOIA necessitates his use of the information in the FY2011 USAR Non-AGR, JA, Colonel Promotion Board results (PP&TO Brief) slide presentation to prove his point.

8.  He concludes, "promotion boards must be scrupulously fair.  I assert that sufficient evidence has demonstrated that the 2011 USAR Non-AGR Judge Advocate Colonel Board did not fulfill this basic standard.  I have demonstrated procedural error in the establishment/composition of the Board and, at least the appearance of, preferential treatment of members of the members' commands and locales.  As required, I have also provided evidence which shows how these errors resulted in selection of officers whose files contained inferior qualifications than mine."

9.  The applicant submits the following documents to substantiate his request:

	a.  Enclosure 1 – a copy of Title 10, U.S. Code (10 USC) Section (§) 
628-Special Selection Boards;

	b.  Enclosure 2 – Board Members by name, rank and command and 
The LC (Legal Command) Times, Volume 1, Issue 1, dated March 2010;

	c.  Enclosure 3 – Officers Selected by the 2011 Board by name, command, and state;

	d.  Enclosure 4 –  an Officer Evaluation Report (OER) of an individual JA officer;

	e.  Enclosure 5 – FY2011 USAR Non-AGR, JA, Colonel Promotion Board results (PP&TO Brief);

	f.  Enclosure 6 – email exchange with HRC concerning FOIA requests.  The applicant requested information on individual selectees and their backgrounds relative to senior service college, deployment, unit and location of assignment.  His request was denied as it was considered to be personal and therefore not subject to FOIA provisions; and
	Enclosure 7 – an email exchange with OTJAG wherein the applicant requested and was provided the names and locations of the selection board members.  He then requested the name, current assignment, and location of above the zone selectees, whether they had been deployed and whether they had attended a senior service college.  He then asked for a copy of the selection criteria. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, a JA LTC with a date of rank of 31 August 2001, was non-selected for promotion to colonel in 2005 and annually thereafter, including by the FY2011 USAR Non-AGR, JA, Colonel Promotion Board, hereafter referred as the subject board.

2.  The PP&TO Brief that the applicant submitted indicates that the primary zone of consideration for the subject board was LTCs whose dates of rank are between 1 April 2006 and 31 March 2007.  Considered officers in that group had an 18 percent probability of being selected.  The brief does not list any probability of selection for officers whose date of rank was earlier than 1 April 2004.

3.  One of the documents submitted by the applicant is Enclosure 4 – the OER of an individual JA officer.  While the intent in this submission was, apparently, to show that the board president senior rated all LSO LTCs, it also shows that the individual's date of rank is 23 April 2004.  He was not among the selectees.

4.  The PP&TO Brief shows that of 127 above the zone, educationally-qualified candidates for promotion 11 (9 percent) were selected. 

5.  During the processing of this case an advisory opinion was obtained from  HRC.  The Chief, Department of the Army Promotions, Special Actions noted that, "Unless unusual circumstances exist, a board member should not be in the current rating chain of another board member.  However, a board member may be the current rating chain of another board if such appointment is necessary to meet the grade and competitive category compensation requirements…"  He recommended the applicant's request be denied.

6.  The advisory opinion was forwarded to the applicant for his consideration and possible rebuttal.  He responded, in effect, that:

	a.  The advisory opinion did not provide any facts to rebut that the board was improperly constituted, that this impropriety resulted in 70 percent of the selectees being from the board president’s command, and that many of those had inferior qualifications.  There was an appearance of impropriety.
	b.  HRC's failure to provide the facts made it impossible for him to rebut the advisory opinion.  He submitted an FOIA request, but HRC did not respond.  He contends that HRC did not respond to the FOIA request because the information would have proven his contentions to be sound.

	c.  He also requested a copy of the MOI, but HRC did not provide it.  He contends that the Board requires the MOI in order to determine if the applicant is correct.  He lays out the information and arguments that HRC could have offered to prove his contentions invalid, such as showing that those selected had better objective qualifications than he did.

	d.  HRC did not address his contention that the selection results created the appearance of preferential treatment.

	e.  His request contained all the factual information that he could obtain.  HRC denied his FOIA request and responded to the Board's request by a simple denial.  HRC did not deny the accuracy of any of the facts that he presented.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant compares his record to that of the selectees, but in doing so he makes unsubstantiated assumptions.  For example:

	a.  he provides no evidence that anyone (but himself) believes that having deployed to a war zone necessarily improves the potential of an individual JA officer;

	b.  by comparing the selection rate for officers serving on the HRC staff, OTJAG, or the LSOs with the overall selection rate he seems to assume that those individuals were randomly assigned rather than specifically chosen for those important positions, having been selected based on their records.
2.  The applicant repeatedly criticizes the composition of the selection board but he offered no evidence that, given the circumstances, that composition was unjustified.  

3.  The PP&TO Brief shows that of the 127 above the zone, educationally qualified candidates only 11 (9 percent) were selected.  He needed to show that, despite repeated previous non-selections, he deserved to be found equal to the top 9 percent.

4.  The applicant has submitted neither sufficient probative evidence nor a convincing argument in support of the 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 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)                                         AR20120013208





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ABCMR Record of Proceedings (cont)                                         AR20120013208



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