BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130002017 


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:

   a.  for promotion to colonel (COL) based on the COL Judge Advocate General’s Corps (JAGC) Promotion Selection Board (PSB) Fiscal Year 2005 (FY05), FY 2006 (FY06), FY 2007 (FY07), FY 2008 (FY08), or FY 2009 (FY09) criteria.

	b.  to remove the rater's narrative comments from his 2003 Officer Evaluation Report (OER).   

2.  The applicant states, in effect:

	a.  the Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) does not answer the basic question raised in compliance with the Army G-1 Officer Selection Policy Board Branch Standing Operating Procedure (SOP).  The SOP clearly states in Chapter 1 that it applies to all PSBs (including Special Selection Boards (SSBs)) convened under the provisions of Title 10, U.S. Code, section 628.  The G-1 SOP cites Army Regulation 10-5 (Headquarters, Department of the Army) as the authority for Army G-1 to publish the G-1 SOP (referred to as a regulation in the ROP) applicable to the convening and conduct of PSBs, including SSBs. 



	b.  Army Regulation 10-5, paragraph 2-30a(2)(d), delegates the authority to Army G-1 to publish additional regulations and procedures for the promotion selection system.  It is wrong and unfair for the ABCMR to selectively require compliance with the G-1 SOP for convening and conducting PSBs as well as SSBs.

	c.  it is unfair and wrong for the ROP to reference the G-1 SOP to support no SSB arising out of the successive voting by a brigadier general (BG) of his board file in January 2008 and August 2008 while failing to address the undisputed failures to comply with the G-1 SOP for conducting the SSBs for FY05 and FY07. 

	d.  the ROP fails to specifically address the applicability of and requirement to comply with the G-1 SOP, a regulation published by the Army G-1 under the authority of the Secretary of the Army.  A plain reading of the cited provisions of the G-1 SOP in the original application and the undisputed facts in this proceeding establish that the two SSBs did not comply with the G-1 SOP, as alleged in the original application.

   e.  he submits that the ABCMR fails in its responsibility to exercise independent judgment and analysis to determine whether all the applicable administrative procedures and requirements were complied with in convening and conducting the subject PSBs (including two SSBs).  

	f.  the fact that the G-1 SOP change was coordinated with the Office of the JAG and the Office of the General Counsel does not make it right when Army Regulation 600-8-29 (Officer Promotions) clearly provides otherwise.  The true purpose of the change was to allow a JAG officer to successively vote in PSBs when there is no law requiring a JAG officer to serve as a member of any promotion SSB, but there is a law and Army regulation prohibiting successive voting for the same grade and competitive category.  

	g.  the ABCMR ROP fails to properly address the applicability of and failure to comply with the G-1 SOP in how the two SSBs were conducted.  It is insufficient to summarily conclude that the PSBs and SSBs complied with the law and Army regulation when it is undisputed that they did not comply with specific provisions of the G-1 SOP.

	h.  the Department of Defense (DOD) policy states each Military Department shall use an SSB for the reasons listed in Section 628(a) or 14502(a) of Title 
10, U.S. Code or if the decision of the original board involved a factual or administrative error.  A violation of the G-1 SOP is an administrative error.  He should not be denied fair consideration by SSBs for promotion to COL due to the repeated administrative error in how these 4 PSBs, including the 2 SSBs, were convened and conducted by the Army.

	i.  the tone of the ROP implies that because he was given 2 SSBs and considered by a number of PSBs and not selected by any of them it must be because his file, performance, and potential do not support promotion.  He is not arguing an entitlement to be promoted; however, he is entitled to a fair selection board where the deck is not stacked against him.  
	
   j.  the ABCMR was really given a simple question to answer – does the G-1 SOP apply?  If yes, then administrative errors were committed in the convening and conduct of the 2 SSBs for FY05 and FY07.  The ROP does not address why the sections of the G-1 SOP cited in the original application are not applicable to SSBs when the provisions clearly state they apply to all PSBs including SSBs convened under provisions of Title 10, U.S. Code, section 628.  The ROP also does not state why the violations were not material administrative errors to counter the arguments, documents, and references in the original application establishing why and how the violations put him at a major disadvantage for selection resulting in unfair promotion and SSB considerations.    

3.  The applicant also states:

	a.  the Army has established a regulation, the G-1 SOP, to ensure that a majority of the Special Branch or non-Special Branch members does not determine whether a particular Special Branch officer is recommended for promotion to the next grade.  Is it really fair to allow a majority of either JAG officers, as took place in the FY05 SSB, or a majority of non-JAG officers, as was done in the FY07 SSB, to determine whether he was selected for promotion?  

	b.  the G-1 SOP got it right to impose specific additional membership requirements for all Special Branch PSBs including SSBs.  The ROP completely ignores the G-1 SOP, requirements by simply stating the SSBs complied with the Army regulation requirements for membership which only established minimum membership requirements.  Imposing the additional membership requirements ensures a fair consideration of Special Branch officers by both PSBs and SSBs.  Changing the board member composition for a Special Branch officer SSB does not pass the commonsense test of putting the officer in as nearly as possible the position he or she was in when originally considered for promotion, but for the error requiring an SSB under provisions of Title 10, section 628.



	c.  the ABCMR decision incorrectly upholds the G-1 SOP change that was made on 14 February 2008 after the BG voted his file in January 2008 as the only JAG board member of the FY07 SSB to specifically allow successive voting by the BG as the president of the FY08 PSB held in August 2008.  The conflict section of the G-1 SOP, in effect in 2002 through October 2009, states if an SOP provision conflicts with law or regulation, the law and regulation take precedence over the SOP.  The G-1 SOP change to allow successive voting directly conflicts with Army Regulation 600-8-29, chapter 1, general provisions applicable to all selection boards; therefore, the ABCMR ROP is incorrect to conclude that the FY08 PSB complied with all applicable regulations.

	d.  it should be apparent to all including the ABCMR that the Army G-1 recognized the conflict and changed the provision in the October 2009 G-1 SOP to comply with Army Regulation 600-8-29, chapter 1, prohibiting any successive voting in selection boards for the same grade and competitive category.

	e.  the ROP makes no sense when the plain reading of the G-1 SOP states include five recommended for promotion from in and above the zone in the 
10 comparison files.  The ROP does not even attempt to rebut the stated impact of this administrative error.  The SSB members know who the above-the-zone, passed over officers are as soon as they see the date of rank on the second documents in the officer's board file.  Even if the SSB members score his file and the above-the-zone selectee's file as low as 3s, the SSB recommendation must be to recommend him for promotion in accordance with the Army G-1 SOP which states any case record with a score equal to or higher than the lowest scored recommended comparison record will be considered selected.   

	f.  it is not the original order of merit number that matters in the SSB proceeding.  What matters most is whether the SSB members score the previously non-selected officers file equal to or higher than any 1 of the 
5 previously-selected officers' files.

	g.  the ROP admits he was only compared against primary-zone selectees with a known selection rate of 50% or better while passed over above-the-zone officers have a well-known less than 5% chance of selection; a grossly unfair SSB proceeding considering the known statistical difference in selection rates between above-the-zone and primary-zone officers.  And considering the basis 
for selection by the SSB is having a score equal to or higher than the lowest score of the previously selected comparison files; the odds are extremely low that the SSB members are going to score a passed over above-the-zone officer's file equal to or higher that a first-time considered primary zone officer selectee's file.

	h.  including passed over above the zone officer selectees is an easy requirement to meet in conducting SSBs.  The Army G-1 knows who the above-the-zone selectees are.  It is too easy to have 1 or more of the above-the-zone selectee files included in the 5 selectee comparison files.  There is absolutely no fairness in only comparing a passed over above-the-zone officer granted an SSB against first-time considered, primary-zone officer selectees.

	i.  the ROP fails to address the admitted violation of the G-1 SOP by allowing a COL to successively vote his board file in 2006, 2007, and again in 2009.  The Army G-1 admits – yes it was wrong to have the COL serve on so many PSBs, which is clearly inconsistent with the Army G-1 SOP, but since the other five FY09 board members were properly selected under the G-1 SOP; it is okay for the COL to vote his file for a third time in August 2009.

	j.  he never alleged an "entitlement to promotion to COL" as inappropriately stated in the ROP.

	k.  his application alleges that 4 PSBs (2 SSBs, FY05 and FY07; and 
2 PSBs, FY08 and FY09) did not comply with all applicable law, regulation, and procedures.  He is simply requesting that the PSBs (including the SSBs) considering him for promotion to COL comply with all applicable law, regulation, and procedure, including in particular the provisions of the G-1 SOP for promotion and SSBs to the extent that they do not conflict with applicable law or regulation (e.g., law and Army regulation prohibiting successive voting for the same grade and competitive category).
 
	l.  he does not believe he can receive a fair consideration with a JAG officer voting his file in an SSB.  The ROP never disputes the allegation that the JAG officer will always know which files are the 5 previously selected for COL.  The intent of the G-1 SOP is that the SSB members not know which files are the 
5 selectee files prior to scoring all 11 files.

4.  The applicant further states:

	a.  the G-1 SOP states the recorder will circulate comparison and case records to board members for scoring.  The records will be presented randomly and will not be identified by type.  After board members have voted, the board will rank order all records based on cumulative score.  The recorder will identify comparison records and case records.  Any case record with a score equal to or higher than the lowest scored recommended comparison record will be considered selected.

	b.  a lot of the statements in the ROP with respect to the OER (May 2003 OER appeal) are inappropriate and unwarranted as well as merely opinions.  The basic allegation was that the narrative comments by the rater did not comply with the Army regulation requirements that the rater specifically comment on future assignments, schooling, and promotion.  It is undisputed that the rater comments in the May 2003 OER did not comply with the Army regulation mandatory requirements for narrative comments by the rater; therefore, the requested modification is warranted.  The Army regulation does not read should comment.  It reads "will," making such comments mandatory. 

	c.  the undisputed fact that the Army G-1 was not complying with its own SOP for convening and conducting SSBs for Special Branch officers should not stop the ABCMR from fulfilling its duty and responsibility.  The ABCMR has a responsibility to require strict compliance with all the administrative procedures and regulations applicable to PSBs and SSBs convened under Title 10 U.S. Code, section 628 to ensure fairness and equity for any officer disadvantaged by material administrative errors.

	d.  he is seeking oversight of this proceeding by the Senate Armed Services Committee, his state Senator (NY), the Under Secretary of Defense for Personnel and Readiness, and DOD Inspector General (IG) because anyone reading the original application and ROP discussion and conclusions can easily realize there is an attempt to ignore clear and obvious administrative errors.  He realizes none of the officials copied on this request may have the authority to decide these proceedings.  It is his hope that their oversight will ensure a fair and full consideration of the questions raised rather that this initial rubber stamping of the prior Army G-1 determinations that the PSBs and SSBs were fair and complied with all applicable law or regulation without fully addressing the clearly stated applicability of the G-1 SOP, regulation, and undisputed violations of the regulations' provisions.

	e.  the original application raised some fundamental questions about the opportunity for unfairness and inequality in the JAG assignment and promotion systems.  The ABCMR, rather than check the facts of the statements in the original application which were supported by historical data and PSB results, ignores the fundamental questions.        

	f.  if the ABCMR concludes 4 new SSBs are a just, fair, and equitable result in this proceeding, rather that directing his promotion to COL, he requests the ABCMR:


		(1)  direct the Army Board Secretariat and G-1 to ensure compliance with the specific 50%/50% membership requirement between Basic Branch and JAG members.  The G-1 SOP is directive and published by the Army G-1 under the authority of the Secretary of the Army.
		
      (2)  prohibit successive scoring by any promotion or SSB member of his board file for promotion to COL as currently prohibited by the G-1 SOP, dated October 2009.

		(3)  direct the Army Board Secretariat and G-1 to include some of the above the zone selectee files in the 10 comparison files for scoring by the SSB in comparison to the score of his board file by any SSB convened to reconsider him for promotion to COL to ensure fairness in how the SSB is conducted.

		(4)  direct the Army G-1 to modify the May 2003 OER as requested in the OER appeal and provide an appropriate instruction to any PSB (including any SSB) considering the modified OER.  He realizes a special review board may be required if the May 2003 OER is modified as requested and no SSBs are directed by the ABCMR based on this request for reconsideration and the undisputed failures to comply with applicable requirements of the 2002 G-1 SOP applicable to the convening and conduct of both promotion boards and SSBs.

		(5)  prohibit any JAG officer who has previously scored his board file from serving on any of the SSBs recommended by the ABCMR or as a result of an Army Special Review Board (ASRB) decision. 

		(6)  prohibit JAG officers from serving as a member of the SSBs given the high probability of prior knowledge regarding which 5 of the 11 files are COL selects in the Army JAGC.  

5.  The applicant provides five enclosures:

* G-1 SOP - portions
* SOP change - portions
* Portions of memorandum, G-1 SOP, dated October 2009
* ABCMR Record of Proceedings
* G-1 SOP, SSB procedures - portions






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 AR20110011529, on 12 January 2012.

2.  The following arguments are new evidence that will be considered by the Board:

* no officer will serve on two successive selection boards for the same grade and competitive category
* successive voting fails to comply with Army Regulation 600-8-29
* only above-the-zone files can be used as comparisons

3.  He was appointed as a first lieutenant in the Regular Army JAGC in 1987.  He was promoted to MAJ on 1 March 1995 and LTC on 1 July 2000.

4.  During the month of May 2003, he received the contested OER – a permanent change of station OER which covered 12 months of rated time from 2 June 2002 through 21 May 2003 for his duties serving as the "DSJA/Chief, Personnel and Environmental Law" while assigned to Office of the SJA, HQ, Training and Doctrine Command, Fort Monroe, VA.  The OER shows the following entries:

	a.  In Part IV (Performance Evaluation –Professionalism), the rater box-checked the "Yes" blocks for all seven Army values and the "Yes" block for the appropriate attributes, skills, and actions.

	b.  In Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Outstanding Performance – Must Promote) block and he entered the following comments as to potential, "In short, a superb performance by a great attorney/Soldier who consistently displayed the robust potential to be a significant leader in the Corps."  No comments were made about his potential.

	c.  In Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Best Qualified" block and a second "X" in the "Yes" block to indicate he senior rated four officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.  The senior rater listed three future assignments for which the applicant was best suited, rated the applicant's potential as "ACOM" and entered appropriate comments in Part VIIc.

5.  The applicant subsequently received the following OERs:

* Annual, 22 May 2003 through 21 May 2004; Outstanding Performance – Must Promote; Best Qualified; Center of Mass
* Annual, 22 May 2004 through 21 May 2005; Outstanding Performance – Must Promote; Best Qualified; Above Center of Mass

6.  He was considered for promotion to COL, primary zone, by the FY05 JAGC COL APL that convened in August 2005, but he was not selected.  The FY05 COL JAGC PSB consisted of BG B as President; and BG M, COL DGC (JAGC), COL S, COL B (U.S. Army Reserve (USAR)), and COL FDD (JAGC) as members.

7.  On 26 May 2006, a memorandum was initiated to the Secretariat for Department of the Army Selection Boards, requesting the applicant be reconsidered for promotion to COL by an SSB under the FY05 criteria.  The Army G-1 directed a memorandum that stated he was a member of the Acquisition Law Specialty Program would be removed from his file.

8.  During the month of May 2006, the applicant received an annual OER from 22 May 2005 through 21 May 2006.  His rater rated him "Outstanding Performance – Must Promote" and his senior rater rated him "Best Qualified" and "Above Center of Mass."

9.  He was considered for promotion to COL by the FY06 SJA COL Army Promotion List (APL) that convened in August 2006 but he was not selected.  The FY06 COL JAGC PSB consisted of MG W as President; and BG G, COL MAR (JAGC), COL C, COL B, and COL SER (JAGC) as members.

10.  On 13 September 2006, by letter from the Secretariat for Department of the Army Selection Boards, the applicant was informed that a board of officers convened on 13 September 2005, in response to his 14 June 2005 request for an SSB, and considered his file for promotion to COL by an SSB.

11.  He was considered by an SSB that found him fully qualified, but not best qualified to assume the duties of the next higher grade and therefore he was not recommended for promotion.  The SSB membership consisted of BG D as President; and COL GOB (JAGC), COL S, COL JMG (JAGC), and COL M as members.

12.  During the month of May 2007, the applicant received an annual OER from 22 May 2006 through 21 May 2007.  His rater rated him "Outstanding Performance – Must Promote" and his senior rater rated him "Best Qualified" and "ACOM."

13.  He was considered for promotion to COL by the FY07 JAGC COL APL that convened in August 2007, but he was not selected.  The FY07 COL JAGC PSB consisted of MG D as President; and BG P, COL K, COL JMG (JAGC), COL SEC (JAGC), and COL S as members.

14.  On 10 January 2008, he appealed the contested OER (2 June 2002 through 21 May 2003) to the ASRB.  He contended that the rater did not enter comments about his potential in Part Va.  He also requested reconsideration for promotion to COL by the FY05 and the FY06 COL PSB's.  He claimed the omission of comments about potential by his rater had a negative impact and sent a "red flag" to the promotion board.

15.  On 22 January 2008, the applicant was informed by letter from the Secretariat for Department of the Army Selection Boards that a board of officers convened on 17 January 2008 and considered his file for promotion to COL by an SSB.  Reconsideration was granted by the Army G-1 because of the consecutive use of two of the same board members from the FY05 SSB for the FY07 regular board.

16.  He was considered by an SSB under the same criteria established for the FY07 COL JAGC PSB that convened on 14 August 2007.  The SSB stated the applicant was originally considered but not recommended by the FY07 board.  The SSB found him neither fully qualified nor best qualified to assume the duties of the next higher grade and therefore he was not recommended for promotion.  The SSB membership consisted of BG C as President; and BG CJT (JAGC), BG J, BG M, and BG M as members.

17.  On 7 August 2008, the ASRB determined the applicant did not provide clear and convincing evidence of a strong and compelling nature to show that the promotion board that did not select him interpreted this OER as a "do not promote" as he contended.  The ASRB denied his petition.

18.  He was considered for promotion to COL by the FY08 JAGC COL APL that convened in August 2008, but he was not selected.  The FY08 COL JAGC PSB consisted of BG T; and BG D, COL R, COL MWM (JAGC), COL SWR (JAGC), and COL K as members.

19.  He was considered for promotion to COL by the FY09 JAGC COL APL that convened in August 2009, but he was not selected.  The FY09 COL JAGC PSB consisted of LTG C and BG L, COL JMG (JAGC), COL SJB (JAGC), COL A, and COL K as members.

20.  On 23 August 2011, the applicant made a complaint to the Army IG.  On 
25 August 2011, his case was closed without action because he stated he was working with his command and did not want to file any allegations at that time.  No further IG action was required. 

21.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the OER system.

	a.  Paragraph 3-20 stated that Part V of the form provided for the rater's evaluation of the rated officer's performance and potential.  The rater comments on specific aspects of performance and potential.  These comments are mandatory.

	b.  Paragraphs 3-57 and 6-6a provided that an OER accepted by HQDA and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	c.  Paragraph 6-10 stated that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

22.  Title 10, U.S. Code, section 612 (Composition of selection boards) states no officer may be a member of two successive selection boards convened under section 611 of this title for the consideration of officers of the same competitive category and grade.  This section does not mention section 628.

23.  Title 10, U.S. Code, section 628, addresses SSB's.

	a.  Subsection 628a (Persons Not Considered by Promotion Boards Due to Administrative Error).



		(1)  If the Secretary of the Military Department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered, or the name of a person that should have been placed on an all-fully-qualified officers list under section 624(a)(3) of this title was not so placed, the Secretary shall convene an SSB under this subsection to determine whether that person (whether or not then on AD) should be recommended for promotion.

		(2)  An SSB convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record would have appeared to the board that should have considered him.  That record shall be compared with a sampling of the records of those officers of the same competitive category who were recommended for promotion and those officers who were not recommended for promotion by the board that should have considered him.

		(3)  If an SSB convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration for selection for appointment to a grade other than a general officer or flag officer grade, the person shall be considered to have failed of selection for promotion.

	b.  Subsection 628b (Persons Considered by Promotion Boards in Unfair Manner).

		(1)  If the Secretary of the Military Department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion.  In order to determine that there was material unfairness, the Secretary must determine that:  (a) the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error or (b) the board did not have before it for its consideration material information.

		(2)  An SSB convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record, if corrected, would have appeared to the board that considered him.  That record shall be compared with the records of a sampling of those officers of the same competitive category who were recommended for promotion and those officers who were not recommended for promotion by the board that considered him.
		(3)  If an SSB convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration, the person incurs no additional failure of selection for promotion.

	c.  Subsection 628c (Reports of Boards).

		(1)  Each SSB convened under this section shall submit a written report to the Secretary of the Military Department concerned signed by each member of the board containing the name of each person it recommends for promotion and certifying that the board has carefully considered the record of each person whose name was referred to it.

		(2)  The provisions of sections 617(b) and 618 of this title apply to the report and proceedings of an SSB convened under this section in the same manner as they apply to the report and proceedings of an SSB convened under section 611(a) of this title.

	d.  Subsection 628d (Appointment of Persons Selected by Boards).

		(1)  If the report of an SSB convened under this section, as approved by the President, recommends for promotion to the next higher grade a person whose name was referred to it for consideration, that person shall, as soon as practicable, be appointed to that grade in accordance with subsections (b), (c), and (d) of section 624 of this title.

		(2)  A person who is appointed to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the Active Duty List (ADL) as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him.

	e.  Subsections 628e (Deceased Persons), 628g (Judicial Review), 628h (Limitations of Other Jurisdiction), and 628i (Existing Jurisdiction) are not applicable to the applicant.

	f.  Convening of Boards.  A board convened under this section:  (1) shall be convened under regulations prescribed by the Secretary of Defense; (2) shall be composed in accordance with section 612 of this title or, in the case of board to consider a warrant officer or former warrant officer, in accordance with section 573 of this title and regulations prescribed by the Secretary of the Military Department concerned; and (3) shall be subject to the provisions of section 613 of this title.
	g.  Regulations.

		(1)  The Secretary of each Military Department shall prescribe regulations to carry out this section.  Regulations under this subsection may not apply to subsection (g), other than to paragraph (3)(C) of that subsection.

		(2)  The Secretary may prescribe in the regulations under paragraph 
(1) the circumstances under which consideration by an SSB may be provided for under this section, including the following:  (a) the circumstances under which consideration of a person's case by an SSB is contingent upon application by or for that person and (b) any time limits applicable to the filing of an application for such consideration.

		(3)  Regulations prescribed by the Secretary of a military department under this subsection may not take effect until approved by the Secretary of Defense.

	h.  Promotion Board Defined.  In this section, the term "promotion board" means a selection board convened by the Secretary of a Military Department under section 573(a) or 611(a) of this title.

24.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.

	a.  Paragraph 7-2 states SSB's may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers one or more of the following:  an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

	b.  Paragraph 7-3 (Cases Not Considered) states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or the Army Military Human Resource Record (AMHRR).  




	c.  Paragraph 7-5 (Convening SSBs) states SSBs will normally be convened within 120 days after a case is approved for consideration.  Authority to approve cases for referral to this board is delegated to the Deputy Chief of Staff for Personnel, or his or her designee, or the DA ASRB.  The same SSB may not consider an officer for the same grade under two successive boards' criteria.

	d.  Paragraph 7-6 (Membership) states unless otherwise required by Title 10, U.S. Code, section 612, membership for SSB's will consist of at least five officers in a higher grade than those being considered, with at least one officer from each competitive category to be considered by the board.  No officer may be a member of two successive SSB's considering officers of the same competitive category and grade.  Further, an officer who was a member of a regular selection board may not serve on an SSB that is reconsidering the recommendations of 
that regular board.

25.  Army Regulation 10-5 reflects the organization and functions of HQDA resulting from the implementation of the DOD Reorganization Action of 1986 (Public Law 99-433).

26.  Army G-1 SOP states:

	a.  "Purpose.  As authorized by AR [Army Regulation] 10-5 this SOP delineates responsibilities and procedures regarding convening, recessing, and processing the results of HQDA selection boards."

	b.  "Conflict Resolution.  Statutes, DOD directives, or Army regulatory documents take precedence over this SOP.  Exceptions to the SOP will be made only under the authority of the DCS, G-1 or his authorized representative and only to the extent that the DCS, G-1 has the authority to grant the exception."  	

DISCUSSION AND CONCLUSIONS:

1.  The applicant's complaint is apparently that an officer served on an SSB and then served on the next PSB that considered him.  This particular circumstance does not appear to be prohibited by law or regulation.  Title 10, U.S. Code, section 628 requires SSBs be composed according to requirements in Title 10, U.S. Code, section 612.  Section 612 prohibits membership on two consecutive boards convened under Title 10 U.S. Code, section 611.  This section does not mention section 628 (i.e., SSBs).  Army Regulation 600-8-29, paragraph 7-6 prohibits an officer from being a member of two successive SSBs considering officers of the same competitive category and grade.  

2.  Each of the regular and SSBs that considered his promotion file met the legal and regulatory membership requirement by having the appropriate number of JAGC officers serving on each board.  His dissatisfaction with the outcome of each board does not invalidate the membership of these boards.

3.  He apparently claims that only above-the-zone files can be used as comparisons.  Army Regulation 600-8-29 and Title 10, U.S. Code, section 628(a)(2) do not require that SSBs only use records of non-selected individuals that are above the zone. 

4.  His request for promotion to COL was noted.  Evidence shows:

   a.  he was considered for promotion to COL by the FY05 board, but he was not selected.  He was granted an SSB due to an administrative error and he was not selected.   
   
   b.  he was considered for promotion to COL by the FY06 and the FY07 boards and he was again not selected.  He was granted an SSB due to an administrative error, but he was not selected.     

5.  The reasons for his non-selection are not known; by law, promotion boards may not divulge that information.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief for promotion to COL.

6.  He contends the narrative comments by the rater in his 2003 OER should be removed because the rater did not comply with Army Regulation 623-105 requirements (specifically comment on future assignments, schooling, and promotion).  However, the contested OER is neither referred nor negative.  Although the rater did not specifically recommend future assignments, schooling, or promotion, his comments were a positive endorsement of the applicant as a future leader.  The applicant has not provided sufficient evidence to show the rater comments on the OER accepted by HQDA did not represent the considered opinion and the objective judgment of the rater at the time of preparation.    










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 AR20110011529, dated 12 January 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.



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