BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20130005812 


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, consideration for promotion to the rank of lieutenant colonel (LTC)/pay grade O-5 in the Regular Army (RA) by a special selection board (SSB).

2.  The applicant states he was promoted to the rank of major (MAJ)/pay grade O-4 the U.S. Army Reserve (USAR) on 17 July 2003.  He was appointed as a commissioned officer in the RA, in the rank of MAJ (O-4), on 16 November 2007.

   a.  He states he became eligible for promotion to LTC in the RA in fiscal year 2008 (FY08) and had recently received two Officer Evaluation Reports (OERs) that rated him very highly (i.e., "top block").

   b.  He was not selected for promotion by the FY08 Promotion Selection Board (PSB) or several subsequent PSBs that considered him for promotion (through FY12).  However, his contemporaries, along with many other officers in pay grade O-4, were selected for promotion during this time.

   c.  He completed all civilian education and military training required for career advancement and he served several combat and operational assignments in the Middle East.

   d.  He has not been promoted for over 10 years.  Additionally, his inquiries about his non-selection for promotion to his chain of command and branch manager at the U.S. Army Human Resources Command (HRC) never returned any official response or reason for his non-selection.

   e.  In July 2012, The Army Times published articles pertaining to Army officer promotion rates during the years 2001 through 2011 and reported the selection rate for promotion to LTC was 107.5%.  In December 2012, the (current) Chief of Staff of the Army (CSA) also gave two interviews in which he stated there was a 100% promotion rate to LTC during the years 2001 through 2010; meaning all eligible MAJs were promoted to LTC during that period.

   f.  An inquiry he made about the promotion data produced a response from Officer Promotions, HRC, indicating that, since the CSA stated it, then it is true.  Given this promotion data, he asserts that he should have been selected for promotion to LTC during that period.

   g.  The applicant concludes, "If I'm [a] good enough officer to retain on active duty for thirty-five (35) years then I should be good enough and more than qualified to be promoted to LTC in the U.S. Army."

3.  The applicant provides copies of his:

* Officer Record Brief (ORB)
* promotion/appointment documents
* two HRC email messages
* two OERs
* three Army Times articles

CONSIDERATION OF EVIDENCE:

1.  The applicant served as an enlisted Soldier in the USAR and as an officer on active duty prior to reverting to the USAR (Ready Reserve) as a captain (CPT)/pay grade O-3.  

2.  He was appointed as an infantry CPT in the Georgia Army National Guard (GAARNG) on 7 December 2000, honorably separated on 5 February 2002, and transferred to the USAR Control Group (Reinforcement).

3.  He was assigned to a USAR unit on 5 May 2002 and mobilized on 16 January 2003 with U.S. Army Forces Command, Augumentation Unit.

4.  He was considered and selected for promotion by the FY03 Reserve Component Selection Board and promoted to MAJ (O-4) on 17 July 2003.

5.  On 2 June 2004, the Director, Personnel Actions and Services, HRC, 
St. Louis, MO, notified the applicant of his eligibility for retired pay at age 60.

6.  Three DD Forms 214 (Certificates of Release or Discharge from Active Duty) show the applicant was ordered to active duty, as a USAR officer, in support of:

* Operation Enduring Freedom from 16 January through 4 December 2003
* Operation Enduring Freedom from 1 June 2004 through 31 May 2005
* Operation Noble Eagle from 20 June 2005 through 16 March 2007

7.  He was ordered to active duty, as a USAR officer on 26 March 2007 for a period of 3 years to fulfill an active Army requirement.

8.  On 17 November 2007, he was appointed as an RA officer in the rank of MAJ.

9.  HRC , Fort Knox, KY, memorandum for record, dated 10 July 2010, shows the applicant was notified that the FY10 LTC PSB considered him for promotion; however, he was not among those selected for promotion.  He was informed that, under direction of the Secretary of the Army, a selection board was subsequently convened to consider twice non-selected MAJs for continuation on active duty and that the board recommended him for selective continuation (SELCON) for an additional 3 years.  On 20 July 2010, the applicant accepted the 3-year SELCON status.

10.  In support of his request, the applicant provides the following documents:

   a.  email messages (from March 2013) between the applicant and an official in Officer Promotions, HRC, that show:

* the applicant inquired about his eligibility for promotion to LTC in the USAR
* he was advised the FY08 Active Duty List (ADL) Board would have considered him had he still been in the USAR
* he inquired when he would have been considered for promotion to LTC in the RA
* he was advised the FY08 PSB would have considered him for promotion

   b.  two DA Forms 67-9 (OERs), covering the period 12 November 2004 through 28 February 2006, that show:
   
* the raters rated his performance and potential as "Outstanding Performance, Must Promote"
* the senior raters rated his potential for promotion as "Best Qualified" with "Above Center of Mass" ratings compared to that of other USAR MAJs rated by the senior raters

   c.   three articles from the Army Times, dated 29 July, 11 December, and 
17 December 2012, that show:

    	(1)  Army officials reported:

* from 2001 through 2010, the selection opportunity within the Army Competitive Category (ACC) for LTC averaged 100%
* from 2001 through 2011, the selection opportunity within the ACC for LTC was 107.5%
* in 2012, the selection opportunity within the ACC for LTC was 94.8%

* the primary zone select rate for basic branch promotions to LTC dipped below 83% for the first time in more than a decade

    	(2)  It was also reported that selection opportunity is calculated by dividing the number of primary zone candidates by the total number of above zone, primary zone, and below zone officers recommended by a promotion board.

   d.  email messages (from January and February 2013) between the applicant and an official in the HRC Service Center that confirmed the information provided in the Army Times, on 17 December 2012, was true that the selection opportunity within the ACC during the years 2001 through 2010 was 100% for LTC.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC, Fort Knox, KY.

   a.  The advisory official restated the applicant's request, as follows:  "The assertion, that [applicant] feels that 'he was not selected for promotion to LTC during the timeframe of FY08 through FY11 despite meeting the requirement for promotion, being best qualified, and there not being a valid reason for not recommending him for promotion to the next higher grade,' is without merit."

   b.  The advisory official noted the applicant's last placement on the ADL was 26 March 2007, which was less than one year from the respective board's convene date.  Therefore, he was ineligible to compete on the FY08 LTC Operations Support (OS), PSB, which convened on 2 February 2008.


   c.  The exact reasons for the applicant's non-selection for promotion by the FY09 through FY11 LTC OS PSBs are unknown because statutory requirements set forth in Title 10, U.S. Code, section 618, prevent disclosure of board proceedings to anyone outside the promotion board in question.  Therefore, it can be concluded that his overall record, when compared with the records of his contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

   d.  The advisory official conducted a review of the applicant's promotion file and provided possible reasons for non-selection based on:

    	(1)  two OERs, covering the period 1 March 2006 through 17 March 2007, that show:

* the raters rated his performance and potential as "Satisfactory Performance, Promote"
* the senior raters rated his potential for promotion as "Fully Qualified" with "Center of Mass" ratings compared to that of other USAR MAJs rated by the senior raters

    	(2)  He also called attention to an OER, covering the period 1 February through 30 September 1988, as possibly having an impact on the applicant's selection for promotion.

 		(3)  He noted the boards were "Best Qualified" and officers deemed "Fully Qualified" are ranked in an order of merit based upon their board scores and then recommended for promotion up to the respective selection objective (i.e., total number authorized for promotion).  

   e.  In response to the promotion percentage for LTCs referenced by the applicant, the advisory official provided an explanation of the overall promotion selection opportunity.  By way of example he offered:  1 of 10 above zone candidates, 8 of 10 primary zone candidates, and 1 of 10 below zone candidates being recommend for promotion would produce a 100% selection opportunity rate (e.g., 1 + 8 + 1 = 10; 10 (primary zone candidates) / 10 (total selected from all zones) = 100% promotion opportunity.

12.  On 21 May 2013, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.

13.  On 25 June 2013, the applicant provided his response to the advisory opinion, along with 22 enclosures (21 are identified on a List of Enclosures).

   a.  He asserts that the advisory opinion is unfavorable and inaccurate.  He also points out administrative errors in the advisory opinion that indicate the advisory official apparently did not proof the document.

   b.  He states the advisory official wrote, in part, "despite meeting the requirement for promotion, being best qualified" [applicant's emphasis] and he does not dispute this statement.  Thus, he accepts the advisory official's opinion and recommendation for promotion.  Therefore, his promotion to LTC is with merit [applicant's emphasis] and he should have been promoted to LTC.

   c.  He states the advisory official's wordy statement concerning his ineligibility for promotion by the FY08 LTC OS PSB is an incorrect falsehood.  He reiterates that an official of Officer Promotions, HRC, responded to his email inquiry stating that "I would have been considered for promotion to LTC by the FY08 LTC Army Board."  He adds, that official "said I was considered for promotion to LTC in FY08."  Whereas, the advisory official incorrectly comments on the applicant's non-selection by the FY09 through FY11 LTC OS PSBs, but not the FY08 board.  He also notes the advisory official's standard statement that he was not selected for promotion for "unknown reasons."

   d.  He provides a summary of his military service as reflected on his ORB, including his civilian education (two Masters Degrees), military training (Command and General Staff College), assignments and overseas deployments, and appointment as a MAJ in the RA.

   e.  Regarding the advisory official's review of his promotion files:

    	(1)  he provides background information and context to the senior rater's rating for the OER covering the period 1 March through 13 November 2006;

    	(2)  he states the OER, covering the period 14 November 2006 through 
17 March 2007, was administratively flawed, required correction, and was delayed in being posted to his records until 16 June 2011.  Thus, it was not part of his promotion file for the FY08, FY09, and FY10 PSBs; therefore, the advisory official's opinion citing it as a reason for his non-selection is flawed.  He also notes that the senior rater for the OER was the same officer who endorsed his appointment in the RA; and

    	(3)  for the OER, covering the period 1 February through 30 September 1988, he offers reasons for the OER being administratively flawed and notes that it was not posted to his records until 2003 (15 years later).  In March 2013, he decided to appeal the OER.  However, information provided by two different Army Review Boards Agency (ARBA) officials advised him that he should not appeal the OER to the Army Board for Correction of Military Records (ABCMR) or incorporate an appeal of the OER into his current application to the ABCMR.

   f.  He notes that both an official in Officer Promotions and the Chief, Officer Promotions Management, HRC, confirmed the promotion selection opportunity rates (referenced by the CSA) were in excess of 100%.  He concludes it means that every MAJ was promoted to LTC at some point during those years.  Thus, he should have been promoted to LTC at some point between FY08 and FY10.

   g.  The enclosures include documents from the applicant's military service records that support his response to the advisory opinion concerning his military service that include, in pertinent part:

* Civilian Education and Military Training:  5 Academic Evaluation Reports, 4 diplomas, and 3 certificates
* Awards:  Army Commendation Medal and Deputy Chief of Staff, G-1, Alumni Award
* Assignments and Duty Performance:  4 OERs (for periods discussed above); Justification Sheet, undated, signed by Colonel (COL) Scotty D. G--- for OER with Thru Date 28 February 2006; memorandum of support, dated 18 June 2013, signed by COL John S---; and an Official Military Personnel File Document List 
* U.S. Total Army Personnel Command, St. Louis, MO, Orders
A-11-004377, dated 20 November 1999, and Orders A-11-004377A01, dated 16 April 2002, that ordered the applicant to active duty on 
6 December 1999 with additional instructions that his individual active duty tour was to end on or about 5 December 2005
* U.S. Infantry Center, Fort Benning, GA, Orders 262-2200, dated 
19 September 1999, that released the applicant from active duty on
5 December 2002, and Orders 344-2239, dated 10 December 2002, that revoked the order

14.  A review of the applicant's records failed to reveal evidence that he appealed any of the three OERs referred to in the advisory opinion.

15.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis
for the Army's Evaluation Reporting System.  Chapter 4 (Evaluation Report Redress Program), section III (Evaluation Appeals), paragraph 4-7, (Policies), provides that an evaluation report accepted for inclusion in the official record of a rated Soldier's Army Military Human Resource Records (AMHRR) is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating officials at the time of preparation

16.  Army Regulation 600-8-104 (AMHRR Management), paragraph 4-9, provides rules for administering officer pre-board processing.  This paragraph provides that officers in the zone of consideration will review and update their ORB; all current, available admissible personal information will be submitted to the AMHRR; and that these officers are responsible for maintaining and submitting current information to the PSB.

17.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.

   a.  Paragraph 1-10 (Promotion eligibility), subparagraph e, provides categories of officers that are not eligible for consideration by a promotion selection board that includes "commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the board convenes.

   b.  Chapter 7 (SSB), paragraph 7-3 (Cases not considered), provides, in part, that an officer will not be considered or reconsidered for promotion by an SSB when the following occurs:  an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or AMHRR.  (The ORB is a summary document of information generally available elsewhere in the officer's record.)  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 contends his records should be reconsidered for promotion to LTC/O-5 by SSBs under the FY08 through FY12 LTC PSB criteria, respectively, because he was selected for appointment as a RA officer in 2007, the selection opportunity for promotion to LTC from 2001 through 2011 exceeded 100% and, therefore, he should have been selected for promotion.

2.  The applicant's selection for appointment in the RA in the rank of MAJ is acknowledged.  However, an appointment in the RA is not the equivalent of being selected for promotion to the next higher grade.  Thus, it does not offer evidence of the applicant demonstrating the potential to serve in the next higher grade.

3.  The evidence of record shows, in March 2013, the applicant posed two general questions to an Officer Promotions official concerning his consideration by FY08 promotion boards.  In both instances, the official responded with the qualifying answer would have (emphasis added) considered him.  The official did not indicate the applicant was (emphasis added) considered, as the applicant asserts.  The response suggests the official offered a response that was general in nature (e.g., based on zones of consideration) rather than one based on a review of the applicant's records to determine if he had met all of the specific promotion board eligibility criteria for consideration by a board five years earlier.

   a.  In any event, the governing Army regulation shows that commissioned officers with less than one year of continuous active duty (since their most recent placement on the ADL) before the board convenes are not eligible for consideration by a promotion selection board.

   b.  The applicant last entered active duty on 26 March 2007.  Thus, he was not eligible for the FY08 OS PSB board because he had less than 1 year of continuous active duty when the board convened on 2 February 2008.

   c.  Therefore, the available evidence does not support the applicant's contention that he was eligible for consideration by the FY08 OS PSB.
   
4.  Records show the applicant was notified that the FY10 LTC OS PSB considered him for promotion; however, he was not among those selected for promotion.  It also shows he was informed that a selection board was subsequently convened to consider twice non-selected MAJs for continuation on active duty.  Thus, the evidence of record supports the fact that the applicant was considered by the FY09 and FY10 PSBs (i.e., and not the FY08 PSB).

5.  The evidence of record shows the Army Times article and the Chief, Officer Promotions Management, both provided an explanation of the formula for arriving at the overall promotion selection opportunity rate.  In addition, the advisory official provided an example that demonstrated the formula, which clearly shows that not all officers in the primary zone of consideration may be selected for promotion.  Nonetheless, the selection opportunity (emphasis added) for promotion for those officers could be 100% (or more) because some officers may be selected from either below or above the zone in lieu of officers in the primary zone.  During the period under review and based on the available evidence, it appears the applicant's case is evidence of the explanation and example given by the advisory official.
6.  The evidence of record shows the Chief, Officer Promotions Management, noted that the promotion boards were selecting those "Best Qualified" for promotion.  He opined that three OERs in the applicant's AMHRR show ratings of less than "Best Qualified" and may have had an impact on his non-selection.

   a.  The applicant provided evidence that the OER with a "Thru Date" of 
17 March 2007 was not posted to his records until 16 June 2011.   Thus, it was not considered by the PSBs prior to FY11 and this indicates a flaw in the advisory official's opinion.

   b.  The applicant asserts the OER was administratively flawed.  However, he offers no reason why he did not fulfill his responsibility by submitting current information (i.e., about the missing OER) to the boards for the FY09 and FY10 PSBs to consider.

   c.  The applicant's argument that the advisory official's opinion is flawed is artful, but also disingenuous.  As a field grade officer, the applicant certainly must have realized the potential impact the OER would have on his selection/non-selection for promotion.  On the other hand, the absence of a performance rating from his records from such a recent period (and immediately following a less than "Best Qualified" rating) also bears consideration as to its potential impact on the board.  In any event, based on the evidence, the absence of the OER from the applicant's board file during that period is noteworthy.

7.  The evidence of record shows that an evaluation report accepted for inclusion in the official file of a rated officer's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  There is no evidence of record that shows the applicant submitted an appeal for any of the three OERs in question.  

8.  The governing regulation provides that an officer will not be 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 ORB or AMHRR.  In this regard, there is no evidence that supports the applicant's reconsideration for promotion by an SSB.  Moreover, the evidence of record does not support the applicant's contention that he should have been selected for promotion to LTC based on the selection opportunity rates for LTC during the period under review.

9.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130005812



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ABCMR Record of Proceedings (cont)                                         AR20130005812



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