IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130001453 


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 an earlier request for consideration for promotion to lieutenant colonel (LTC)/pay grade O-5 by a special selection board (SSB).

2.  The applicant states Docket Number AR20110009870 explains the error and injustice surrounding his non-selection for promotion.

3.  In his legal brief and sworn statement, dated 10 December 2012, he states:

	a.  in accordance with Army Regulation 623-3 (Evaluation Reporting System), chapter 3, paragraph 3-60, the absence of a complete-the-record Officer Evaluation Report (OER) is not the basis to request standby consideration unless the absence is due to administrative error or delay in processing at Headquarters, Department of the Army (HQDA).  In this case, the U.S. Army Human Resources Command (HRC) admitted they committed an administrative error and they caused a delay in processing his OER.

	b.  the Army Board for Correction of Military Records’ (ABCMR) decision appears to rely on Army Regulation 600-8-29 (Officer Promotions), chapter 
7, paragraph 7-3(a), for denying his request for standby reconsideration.  However, this reliance is incomplete and therefore misplaced.  It is incomplete because paragraph 7-3(a) addresses administrative errors, but it does not discuss nor address those circumstances as stated in Army Regulation 623-3, chapter 3, paragraph 3-60 concerning delays in processing at HQDA.  It is significant to note from the plain reading of the regulatory language that the use of the word "or" in the regulation is disjunctive.  That means there are independent bases for requesting standby consideration.  Those two independent bases are: (1) when there is an administrative error; and (2) where there is a delay in processing at HQDA.     	

	c.  Army Regulation 600-8-29, chapter 7, paragraph 7-3(a) is not dispositive not only because it does not address the admitted delay in processing at HQDA, but also because the totality of the evidence is insufficient to establish a lack of due diligence. 

	d.  these regulations do not provide a definition for the term due diligence.  Therefore, it is appropriate to refer to other legal authority and the dictionary to define the term.  The legal definition for due diligence is "such diligence as a reasonable person under the same circumstances would use: use of reasonable, but not necessarily exhaustive efforts."    

	e.  the promotion board regulations do not require strict compliance.  The Supreme Court of the State of Washington requires strict compliance with time limits in a case arising out of Chapter 41.56 RCW.  Requiring strict compliance is typically associated with time limits that are jurisdictional.  In fact, Army Regulation 600-8-29, chapter 7-11, states that officers who discover the error may request reconsideration.  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.  Therefore, it appears the due diligence standard is equivalent to a reasonable care standard.

	f.  it appears the ABCMR in its decision erroneously applied a strict compliance requirement to a situation that does not involve jurisdictional time limits.  The ABCMR decision not only commits error of law by applying a strict compliance requirement for discovering and correcting the error by HRC in not placing the OER before the promotion board, but also fails to consider that it was the agency that created the problem, not him.   

	g.  the courts are far less inclined to find a lack of due diligence where the agency contributed to the delay.  Where the only cause of untimeliness is inadvertent error or lack of due diligence, and there is no erroneous agency advice or substantial compliance, waiver is not justified.  The ABCMR decision does not appear to take into the consideration all of his efforts to ensure the OER was properly placed before the promotion board.  These efforts are recognized under laws in all jurisdictions under the concept of substantial compliance.  He understands the ABCMR did not have the benefit of this sworn statement with enclosures at the time it issued its original decision.

	h.  in the case before the ABCMR, there is admitted agency error, substantial compliance on his part, and no prejudice to the agency by granting him his promotion.

	i.  he cites several court decisions in his legal brief and sworn statement. 

	j.  the preponderance of the facts in this case establishes that he substantially complied with the rule and exercised due diligence to get his OER before the promotion board.  He submitted his OER support form in January 2010.  His raters were not able to complete their ratings and sign the OER until 25/26 March 2010.  He received the OER on 29 March 2010 and signed it that same day.  He then made sure the OER was completed and submitted to HRC that same day.  He continued to check his board file.  He checked again with the Administrative Support Specialist who assured him that if there were any problems she would have been notified by HRC.  She explained this has been her practice with HRC for hundreds of OERs she has submitted to HRC throughout all the years she has served as the Administrative Support Specialist for numerous Staff Judge Advocates at Joint Base Lewis-McChord.  This assurance was very comforting.  However, he continued to check his board file.

	k.  he had no reason to believe his OER was missing and not going to be included in his promotion board file.  To conclude under these circumstances that he failed to exercise due diligence to get his OER in his promotion board file is inconsistent with the evidence and contrary to reasonable application of the standards set forth above.  It's certainly not supported by any legal authority.

4.  He further states:

	a.  another equitable factor that should be considered by the ABCMR is the fact he completed and submitted his OER support form in January, but was unable to get his rater’s comments until the end of March.  He aggressively yet professionally within the bounds of respect tried to get the OER completed much sooner.  There were circumstances beyond his control to include the unavailability of his raters due to other responsibilities that took them out of the state.  This left him with a shortened time frame to get the OER before the promotion board.  He was advised that it could take up to 
5 working days for the OER to appear on his on-line Official Military Personnel File (OMPF) (currently referred to as his Army Military Human Resource Record (AMHRR)) and another 48 hours for AMHRR documents to transfer to his My Board File (MBF) and his ability to check his MBF ends 3 working days prior to the convene date.  However, he did not have reasonable cause to believe HRC was committing an error by wrongfully withholding his OER from the promotion board file.
	b.  the Board's discussion states his attorney contends he could not review his records because the period for review was very close to the convening date of the promotion board.  While that is true his attorney made this contention it is not accurate.

	c.  as the Board points out, he did not discover the OER was not in his AMHRR until August 2010.  For clarification, in August 2010 he wasn't looking for his missing OER, but instead a different document.  It came as a complete surprise when he inadvertently noticed that his most recent OER was not in the file.  Again, this was a surprise because prior to this he was never informed why he was not promoted nor did he believe there was anything wrong and was confident the OER made it into his promotion board file.  However, the Board is completely inaccurate in stating he did not review his promotion board file until August 2010.

	d.  the evidence shows the OER was sent to HRC on 29 March 2010.  Since it could take up to 5 days to appear in his AMHRR it was reasonable for him to believe his OER may not appear in the file until 3 April 2010.  Further, since he was advised it may take another 48 hours for the OER to appear in his MBF it was reasonable for him to believe the OER may not reach his MBF until 5 April 2010.  The notice from HRC told him his ability to view the MBF will close 
3 working days before the convene date.  Since the Board convene date was 
13 April 2010 it was reasonable for him to believe his ability to review the MBF would end on 7 April 2010.  From the time his OER was submitted to HRC he frequently reviewed his MBF until his ability to do so ended.  It was because of his frequent checks and seeing the OER was not yet in the file that caused him to check with the Administrative Support Specialist and his Program Management Officer.  Again, he was assured there were no problems with his OER and to be patient.  For the ABCMR to maintain that he failed to exercise due diligence under these circumstances appears to apply an unreasonable standard that borderlines on establishing a strict compliance standard.       	          

	e.  the ABCMR decision notes he received notice that HRC had rejected the OER because it had the wrong through date.  This is accurate, but the notice was well after he discovered the missing OER in August 2010.  In an apparent skip in logic the decision speculates "it appears" he failed to ensure the OER was prepared with the correct through date.  This assumption is incorrect and inconsistent with the evidence.  The promotion board guidance states the appropriate through date must be through 2 January 2010.  The through date for his OER is correctly noted as 2 January 2010.  There was no error on his part.  It was HRC that admitted it made an error in not processing his OER.  There is absolutely no evidence there is a problem with the OER.  In fact, this OER is the same one that is currently recognized as error free in his AMHRR.
	f.  in order for his OER to be considered eligible for consideration by the Board it had to be received error free in the Evaluation Reports Branch, HRC, not later than close of business 2 April 2010.  Even though the through date for his OER was correctly identified as 2 January 2010, HRC admitted making the mistake by not forwarding it into his board file.  Also, contrary to established practice, HRC did not inform the Administrative Support Specialist that there was a problem with the OER.  This collection of errors and omissions by HRC wrongfully caused the OER to not be included in his promotion board file.  To continue to suggest despite all this evidence that it was his fault because he failed to exercise due diligence creates an almost impossible and wholly unreasonable standard.

	g.  in its decision, the ABCMR specifically noted its concern that the evidence contained an incomplete email string, dated 18 August 2010.  The decision carefully points out that the email message string does not show her (the Career Manager and Plans Officer) reply to him or his initial message to her.  Further, the decision notes its concern that this email string fails to identify the OER in question and that it is not specifically identified at any point in the email message string.  He completely understands the concern with the omission of specificity in this email string.  For clarification, the applicant in this email is him and it involves the OER that was missing from his promotion board file and is the subject of this appeal.  As new evidence, in addition to his sworn statement, he is attaching the complete email string for the Board's edification.        	

	h.  the admitted error cost him a promotion and the opportunity to continue serving on active duty.  As a result of the error, his mandatory retirement date was reduced to May 2011.  He was no longer allowed to mobilize or drill.  Because he was not allowed to drill he has been informed by his current commander that he will be receiving a less than complimentary OER.  The error by HRC has essentially destroyed his military career.  The error has essentially evolved into an injustice.    

5.  The applicant provides:

* Emails, dated 17 August 2010 to 23 November 2010
* Letter, dated 23 September 2010, from the Administrative Support Specialist
* Several court decisions
* Definition of due diligence




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 ABCMR in Docket Number AR20110009870, on 13 December 2011.

2.  He provides email traffic which states HRC admitted an error in processing his OER and recommended he request an SSB. 

3.  His arguments are new evidence that will be considered by the Board. 

4.  Having prior active enlisted service, he enlisted in the Reserve Officers' Training Corps on 5 September 1985.  He was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant effective 9 May 1987.  He was promoted to the rank of first lieutenant and subsequently awarded military occupational specialty 55A (Judge Advocate General).  He was promoted to major on 7 September 2002.

5.  He was ordered to active duty in support of Operation Enduring Freedom (Continental United States Based Support) for a period of 1 year on 1 June 2009.  

6.  An HRC, St. Louis, MO, memorandum, dated 11 August 2009, notified the applicant that a DA SSB examined the performance portion of his AMHRR under the 2007 criteria, but he was not selected by the board.  He was advised that this constituted his first non-selection and he still had a basis for further consideration by a DA SSB under the 2008 criteria.

7.  An HRC, St. Louis, MO, memorandum, dated 16 November 2009, notified the applicant that a DA SSB examined the performance portion of his AMHRR under the 2008 criteria, but he was not selected by the board.  He was advised that, in the absence of new evidence showing that an error or injustice exists, further consideration by SSB is not possible.

8.  A DA Form 67-9 (OER) complete-the-record report for the period 1 April 2009 through 2 January 2010 shows the applicant was rated in the principal duty of Soldiers' Counsel while assigned to Detachment 5, 3rd Legal Services Organization, with duty with the Office of the Staff Judge Advocate, Fort Lewis, Washington.

	a.  Part II (Authentication), item a and item c, show the rater (Supervisory Attorney) and senior rater (Staff Judge Advocate) electronically signed the OER on 25 March and 26 March 2010, respectively.
	b.  Part II, item e, shows the applicant electronically signed the OER on 29 March 2010.

	c.  Part VII (Senior Rater), item b (Potential Compared with Officers Senior Rated in Same Grade – Overprinted by DA), shows the senior rater's profile was printed on the OER by HQDA with a date of 29 March 2010.

	d.  The OER is filed in the performance folder of his AMHRR in the interactive Personnel Electronic Records System (iPERMS).

9.  He was subsequently ordered to active duty in support of a National Emergency for a period of 342 days on 1 June 2010.

10.  Soldier Readiness Center, Joint Base Lewis-McChord, Washington, Orders 126-0004, dated 6 May 2011, released the applicant from active duty effective 8 May 2011 and transferred him to the 3rd Judge Advocate Detachment, Legal Services Organization, Detachment 5, Boston, Massachusetts.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty in the rank of MAJ based on completion of required active service on 8 May 2011 and transferred to his USAR unit.  He completed 1 year, 11 months, and 8 days of active service.

12.  On 4 November 2010, the Chief, Special Actions Branch, DA Promotions, denied the applicant's request for promotion consideration by a DA SSB because complete-the-record reports are optional.

13.  He received his notification of eligibility for retired pay at age 60 (20-year letter) on 14 February 2013.

14.  On 15 March 2013, he was assigned to the Retired Reserve.

15.  Army Regulation 623-3, chapter 3, governs evaluation principles.  The regulation states reports received at HQDA after the required amount of time or past a suspense date set for a selection board is not an automatic basis for appealing either the report or selection board results.  HQDA will process any valid report so as not to do disservice to the rated Soldier with an excessive amount of nonrated time.  Complete-the-record reports not received in a timely manner to HQDA will not be processed and will be returned.  The absence of a complete-the-record report from the AMHRR at the time of the board's review will not be the basis to request standby reconsideration, unless the absence is due to administrative error or delay in processing at HQDA.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and appear to have merit.

2.  He provides an email from HRC indicating that the OER was received on time but, through HRC error, it was not placed in his promotion package.

3.  Based on the language in the governing regulation, the absence of the Complete-the-Record OER is a basis to request standby consideration because HRC was at fault and admitted such.  

4.  It would be equitable to correct his records by forwarding his records to an SSB for consideration for promotion to LTC under the applicable criteria, but only as recommended below.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110009870, dated 13 December 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Submitting his records to an SSB for consideration for promotion to LTC under the applicable criteria.

	b.  If before the SSB process is completed he is removed from the RASL:

(1)  Correct his records by continuing the SSB process;

      (2)  if selected for promotion by the SSB, further correct his records by voiding his removal from the RASL, showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting him in due course in accordance with Army Regulation 135-155 to LTC with the appropriate date of rank, and paying to him any associated back pay and allowances.

	c.  If not selected for promotion, notifying him accordingly.




      __________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)                                         AR20130001453





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ABCMR Record of Proceedings (cont)                                         AR20130001453



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