IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20120021051 


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, in effect, promotion to the rank of lieutenant colonel (LTC) or consideration by a special selection board (SSB) for promotion to the rank of LTC.

2.  The applicant states she was not selected for promotion to the rank of LTC in 2007 despite meeting the requirements and being best qualified.  She did not receive the notification of non-selection until December 2009 after she had retired in 2008.  She also states she would like the promotion to LTC because there was no valid reason for her not being promoted and she intends to transfer from the Retired Reserve in 2013 and serve as a Judge Advocate in the rank of LTC.  However, her non-selection for promotion may prejudice her ability to find a new unit or be promoted after her transfer from the Retired Reserve.

3.  The applicant provides copies of a printout of her board file, photograph, course completion certificate, service school academic evaluation report, and seven officer evaluation reports.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After prior enlisted service, the applicant was appointed as a U.S. Army Reserve second lieutenant (2LT) on 31 May 1988.  On 2 June 1988, she accepted an appointment as a 2LT in the New York Army National Guard (ARNG).

3.  On 26 September 1995, she was promoted to the rank of captain in the Judge Advocate General Corps.  She was promoted to the rank of major on 28 June 2001.  She continued to serve in the New York ARNG until 5 October 2002 when she transferred to the New Jersey ARNG.

4.  On 1 December 2005, she was issued her Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  The applicant was considered but not selected by the Calendar Year 2007 Reserve Component LTC Judge Advocate Promotion Selection Board.

6.  On 1 March 2008, the applicant was voluntarily transferred to the Retired Reserve in the rank of major.

7.  In the processing of this application a staff advisory opinion was obtained from the U.S. Army Human Resources Command which opines that the applicant's contention that there was no valid reason she was not recommended for promotion to the next higher grade despite meeting the requirements for promotion and being best qualified is without merit.  HRC states that the exact reasons for her non-selection are unknown because statutory requirements prevent disclosure of board proceedings to anyone outside the promotion board in question.  Accordingly, it must be concluded that the applicant's overall record, when compared to the records of her contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.  Officials at HRC also reviewed the applicant's official records and opined that the probable reason for her non-selection was the ratings she received in several of her officer evaluation reports.

8.  The advisory opinion was provided to the applicant for comment and the applicant responded with a two-page rebuttal to the effect that her promotion package did not include her completion of intermediate-level education, dated 22 August 2006, despite the fact that she submitted it.  She believes she deserves reconsideration for promotion to LTC because her overall performance indeed warranted her promotion.  She submits copies of her course completions, board file summary, and email in support of her rebuttal.

9.  A review of her official records shows that her course completions are properly filed in the performance section of her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

10.  Army Regulation 600-8-29 (Officer Promotions) provides that officers who discover material error existed in their file at the time they were non-selected for promotion may request reconsideration by an SSB.  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 in the Officer Record Brief (ORB) or AMHRR.  It is the officer's responsibility to review his or her ORB and AMHRR before the board convenes and to notify the board in writing of possible administrative deficiencies in them.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should receive reconsideration for promotion and be promoted to the rank of LTC because she was best qualified and because the board failed to see her complete record of performance and accomplishments has been noted and appears to lack merit.

2.  The ABCMR does not have the luxury of reviewing all of the records of the individuals who were reviewed by the promotion board in question in order to determine who was best qualified and, likewise, neither does the applicant.

3.  While the applicant contends that the selection board did not review her course completion certificates, her official records contained the documents in question and as such they were available for review by the selection board.  Accordingly, she has failed to provide sufficient evidence and argument to warrant promotion reconsideration.

4.  It is a well-known fact that not everyone considered for promotion will be selected.  If such were the case, there would be no need for selection boards.  It is also a well-known fact that statutory requirements prevent the disclosure of board proceedings to anyone not a member of the board.  While it is unfortunate that the applicant was not selected by that board, there does not appear to be any material error in her record at the time that would justify consideration by an SSB.

5.  Accordingly, there appears to be no basis to grant her request for promotion to the rank of LTC or consideration for promotion by an SSB.

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)                                         AR20120021051



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ABCMR Record of Proceedings (cont)                                         AR20120021051



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