IN THE CASE OF:	

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130005265 


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 correction of his records to show he received a DA Form 67-9 (Officer Evaluation Report (OER)) for the period covering 14 April through 27 June 2011 or issuance of a letter explaining his situation [missing OER] be added to his promotion packet before a Special Selection Board (SSB).  

2.  In a 25 June 2013 email, he also requests promotion to lieutenant colonel (LTC) or consideration of an SSB for promotion to LTC under the Fiscal Year (FY) 2012 Active Guard Reserve (AGR) Judge Advocate (JA) LTC Promotion Selection Board criteria.  

3.  He states:

	a.  He was not given an OER from his previous command, U.S. Army Reserve Command (USARC) Office of the Staff Judge Advocate (OSJA).  He was due an OER because he was in this command for 104 days prior to a permanent change of station (PCS) to go to The Army Judge Advocate General's (JAG) Legal Center and School for a 10-month long Master of Law's program.  

	b.  Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 
2-10, dated August 2007, states in part, "…a Soldier will complete 90 calendar days in the same position under the same rater."  The regulation was updated in June 2012 and the same applies.  His rating period was 14 April 2011 through 27 June 2011.  He didn't receive an OER for this period and he was led to believe he was not due a report.  
   c.  He went before the FY12 AGR JA LTC Board without this OER and he believes it materially affected his board file by causing him to be passed over for promotion.  He needs to have an OER for that time period to go before an SSB.  

	d.  He was also told by his current command and other G-1 personnel that he was due an OER.  After researching this issue for himself, he discovered in AR 623-3 that he was due an OER.  

4.  He provides:

* Memorandum, Subject: Request for OER and SSB Board, dated 18 December 2012
* Memorandum, Subject:  FY12 LTC AGR JA Promotion Selection Board, dated 13 December 2012
* Memorandum, dated 1 May 2005
* Nine OERs for the periods ending 27 January 2002, 5 March 2004, 5 March 2005, 30 November 2005, 25 June 2006, 25 June 2007, 13 April 2008, 13 April 2009, 13 April 2010, and 13 April 2011
* Four DA Forms 1059 (Service School - Academic Evaluation Report), dated 17 February 1994, 20 January 2006, 22 April 2008 and 24 May 2012
* Email correspondence
* Letter dated 15 February 2013 from the Army Board for Correction of Military Records (ABCMR)
* Memorandum, Subject: FY12, LTC, AGR, JA (SSB) - Major (MAJ) [applicant's name], xxxx, 27A - Timeline, dated 14 December 2012 
* DA Form 67-9-1 (OER Support Form) 
* List dated 27 September 2012 of military personnel due evaluation reports for the 84th Training Command
* Non-select for promotion to LTC
* Military photograph
* Army Commendation Medal award certificate
* Two Certificates of Appreciation
* Certificate of Completion, dated 19 April 2005
* Transcripts
* Two Certificates of Training for Observer/Controller-Trainer
* Masters of Business Administration Degree
* Two Certificates of Enrollment
* Officer Record Brief
* Letter, dated 22 July 2012, addressed to President, LTC AGR JAG Promotion Board
5.  In April 2013 and November 2013, he provided additional documents including a self-authored statement, email correspondence, and a memorandum dated 4 November 2013.

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving in an AGR status in the rank of MAJ and was assigned to the 84th Training Command.  

2.  The applicant was appointed as a Reserve commissioned officer on 1 May 1993 in the rank of second lieutenant.  

3.  On 5 March 2005, he was appointed as a Reserve CPT in the JAG Corps.  He was promoted to MAJ on 22 May 2006.

4.  U.S. Army Human Resources Command (HRC) Orders R-03-881777 dated 18 March 2008 ordered him to active duty in an AGR status and he was assigned to Headquarters, USARC, Fort McPherson, GA with a report date of 14 April 2008.  

5.  He provided the following DA Forms 67-9:

	a.  A Change of Rater OER for the period ending 13 April 2008 shows he was rated as a Military Law Attorney at USARC.  His rater is listed as LTC FJC, his intermediate rater as LTC LLW, and his senior rater as Colonel (COL) SEC.

	b.  An Annual OER for the period ending 13 April 2009 shows he was rated as an Operational Law Attorney at USARC.  His rater is listed as LTC CAC and his senior rater as COL SEC.  

	c.  An Annual OER for the period ending 13 April 2010 shows he was rated in the same duty position at USARC and with the same rating officials.

	d.  An Annual OER for the period ending 13 April 2011 shows he was rated as an Administrative/Civil Law Attorney at USARC.  His rater is listed as LTC DSY, his intermediate rater as LTC SEB, and his senior rater as COL JMH.  

6.  He provided a DA Form 67-9-1 for his duty position as a JAG officer at Headquarters, USARC, Fort McPherson, GA on 14 April 2011.  His rater was listed as LTC DSY and his senior rater as COL JMH.  The support form was not signed.  

7.  His service record is void of an evaluation report for the period 14 April to 27 June 2011.

8.  He provided a DA Form 1059, dated 24 May 2012, which shows he attended the 60th JA Officer Graduate Course from 15 August 2011 through 24 May 2012 at the JAG Legal Center and School in Charlottesville, VA.

9.  In a 13 December 2012 memorandum, he submitted a request to HRC for an SSB for promotion to LTC under the FY12 LTC AGR JA criteria.  

10.  He provided email correspondence which indicates:

   a.  On 11 October 2012, he contacted his former rater, LTC DSY, concerning receipt of his evaluation report for the period 14 April 2011 to 14 August 2012.  On the same date, LTC DSY informed him that his request was sent to G-1.  

   b.  On 12 November 2012, COL JMH (USARC SJA) informed COL DC that they consulted HRC concerning the applicant's request for a final OER from USARC.  Based on HRC's guidance, LTC DSY cannot rate the applicant because he did not serve as his rater for 120 days as required by paragraph 
4-4c(1)(b) of AR 623-3, 2007 version.  COL JMH stated the period of time between the applicant's last OER from USARC and the day he signed out is the date that should have triggered a change of rater OER.  It is only about 104 days from 14 April to 26 July 2011.

   c.  On 29 November 2012, he contacted HRC regarding whether he is due an OER from his old unit.  On the same date, HRC responded to his inquiry and informed him that he should probably have had a departure TDY (temporary duty) evaluation report rendered for the period 14 April through 26 July 2011, the day prior to his departure (reference paragraph 3-44, AR 623-3).  He was informed that the minimum rating period for AGR Soldiers is 90 days.  

   d.  On 30 November 2012, an HRC representative (Ms. DB) informed him that she had given him faulty information and stated she cited the current Army regulation which does allow for AGR officers to receive evaluation reports when 90-day eligibility rules have been met.  However, since the THRU date of his 2011 report would have fallen under the old regulation, the rules were different.  Under the old AR 623-3, he would have fallen under the provisions of chapter 4, AR 623-3 which applied to AGR officers (referenced paragraph 4-1a(1)) which required 120-day minimum rating eligibility rule.  The new AR 623-3, dated 5 June 2012, was effective for reports with THRU dates on or after 5 July 2012.

11.  On 18 December 2012, HRC disapproved his request for an SSB for the FY12 LTC JAG AGR board and he was advised to apply to this Board.  

12.  He provided a memorandum dated 18 December 2012 addressed to this Board in which he outlines his request for an OER and SSB.  He stated:

	a.  While he was still assigned to the USARC OSJA he was told he was due an OER for the period beginning 14 April 2011 through his final date at the USARC OSJA.  He was later told he would not receive an OER for that time period.  He left the USARC OSJA in July 2011, started PCS leave and permissive TDY, and began the JAG Legal Center and School on 15 August 2011.  He was at the JAG Legal Center and School from 15 August 2011 to 24 May 2012 when he graduated from the Graduate program.  

	b.  He went to HRC Officer Branch on 19 July 2012 to get help with his board file in preparation for the upcoming JA AGR LTC Promotion Board and he also got help from his career advisor.  At that time, the absence of an OER for the period 14 April 2011 to 26 July 2011 was not an issue.  He had questions about not having an OER from 14 April 2011 through the date of the promotion board.  He was told an Academic Evaluation Report (AER) would reflect he was in school for a majority of that time and this would not be an issue.

	c.  The missing OER for the period in question didn't become an issue until the 84th Training Command sent an email on 28 September 2012.  This happened after the promotion board convened.  After investigating, he was told by the S-1 and G-1 that he was due an OER from the USARC OSJA from 14 April 2011 to the date he reported to the JAG Legal Center and School.

	d.  He sent an email to his former rater, LTC DSY, at the USARC OSJA and was told via email that his request was sent to the USARC G-1 section.  The JA AGR LTC Promotion Board results were released on 21 November 2012 and he found out he was a non-select.  His deputy SJA at the 84th Training Command mentioned to him that he should consider getting a "relook" board because he should have gotten an OER for the period he spent at the USARC OSJA.  His SJA at the 84th Training Command communicated with the USARC SJA on his behalf and was told they would investigate the matter.  

	e.  The USARC SJA responded with a quote from AR 623-3, paragraph 
4-4c(1)b, dated August 2007 which indicates an OER is not due when the rater has not been the rater for at a minimum of 120 days.  He read this paragraph and realized it was not applicable to him as an AGR Soldier.  In an email from HRC he was told he should have received an OER for that period.  

	f.  The new regulation is much clearer - - AGR Soldiers are due OERs when a rater is the rater for a minimum of 90 days.  

13.  He provided additional email correspondence which indicates:  

   a.  On 7 March 2013, LTC DSY informed him that AR 623-3, paragraph 
4-4c(1)(b) applies to AGRs and requires 120 days and the new version of the regulation changed it to 90 days.  

   b.  On 15 April 2013, LTC DSY informed him that he had to contact OTJAG concerning his OER for the period in question.  LTC DSY indicated that the chain of command did an OER, but "pulled back when HRC said it was not necessary."  

   c.  On 22 April 2013, an HRC representative informed HQDA DCS G-1 that the 2006 regulation specified that chapter 4 applied to AGR Soldiers.  The representative stated "Paragraph 4-9a(7) is associated with the "report periods and types of officer evaluation reports" (i.e., change of rater, annual, change of duty, etc. etc.) but did not changed [sic] the 120 day rate [sic] eligibility rules...We fixed all the confusion in the 2012 regulation where AGR folks follow "ALL" the active army rules when it comes to rater eligibility, submission, etc. etc."

   d.  On 22 April 2013, his former rater, LTC DSY, stated "We ran the 120-day rater period up to OTJAG, which then coordinated with DCS, G-1.  It looks like the rating period back then was 120 days…" 

14.  He provided a self-authored statement dated 24 April 2013 in which he stated:

	a.  His former rater, LTC DSY, sent him an email stating the reason the USARC, OSJA has not given and will not give him an OER for the period 14 April through 26 June 2011 (104 days).  The first set of emails began with the date 22 April 2013 from LTC DSY to him and other email correspondence from the OTJAG and a representative from the HRC Evaluation Branch.

	b.  LTC JG, the representative from OTJAG, acknowledged that this issue was an issue that his office had not dealt with before and he also viewed it as a policy issue regarding whether an OER should have been given to him for the time period in question.  LTC JG opined that there was no "apparent legal objection" to the policy call by the HRC representative (Ms. DB).  Ms. DB indicated that AR 623-3, chapter 4, 2006 version applied to AGR Soldiers, but she failed to mention that chapter 4 also indicated "In addition to this chapter, all other provisions of the regulation apply unless otherwise indicated."  In addition, Ms. DB referenced the 2006 version of AR 623-3, but the 10 August 2007 version should have been reviewed since it was the regulation that governed his situation.  He alleges Ms. DB failed to address the issue which is the paragraph relied on by the USARC OSJA, specifically stating in paragraph 4-4c(1)(b)1, "For officers assigned or attached to organization for indefinite periods-- The rater will have served in that capacity for 120 calendar days."

	c.  He is an AGR officer who was not assigned or attached to an organization for an indefinite period so paragraph 4-4c(1)(b)1 does not apply to him.  There is no other indication in this chapter that 120 days is the standard applied to determining when an OER is due for an AGR Soldier.  Therefore, paragraph 4-1a should be relied on, which states, "In addition to this chapter, all other provisions of the regulation apply unless otherwise indicated."  Since there is no other standard for how long a rater needs to serve in the capacity before an OER is due, paragraph 2-5a(1) was relied on, which states in part "The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days."  Paragraph 2-10b also states "Normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater."

	d.  In the event the USARC OSJA is not required to produce an OER for the 104 day period, as a matter of due process, he should be allowed to include something in his board file which indicates the reason he didn't have an OER for that rating period and his packet should be allowed to go before an SSB since there may have been some confusion during the promotion board as to whether he should have had an OER in his board file for that 104-day period.  

   e.  He stated Ms. DB admitted that "…lots of folks didn't follow 'those rules'…" when referring to AGR officers receiving OERs for a minimum period of 90 days.  Ms. DB further indicated there was "confusion" that was "fixed…in the 2012 regulation where AGR folks follow 'ALL' the active Army rules when it comes to rater eligibility, submission, etc. etc."  

15.  His record in the interactive Personnel Electronic Records Management System (iPERMS) shows a Memorandum for Record, Subject:  Nonrated Statement, dated 21 June 2013, was filed in the performance portion of his Army Military Human Resource Record (AMHRR).  This memorandum indicates an evaluation report was not rendered for the period 14 April 2011 through 27 July 2011; therefore, the period was declared nonrated.

16.  In a 15 October 2013 memorandum, he was informed of the options available as a result of his second non-selection for promotion to LTC.

17.  In a 4 November 2013 memorandum, he informed this Board that he had been non-select for promotion to LTC a second time and he had been informed he would be released from active duty on 1 April 2014.  He stated he hadn't received an official notification letter, but he discussed it with HRC representatives over the phone.  

18.  AR 623-3, dated 10 August 2007: 

   a.  Paragraph 2-5a states the rater will be the person (immediate supervisor) in the rating chain who directs and is most responsible for the rated Soldier’s performance.  The rater will be the immediate supervisor who monitors/observes the day-to-day performance of the rated individual and directly guides the rated Soldier’s participation in the organization’s mission.

   b.  Paragraph 2-10 states "…Normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  
   
   c.  Paragraph 3-44 states an OER report is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and minimum rating qualifications have been met.

   d.  Paragraph 4-4c(1)(b) states for officers assigned or attached to organizations for indefinite periods, the rater will have served in that capacity for 120 calendar days.

   e.  Paragraph 4–9a(7) states reports are required on an AGR officer.  Reports will be submitted under the same rules used for the Active Army, except that reports will be forwarded to Commander, HRC, ATTN: AHRC–PAV–EO, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.

19.  DA Pamphlet 623-3 defines nonrated time as time periods when the rated Soldier cannot be evaluated by the rating officials.  Such time periods include but are not limited to school attendance, in-transit travel, hospitalization or patient status, convalescent leave, leave periods of 30 days or more, and periods when the rater has not met minimum qualifications.  

20.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that:

   a.  Mandatory selection boards will be convened each year to consider 
Army Reserve officers in an active status for promotion to captain through LTC.
   b.  Promotion advisory boards and SSBs will be convened on an "as 
needed" basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be issued an OER for the period 14 April through 26 June 2011 or issued a letter explaining his missing OER be added to his promotion packet before an SSB.  However, the evidence of record does not show that an error or injustice exists in this case.  

2.  He provided an OER Support Form for his duty position as a JAG officer at Headquarters, USARC for the period beginning date of 14 April 2011.  His rater is listed as LTC DSY.  

3.  Records show the applicant served in the same position under the same rater for 104 calendar days during the period 14 April through 26 June 2011.  He provides no evidence to show he was not assigned/attached to Headquarters, USARC for an indefinite period.  Based on the version of AR 623-3, chapter 4 in effect at the time, the rater was required to serve as his rater for 120 calendar days.  Therefore, his rater was not authorized to rate him for this period.  

4.  Since rating officials did not execute an OER for covering the applicant's performance of military duties during the period 14 April through 27 June 2011, the appropriate HRC officials have already declared this period nonrated time and filed an appropriate memorandum in his records

5.  The applicant was considered, but not selected, twice by the FY12 AGR JA LTC Promotion Selection Board.  

6.  The applicant requested consideration by an SSB for consideration for promotion to LTC.  In the absence of a basis to change or amend the applicant's records, there is no basis for consideration by an SSB for promotion to LTC or to promote him to LTC.  

7.  The applicant contends he was passed over for promotion due to the missing OER.  Since promotion boards are not permitted to disclose the reasons for 
non-selection for promotion, there is no record of the reason he failed to be selected for promotion to LTC by the FY12 AGR JA LTC Promotion Selection Board.  Promotion and retention are keenly competitive and many officers will not be selected.

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)                                         AR20130005265





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ABCMR Record of Proceedings (cont)                                         AR20130005265



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