BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130007901 


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 lieutenant colonel (LTC)/O5 by a Special Selection Board (SSB) under the Fiscal Year 2012 (FY2012) LTC Judge Advocate General's Corps (JAGC) Promotion Selection Board (PSB) criteria. 

2.  The applicant states that he requested an SSB from the U.S. Army Human Resources Command (HRC) and he was denied.  His request for an SSB was based on the following four administrative issues:

	a.  First, the instructions for the FY2012 PSB did not properly identify Acquisition Law Specialty (ALS) members as required.  He contends unfair and improper instructions were provided to the FY2012 PSB.  Accordingly, the Army both violated a statutory requirement and did not follow its own prescribed procedures, resulting in an administrative irregularity and entitling him to reconsideration as the only ALS member before the FY2012 PSB.

		(1)  Contrary to the requirement in Title 10, U.S. Code, section 615(b)(4), the instructions for the FY2012 PSB, dated 3 July 2012, did not include "information or guidelines relating to the needs of the armed force concerned for officers having particular skills...."

		(2)  Likewise, contrary to paragraph 9-1 of JAGC Publication 1-1 (Personnel and Activity Directory - Personnel Policies), the guidance provided to the FY2012 PSB members did not include instructions that "the Army's goal is that ALS attorneys...have a similar opportunity for promotion to each grade as other JAGC officers."

		(3)  Furthermore, contrary to Appendix H-4(c)(1) of Department of the Army Memorandum (DA Memo) 600-2 (Policies and Procedures for Active-Duty List Officer Selection Boards), the instructions to the FY2012 PSB members did not identify who volunteered twice for assignment to ALS positions.  The letter noting his membership in the ALS does not indicate that he has volunteered three times and there is no other indication of his status.

	b.  Second, the instructions for the FY2012 PSB did not provide guidance and promotion evaluation criteria for ALS members.  Accordingly, the board instructions failed to follow the administrative requirements of JAGC Publication 1-1 and DA Memo 600-2, entitling him to reconsideration.

		(1)  By telling the FY2012 PSB members that, "DA Memo 600-2, dated 25 September 2006, AND/OR (emphasis added) Department of Defense Instruction (DODI) 1320.14 (Commissioned Officer Promotion Program Procedures), dated 24 September 1996, provide everything from administrative procedures to the criteria for selection," the board instructions provided an option of which regulation to use as a reference.  The DODI, however, contains none of the DA Memo's guidance and emphasis concerning equal opportunities and considerations to be afforded contract law specialists and members of the ALS.

		(2)  An FY2012 PSB member who only referred to the DODI, as permitted by the board instructions, would have entirely missed the DA Memo's guidance that, "JAGC officers with repetitive specialized assignments to the areas of law noted above will be evaluated and judged for promotion purposes by this board in a manner comparable to all officers under consideration.  Therefore, the type of job held will not carry undue weight, and the board will focus on the officer's performance of assigned duties...  The previous paragraph's discussion of the successive assignment pattern for specialists is particularly true of the complex and sensitive field of acquisition law."

	c.  Third, his board file reflects an incorrect "Service Start Date" and dates of rank (DOR) for his promotions to first lieutenant/O-2 and captain/O-3.  Accordingly, he is entitled to reconsideration because the board file and his Officer Record Brief (ORB) incorrectly reflect this information in contravention of Army and DOD Regulations such as Army Regulation 623-3 (Evaluation Reporting System), DA Pamphlet 640-1 (Officer Guide to the ORB), and DOD Financial Management Regulations.

		(1)  His promotion board file lists his "Service Start Date" as 2006.  That date creates an immediate misperception in the minds of the board members that he has only been in the military since 2006 when, in fact, he joined the Army in 2005 and has an active service record dating from 1993.  HRC has failed to fix his start date even after he brought it to their attention.  Even if turning to his ORB, the promotion board would get the impression that he began his career as a major (MAJ) because this, most important document, provides no dates of rank for his promotions to first lieutenant/O-2 and captain/O-3.  The evaluations and other information in the file cannot overcome this erroneous first impression. 

		(2)  The deleterious effect of these omissions is evidenced by how in the listing of "AZ (above zone) and PZ (promotion zone) JAGCs Competitive Category MAJs Considered/Recommended for Promotion," no officer with blanks in the O-3 and O-2 dates of rank fields were selected in FY2012 or FY2011.

	d.  Fourth, the ORB reviewed by the board contained errors that he had noted and attempted to correct prior to the board file closing, but the changes did not carry through to the final board file.

		(1)  The ORB that he reviewed and certified prior to the board reflected two Meritorious Service Medals (MSM); however, the file provided to him after the board shows only one MSM.

		(2)  The Procurement Program Number (PPN) of "X2" on his ORB is incorrect and should be "H9" reflecting his service transfer from the U.S. Coast Guard (USCG) pursuant to DA Pamphlet 601-110 (Identification of Commissioned and Warrant Officer Personnel by Army PPN Codes).

3.  The applicant provides the following:

* E-mail, Subject:  SSB Request, dated 30 November 2011
* E-mail, Subject:  SSB Request, dated 6 December 2012
* FY2011 PSB Instructions
* FY2012 PSB Instructions
* an extract from JAGC Publication 1-1, 2010-2011
* DA Memo 600-2
* DODI 1320.14
* his FY2012 Military Board File

CONSIDERATION OF EVIDENCE:

1.  After a period of service as a commissioned officer in the USCG, the applicant was appointed as a Reserve Commissioned Officer of the Army in the rank/grade of MAJ/O-4.  HRC Orders A-10-591921, dated 11 October 2005, show he was ordered to active duty from the U.S. Army Reserve (USAR) in the Reserve grade of MAJ in the JAG Corps with a reporting date of 14 October 2005.  These orders also show that his DOR was to be determined in accordance with pertinent regulation.  Based upon his prior commissioned officer service in the USCG, his adjusted date of rank to MAJ was established as 1 June 2004.

2.  The applicant was considered for promotion to LTC by the FY2011 PSB, but not selected.  The board recessed on 12 August 2011.  The promotion list results of the FY2011 PSB show he was considered in the Promotion Zone (PZ) category from which 55 officers were considered and 42 were selected, resulting in a 76.4 percent selection rate.  The president of the board was a brigadier general (BG) and the board members were five COLs from a variety of branches:
two JAGC, one Adjutant General Corps, one Infantry, and one Logistician.

3.  He requested reconsideration for promotion to LTC by an SSB under the FY2011 criteria.  HRC considered the applicant's contentions and evidence and also reviewed his ORB and board file.  On 30 November 2011, an HRC representative informed him that it had been determined that he did not fulfill the prerequisites for an SSB.  Among other things, the applicant was advised that:

	a.  The service start year of 2006 shown in his board file was actually a "Cohort Year Group" and accurately reflected "FY 2006," which included his date of appointment of 14 October 2005.

	b.  Although his ORB, dated 28 November 2011, still reflected only one MSM, as the applicant stated the second MSM was reflected in his Military Board File and therefore was visible to the board.

	c.  In accordance with Army Regulation 600-8-29 (Officer Promotions), paragraph 7-3, "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 OMPF (Official Military Personnel File, now known as Army Military Human Resource Record (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."  The applicant had communicated with the board and could have included any data he deemed necessary to inform the board of any discrepancies in his record at that time.

	d.  The decision to recommend an officer for promotion is based on the selection board's collective judgment as to the relative merit of an officer's overall record when compared to the records of other officers being considered and that a nonselection did not mean that he is not a quality officer and any opinions given from others were speculative in nature; as they did not vote his record.

4.  The applicant was considered for promotion to LTC by the FY2012 PSB, but not selected for the second time.  The board recessed on 8 August 2012.  The promotion list results of the FY2012 PSB show he was considered in the AZ category from which 54 officers were considered and 3 were selected, resulting in a 5.6 percent selection rate.  This list further shows the applicant was recommended for selective continuation.

5.  The applicant requested reconsideration for promotion to LTC by an SSB under the FY2012 criteria.  HRC considered the applicant's contentions and evidence and also reviewed his ORB and board file.  On 6 December 2012, an HRC representative informed him that it had been determined he did not fulfill the prerequisites for an SSB.  Among other things, the applicant was advised that:

	a.  Promotion reconsideration is authorized under Title 10, U.S. Code, and is only approved for non-selected officers whose records contained a material error as being of such a nature that, in the judgment of the reviewing official (or body), had it been corrected at the time the individual was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance the individual would have been selected for promotion.

	b.  A review of his board file shows a correct Service Start year of 2006 which is reflected with his Basic Date of Appointment of 14 October 2005 (and his date of Entry into Active Duty), which was in "FY2006."

	c.  Although his ORB, dated 28 November 2011, still reflected only one MSM, as the applicant stated, the second MSM was reflected in his Military Board File and therefore was visible to the board.

	d.  The ORB is populated by information contained in his AMHRR and as such is only a summary document which may not always be correct when it comes to reflection of education or awards.  Board members can use the board file to verify awards and education, such as in his case where both MSM award documents were in his board file.  An ORB is never used to verify awards or military and civilian education because of this.


	e.  HRC cannot grant an SSB based on how the board may or may not interpret its instructions, or the lack of those instructions.  There is no record of why each board member voted the way they did or how they interpreted their instructions or what guidelines they choose to follow.  An SSB is based on documented material errors that exist at the time a board file was voted, and his board file as it stands did not contain a material error.  It was for this reason that his request for an SSB was denied.

6.  An advisory opinion was rendered by the Chief, Officer Promotions and Special Actions, HRC on 3 June 2013.  The advisory official stated that:

	a.  Any grievance or concerns that the applicant may have with any Promotion Board guidance or instructions must be addressed directly to the Director, Military Personnel Management (DMPM), Promotion Policy Integrator (DAPE-MPO-S), Deputy Chief of Staff G-1, and the Chief of Staff Army G-1.

	b.  The applicant's request for reconsideration of promotion due to his ORB reflecting one of two MSMs is denied.  Cases not considered include (but are not limited to) requests for reconsideration based on awards below the level of Silver Star that are missing from the officer's AMHRR or errors in the ORB.  All officers are afforded the opportunity to view and correct any deficiencies in the ORB or AMHRR on a continuous basis before a board convenes.  This also allows any officer the option to submit correspondence to the President of the board to address any issues he or she feels is important during consideration and failure to do so does not constitute material unfairness or a material error.

7.  On 7 June 2013, the applicant rendered a rebuttal to the advisory opinion wherein he stated that:

	a.  HRC had only addressed one of the substantive issues in his case and asserted that HRC's ignoring the remaining issues regarding the conduct of the promotion board amounts to a tacit acknowledgment of the merits of his complaint.

		(1)  He attested that rather than addressing the failings highlighted in the case, HRC proffers that he should file a grievance directly through other Army staff elements.  He opined that HRC's position is disingenuous and untenable.  After 2 years of trying to obtain an SSB and having received HRC's responses to the improper administrative procedures that the Promotion Board and HRC have followed, he has not once received any instruction or reference to any procedure for filing a grievance, much less a description of any administrative process providing any opportunity for redress from HRC involving DMPM.

		(2)  DMPM and its alleged responsibilities regarding the failure of a promotion board to follow applicable statutes, regulations, and policies are not once mentioned in any Army regulation, policy, or even the HRC promotion branch's Standing Operating Procedure.  HRC's position amounts to a requirement to follow a process that he could not have discovered through any due diligence, that appears nowhere in any guidance, has no path for obtaining any redress, and if it exists at all, HRC had the chance to tell him but never did.  All of this compounds the unfairness of the process to which he had been subjected.

	b.  As for the MSM, HRC misharacterizes the problem.  The problem was not that he could have corrected the deficiency.  The problem was that the deficiency was not apparent in the first ORB that he reviewed.  Nevertheless, he acknowledges that the MSM was the least offensive and problematic of HRC's and the promotion board's failings in 2012.

	c.  All of the issues raised in his complaint continue to exist, because HRC has not countered or even addressed any of them.  There are no alternative methods for correcting wrongs that have been done; therefore, the applicant requests that the ABCMR completely reject HRC's recommendation as incomplete, insufficient, and irrelevant.

8.  The applicant provided his FY 2012 Promotion Board file which included:

* Department of the Army photograph
* ORB
* Two DA Forms 1059-1 (Civilian Institution Academic Evaluation Report)
* Three DA Forms 1059 (Service School Academic Evaluation Report)
* Five DA Forms 67-9 (Officer Evaluation Report (OER))
* Six CG-5310s (Coast Guard OER)
* Two DA Forms 4980-12 (Army MSM Certificate)
* DA Form 4980-14 (Army Commendation Medal Certificate)
* Coast Guard Achievement Medal Citation
* Three academic transcripts
* a self-authored letter addressed to the President of the FY2012 LTC JAGC PSB
* a memorandum showing he was a member of the ALS Program
* a "My Board File Activity" sheet showing he reviewed and certified his board file on 1 August 2012


9.  The ORB contained in his FY 2012 Promotion Board file shows in:

	a.  Section I (Assignment Information) that he is a JAG officer with the additional skill identifier (ASI) of 3D (Government Contract and Fiscal Law Specialist);

	b.  Section III (Service Data), his:

		(1)  Basic Active Service Date (BASD) as 13 January 1995;

		(2)  Current PPN as X2;

		(3)  Entry on Active Duty Current Tour Date and Basic Date of Appointment as 14 October 2005;

		(4)  Cohort Year Group as FY2006;

		(5)  Permanent Date of Rank to MAJ as 1 June 2004;

	c.  Section VII (Awards and Decorations) that his awards and decorations included one MSM; and

	d.  Section X (Remarks) that he had 130 months of prior service.

10.  The two DA Forms 4980-12 contained in his FY 2012 Promotion Board file show he was awarded two MSMs:

	a.  the first by Permanent Orders 148-009, dated 28 May 2007; and

	b.  the second by Permanent Orders 134-1, dated 14 May 2010.

11.  On 3 July 2012, the Secretary of the Army (SA) rendered a memorandum, Subject:  Instructions for the FY2012, LTC, JAGC, PSB, wherein he provided instructions to the president and board members of the FY2012, LTC, JAGC, PSB.

	a.  The SA informed them, in part, that they had been selected to serve on this board because the Army had confidence in their ability to recognize those Judge Advocates who will make the greatest contribution to the Army in the years ahead.  The objective of the selection process is to meet the leadership, competency, and professionalism and management needs of the JAGC, the Army, and the DOD.  As such, the board members were instructed to select those officers who have best demonstrated leadership, effectiveness, and potential for service at higher levels.

	b.  The SA instructed them to bear in mind the serious nature of board duty and their obligation to ensure these proceedings remain above reproach at all times.  He reminded them that the oath they had taken obliges them to adhere to that oath and to all governing laws, directives, regulations, written administrative instructions regarding board procedures, and these instructions in selecting officers who meet the needs of the Army, as outlined in this memorandum; and that their failure to do so may cause them to be removed from the board.

	c.  The SA provided them the selection objectives and requirements to include the maximum number of officers that could be selected from the different competitive categories based upon their dates of rank to MAJ.  

	d.  The SA stated there are many qualities that he sought in all Army leaders.
Because it is difficult to predict the exact combination of challenges our forces and leaders will be called upon to defeat, we must field versatile land forces capable of dominance across the range of military operations.  Therefore, they should select officers who are capable of leading and running the Army.  He then pointed out some points of reference and general guidance for the board to use as their baseline regarding:  strategic leadership, ability to lead effectively in a complex environment, experience and education, energy and fitness, professional character, warrior ethos and service, desired attributes, ability to lead change, Soldier and family support, team building and leader development, diversity, operational factors, and assignment considerations.

		(1)  The SA emphasized that previously accepted rules and conventions regarding personnel management timelines may no longer apply.  The length of time that an officer spends in a leadership position is not a factor to consider in evaluating the officer's potential for promotion.  View an officer's experience not in terms of one assignment, but as a combination of many assignments and deployments over time.

		(2)  The SA also emphasized that all assignments in the JAGC are important to sustain a trained and ready Army.  The absence of combat experience, or support of deployed forces, for example, should not be the sole basis for non-selection.




	e.  In paragraph 6 (Additional guidance) of the memorandum, the SA stated in:

		(1)  Paragraph 6a, DA Memo 600-2, dated 25 September 2006, and/or DODI 1320.14, dated 24 September 1996, provide administrative procedures, oath for selection board members, general requirements, guidance concerning the conduct of the selection board and disclosure of information, information to be considered or prohibited from consideration, criteria for selection, and information regarding OERs.  Additionally, there is guidance on the factors to consider in determining the professional qualifications and future potential of individual officers.  Prior to beginning board operations, the board president will review the contents of this Memorandum of Instruction (MOI) with all board members present and confirm that they all understand the guidance expressed.  The board will abide by this guidance and will not establish criteria other than those specified in this MOI, DODI 1320.14, and DA Memo 600-2.

		(2)  Paragraph 6c, as board members they would will familiarize themselves with, and have present in the boardroom, the personnel policies contained in DA Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management), dated 1 February 2010, and JAGC Publication 1-1, dated 1 November 2010.  In their duties as a board member they should use JAGC Publication 1-1 and DA Pamphlet 600-3 not as selection specific criteria, but as a guide in their deliberations, keeping in mind the evolving strategic environment, the gravity of their responsibilities, and the broad range of tasks the Army performs.

12.  JAGC Publication 1-1, 2010-2011, Section IX (Acquisition Law Specialty Program) provides in:

	a.  Paragraph 9-1a (General).  In recognition of the breadth and complexity of acquisition law, and of the need for both uniformed and civilian attorneys to maintain expertise in acquisition law, The JAG established the ALS Program in 1985.  The ALS Program is a centrally managed system for identifying, training, and assigning lawyers so that the JAGC can develop and maintain qualified personnel, both military and civilian, with the requisite breadth and depth of acquisition law expertise.

	b.  Paragraph 9e (ALS Promotion Opportunity).  Judge Advocates (JAs) in the ALS Program have equal opportunity with other JAs for promotion and other training programs.  JAs in the ALS are identified to promotion boards which are instructed that the Army's goal is that ALS attorneys, as well as all JAGC officers who specialize, have a similar opportunity for promotion to each grade as other JAGC officers.
13.  The proponent for DA Memo 600-2, dated 25 September 2006, is the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)).
The ASA (M&RA) has the authority to approve exceptions or waivers to this regulation that are consistent with controlling law and regulations.  The ASA (M&RA) may delegate this approval authority, in writing, to a division chief within the proponent agency or its direct reporting unit or field operating agency in the grade of colonel or the civilian equivalent.  Activities may request a waiver to this regulation by providing justification that includes a full analysis of the expected benefits and must include formal review by the activity's senior legal officer.  All waiver requests will be endorsed by the commander or senior leader of the requesting activity and forwarded through higher headquarters to the policy proponent.  Refer to Army Regulation 25–30 (The Army Publishing Program) for specific guidance.  The memorandum provides, in part:

	a.  This memorandum establishes policy and prescribes procedures for Headquarters, Department of the Army (HQDA) warrant, company, and field grade officer selection boards and provides DOD guidance regarding the communication and disclosure of personal information.  Specifically, the policies and procedures in this memorandum apply to HQDA, active duty list company and field grade commissioned officer and warrant officer promotion, command, school, and product/project manager selection boards; selective continuation boards; retention boards; selective early retirement boards (SERBS); reduction in force (RIF) boards; advisory boards; and other boards as directed by the SA or a designee.  Board members, the Secretariat for DA selection boards, and administrative support personnel will use this memorandum.

	b.  Each board member, recorder, and administrative support personnel will take the following oath or affirmation: "I , ______________________, do solemnly swear (or affirm) that I will, without prejudice or partiality, and having in view both the professional qualifications of officers and the requirements of the Army, perform the duties imposed upon me, and that I will not divulge the  proceedings or results thereof pertaining to the selection or nonselection of individual officers except to proper authority."

	c.  The Secretariat for DA selection boards will furnish the board with the names and personnel records of the officers to be considered and will assign a board recorder to provide administrative support to the board.  Questions from board members regarding personnel records, eligibility of officers, and administrative procedures will be directed to the recorder who will obtain clarification or additional information from proper authority.


	d.  Board members, recorders and administrative support personnel will maintain the integrity and independence of the board, and will foster the careful consideration, without prejudice or partiality, of all eligible officers.  DODI 1320.14 provides specific rules governing the conduct of promotion boards (other than warrant officer) and the actions of promotion board personnel.  The SA is the only person who may appear in person to address a promotion board on any matter.  Promotion board members, recorders and administrative support personnel will read and comply with DODI 1320.14.  As a matter of policy, the guidance provided by DODI 1320.14 is made applicable to other boards, and a copy of that directive is provided to all boards.  The following paragraphs govern the conduct of all other centralized selection boards and conform to the provisions of DODI 1320.14.

	e.  As a matter of law, officers recommended for promotion must be "fully qualified" and "best qualified" for promotion.  The board has no numerical constraints on the number of officers it recommends for promotion.  Therefore, for purposes of this board, the terms "best qualified for promotion" and "fully qualified for promotion" are synonymous.  In all cases, the board will satisfy itself that an officer is qualified professionally and morally, has demonstrated integrity, is physically fit, and is capable of performing the duties expected of an officer with his or her career field and skill qualifications in the next higher grade.

		(1)  Each board member will evaluate the entire record of each officer in and above the promotion zone and award a numerical score to assess each officer’s promotion potential and will identify any officer whose conduct or performance merits consideration for involuntary separation.

		(2)  The board will produce a single relative standing list of all officers in and above the promotion zone by merging each board member’s scores.

		(3)  The board will identify officers who are fully qualified and who are not fully qualified for promotion.  Fully qualified officers are those, by definition, whose demonstrated potential unequivocally warrants their promotion to the next higher grade.  The term "not fully qualified" is not pejorative in nature.  An officer who is not fully qualified for promotion may be qualified for duty in his or her current grade and career field.

		(4)  The board will conduct a similar process for eligible officers who are in the below the zone category.

		(5)  On the basis of the maximum selection capability, the board will tentatively identify officers from the integrated relative standing list who are best qualified for promotion.
		(6)  The board will review statistical summaries of skill guidance and determine whether any goals, objectives, or requirements have not been met.

		(7)  If skill guidance selection requirements are specified and have not been met, the board will add fully qualified officers in the appropriate career fields to the tentative selection list to satisfy the requirements.  Continue this process until:  each career field requirement is satisfied; no additional officers fully qualified for promotion in that career field exist in or AZ; and the additional selection capability is exhausted (that is, the board has reached its maximum selection capability).

		(8)  If any skill guidance requirements remain unsatisfied after reaching the maximum selection capability and if officers fully qualified for promotion in the required skill remain in or AZ, the board will displace officers on the tentative selection list who do not fill a selection requirement with fully qualified officers who satisfy a selection requirement.  The board will also displace in reverse standing list order until all requirements are satisfied or until no more officers who are fully qualified for promotion in the required skill remain in or above the promotion zone.

		(9)  At the conclusion of the deliberative process, the board will conduct a formal vote to ensure that no officer is recommended as best qualified for promotion unless he or she receives the recommendation of the majority of the members of the board.  Each board member has an equal vote in this process. The board’s collective judgment is the final determination of an officer’s qualifications to meet the Army's needs.

	f.  Paragraph H-4 (JAGC Personnel Management) of this memorandum provides specific guidance for consideration of JAGC officers.  It begins by stating that JAGC officers receive their commissions from a number of sources, including ROTC, USMA, and OCS and by direct appointment.  The JAGC will not discriminate among its officers on the basis of source of commission.

		(1)  In determining a JAGC officer's potential for service in a higher grade, the board must consider an officer’s proficiency in a given assignment and not be unduly influenced by the diversity of assignments or the level at which the duties are performed.

		(2)  JAGC officers do not serve in traditional command assignments.  A JAGC officer's leadership ability and potential may be reflected in the officer's performance of duty in positions of significant responsibility; for example, supervising subordinates or performing complex, important, or sensitive duties.
		(3)  Although board members may be most familiar with the duties of the judge advocate who is assigned at the Division level, or at the post, camp, and station level, a large number of judge advocates are assigned to HQDA or DOD, as well as HQDA and DOD field operating agencies, where specialists are required in such areas as acquisition law, international law, labor law, criminal law, medical law, environmental law, or claims.  It is vital to the Army that the JAGC have these specialists as well as generalists.  This discussion of the successive assignment pattern for specialists is particularly true of the complex and sensitive field of acquisition law.  The needs of this specialty have caused The JAG to establish a program to identify and manage officers with expertise in this field.  The board will be informed of the names of officers who have volunteered for repetitive assignments in the acquisition law specialty.

14.  DODI 1320.14, dated 24 September 1996, implements policy, and assigns responsibilities and prescribes procedures, for administering the officer promotion program in the DOD.  This instruction applies to the Office of the Secretary of Defense (OSD), the Chairman of the Joint Chiefs of Staff, and the Military Departments.  The selection of commissioned officers for promotion on the Active Duty List or Reserve Active Status List to the grades of captain through major general in the Army, Air Force, and the Marine Corps, and lieutenant through rear admiral in the Navy.  It is DOD policy under DODD 1320.12 that all promotion selection boards are conducted in full compliance with applicable statutes and directives.  The Secretaries of the Military Departments shall, in part:

	a.  Ensure that each person participating in the conduct of a promotion selection board receives a copy and reviews the contents of this Instruction, and reviews the applicable portions of implementing regulations of the Military Department concerned on receipt of notification that he or she has been assigned duties in conjunction with the conduct of a selection board.

	b.  Conduct each year, on a random basis, interviews of board presidents, members, recorders, or the administrative staff assigned to support board deliberations, to assist in ensuring boards are being conducted in accordance with applicable law, regulations, instructions and administrative issuances.  Interviews shall be conducted from among those boards considering officers for promotion to grades O-4 through O-8.  This function may be delegated only to subordinate civilian officials appointed by the President by and with the advice and consent of the Senate.

	c.  Review on an annual basis the content of the administrative briefings provided to promotion selection boards to ensure that they are consistent with and do not alter the substantive guidance provided by the Secretary of the Military Department concerned about the board.  This function may be delegated only to subordinate civilian officials appointed by the President by and with the advice and consent of the Senate.

	d.  On completion of board deliberations, the board president, the board members, and board recorders shall, as a minimum, certify to the Secretary of the Military Department concerned that, to the best of their knowledge, the board complied with this Instruction.

15.  Army Regulation 600-8-29 prescribes policy and procedures to consider, select, and promote commissioned officers of the Army.  

   a.  Paragraph 4-3 states officers are responsible for presenting the most accurate information to the promotion selection board.  Each eligible officer and the representative of the Officer Records Center (OFRC) will audit the ORB.  The OFRC will audit all ORBs with the officer personally unless the officer is not available to audit his or her ORB or the officer's signature cannot be obtained in a timely manner.

   b.  Officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration.  Written memoranda sent to a promotion selection board will be considered if received not later than the date the board convenes.  Any memorandum considered by a promotion board will become a matter of record to be maintained with the records of the board. 

   c.  Paragraph 7-3 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 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. 

16.  DA Pamphlet 601-110 contains PPN codes for the identification of all commissioned and warrant officer personnel entering on active duty, active duty for training, and appointed in the Active Army from other Army components.  Table 2-3 (Miscellaneous Active Army appointments and gains to the Active Army) shows that PPN code H9 indicates appointment of Active Army commissioned officers transferred from the USCG.  Table 2-8 (Commissioned officers voluntarily and involuntarily on active duty, to include Army Medical Department) shows that PPN code X2 indicates voluntarily ordered to active duty during active duty for training from the U.S. Army Reserve/U.S. Army National Guard (active duty less than 4 years)).

17.  The purpose of DA Pamphlet 640-1 is to explain to each active duty Army officer what they should know about the ORB:  what it is, its importance to them, how to correct it, and what each data element describes.  The objective is an officer corps better able to interpret what ORB data represents and better able to identify and correct any errors or omissions on their own ORB.  

a.  The Foreword of this publication informs the individual officer that:  
	"This pamphlet is designed to help you, the active Army officer, understand the data displayed on the Officer Record Brief (ORB).  The ORB is an important tool used in the management of officers.  Therefore, the accuracy of ORB data and our understanding of its meanings is important.  You, as an Army officer, have a key role to play in ensuring your ORB correctly describes you and your accomplishments.  This guide is designed to be an easy to use reference that will answer most of your questions.  Of course, a pamphlet of this nature cannot contain the answer to every possible question.  However, should you need more detailed information, this guide will tell you where to find the answer."

	b.  Paragraph 7 (How to correct your ORB) advises officers as follows:

		(1)  Check carefully, item by item, a current edition of your ORB (the production month is in the upper left heading).  Be sure you understand each item.  Refer to part 11 of this pamphlet for item explanations.  Be alert for both incorrect data and for omissions.  Remember that the ORB reflects the Officer Master File (OMF) as of the production date; newly-reported items will appear on ORBs which are produced after the new data has been posted to the OMF.

		(2)  Errors, omissions, or new changes should be reported promptly to your Personnel Service Center (PSC).  Report changes when they occur; do not "save" your changes for annual audits. 

		(3)  The PSC will, depending upon the data involved, submit a SIDPERS transaction or send a letter to the appropriate HQDA office to update the OMF. 

		(4)  In some cases, you may be asked to provide substantiating documentation not available at your PSC.  Part II explains many of these requirements; in each case, however, your PSC can tell you if you must furnish supporting documentation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant asserts that the Army failed to follow established DOD and Army directives, instructions, and policies because:

	a.  The written instructions for the FY2012 PSB did not properly identify ALS members; did not include information or guidelines relating to the needs of the armed force concerned for officers having particular skills; did not include instructions that "the Army's goal is that ALS attorneys ...have a similar opportunity for promotion to each grade as other JAGC officers."

	b.  By telling the FY2012 PSB members that, "DA Memo 600-2, dated 25 September 2006, "and/or" DODI 1320.14, dated 24 September 1996, provide everything from administrative procedures to the criteria for selection, the board instructions provided an option of which regulation to use as a reference.  He further contends that a board member who chose to rely solely on either the DODI or the DA Memo would not see and/or apply all of the pertinent criteria concerning equal opportunities and considerations to be afforded contract law specialists and members of the ALS.

2.  However, he fails to provide sufficient evidence in support of his assertions.  

3.  The evidence clearly shows that it is DOD policy under DODD 1320.12 that all promotion selection boards are conducted in full compliance with applicable statutes and directives.  As such, the SA is required to ensure that each person participating in the conduct of a promotion selection board receives a copy and reviews the contents of this Instruction, and reviews the applicable portions of implementing regulations of the Military Department concerned on receipt of notification that he or she has been assigned duties in conjunction with the conduct of a selection board.  

4.  As a form of checks and balances and in order to provide quality assurance and ensure equity throughout the promotion system, the SA is also required to conduct random, annual, interviews of board presidents, members, recorders, or the administrative staff assigned to support board deliberations, to assist in ensuring boards are being conducted in accordance with applicable law, regulations, instructions and administrative issuances.  Each year, the SA must also review the content of the administrative briefings provided to promotion selection boards to ensure that they are consistent with and do not alter the substantive guidance provided.  On completion of board deliberations, the board president, the board members, and board recorders shall, as a minimum, certify to the Secretary of the Military Department concerned that, to the best of their knowledge, the board complied with this Instruction.
5.  The SA's instructions to the president and board members of the FY 2012, LTC, JAGC, PSB clearly show he stated that DA Memo 600-2, dated 25 September 2006, and/or DODI 1320.14, dated 24 September 1996, provide administrative procedures, oath for selection board members, general requirements, guidance concerning the conduct of the selection board and disclosure of information, information to be considered or prohibited from consideration, criteria for selection, and information regarding OERs.  Prior to beginning board operations, the board president will review the contents of this MOI with all board members present, and confirm that they all understand the guidance expressed.  The board will abide by this guidance and will not establish criteria other than those specified in this MOI, DODI 1320.14, and DA Memo
600-2.  The SA also stated that as board members, they would will familiarize themselves with, and have present in the boardroom, the personnel policies contained in DA Pamphlet 600-3, dated 1 February 2010, and JAGC Publication 1-1, dated 1 November 2010.  

6.  The required reading for the board president and board members contained all of the information and criteria that the applicant contends was not presented to them in the SA's instruction to the board.  The president of the board was a BG and the five board members were all COLs, to include two from the JAGC, who were vetted and selected by-name from amongst their peers based upon their demonstrated levels of professionalism and character.  As such, it is presumed that they abided by their oaths and complied fully with the instructions to the board.  

7.  In addition to written instructions to the board, oral briefings are presented and conversations occur between board members and administrative support personnel.  The applicant's contention that the board was not specifically informed that he volunteered for ALS duty three times and that there is no other indication of his ALS status is duly noted.  However, there is no way of knowing what verbal guidance was given to the board in addition to the aforementioned written guidance.  Additionally, his ORB clearly shows that he possess ASI "3D" which clearly indicates that he is a Government Contract and Fiscal Law Specialist and each of his OERs clearly show his significant duties and responsibilities.  The importance of ensuring equity for ALS officers is detailed in the required reading and the two JAGC board members were also available for consult on the topic.

8.  In view of the foregoing and contrary to the applicant's contention, the SA's use of the expression "and/or" does not imply that board members could rely solely on EITHER DODI 1320.14 OR DA Memo 600-2 for guidance.  It merely indicates that the aforementioned publications contain information on the numerous different topics, some of which are discussed in both and some that are discussed in one or the other.  Additionally, the requirements for board members to familiarize themselves with ALL of the references and to take an oath confirming that they understand and will comply with all instructions to the board; to include reading and familiarizing themselves with DODI 1320.14, DA Memo 600-2, and JAGC Publication 1-1, renders the applicant's contentions moot.

9.  Again, the president of the board was a BG and the five board members were all COLs, to include two from the JAGC, who were vetted and selected by-name from amongst their peers based upon their demonstrated levels of professionalism and character.  As such, it is presumed that they completed the required reading, abided by their oaths, and complied fully with the instructions to the board.  The applicant's assertions are nothing more than an unfounded attack on the credibility and professionalism of the board president and board members.

10.  As pertains to the applicant's ORB, he was personally responsible for presenting the most accurate information to the promotion selection board.  Policy clearly states that the eligible officer will audit the ORB.  The applicant has provided no evidence nor did he state in his application that he was not afforded the opportunity to review his records prior to the selection board.  Additionally, he was well aware of his right to write a letter to the promotion board's president and call attention to any matter concerning himself that he considered important to their consideration.  He could have addressed each of his concerns about the recognition of his performance and/or assignments in acquisition law and his belief that administrative errors existed on his ORB in writing to the president of the board.  A review of the ORB contained in his FY2012 Promotion Board file only shows award of one MSM in Section VII (Awards and Decorations), but it also shows that his PPN, DOR, Cohort Year Group, and prior service were all properly reflected as follows:

	a.  Section I, that his specialty is properly shown as a JAGC officer who is qualified as a Government Contract and Fiscal Law Specialist;

	b.  Section III, that his BASD is 13 January 1995.  His PPN of "X2" properly shows his current active duty tour began after he was appointed in the USAR and subsequently ordered to active duty from the USAR in the rank/grade of MAJ/O-4 on 14 October 2005.  Since he was appointed and entered active duty in FY2006, he was properly assigned to Cohort Year Group (also referred to in his board file as "Service Start Date") FY2006.  In consideration of his prior service and education, his DOR was adjusted to 1 June 2004.

	c.  Section X, that he had 130 months of prior service.

11.  In view of the foregoing, the applicant's contentions that his ORB gave the board the mistaken impression that he was new to the military and that he was assigned an improper "Service Start Date" are completely unfounded.  As pertains to the missing MSM that was not annotated on his ORB, the two DA Forms 4980-12 contained in his FY2012 Promotion Board file show he was awarded two MSMs and serve to eliminate the omission from his ORB.  He served as an O-2 and O-3 in the USCG, but not in the Army; therefore, there is no requirement to show his DORs for those grades on his ORB.

12.  However, HRC has failed to provide any evidence which shows the FY2012 PSB was provided a list of "officers who have volunteered for repetitive assignments in the acquisition law specialty."  The JAGC has identified a deficiency in the promotion process for acquisition law attorneys.  The remedy was that the PSB would be informed of the names of officers who have volunteered for repetitive assignments in the acquisition law specialty.  It appears that this list was not compiled as required by the regulation.  Because this information is required by regulation, it is material information.  The applicant could not have had prior knowledge that the list would not be provided, nor could he correct the error through reasonable diligence.

13.  In view of the foregoing, the applicant should be reconsidered for promotion to LTC by an SSB under the FY2012 PSB criteria with an appropriate list of "officers who have volunteered for repetitive assignments in the acquisition law specialty."  Reconsideration by an SSB is not authorized based upon conjecture, 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.

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 a recommendation for relief.  As a result, the Board recommends that Department of the Army records of the individual concerned be corrected by:

	a.  submitting the applicant’s records to a duly-constituted SSB along with an appropriate list of "officers who have volunteered for repetitive assignments in the acquisition law specialty" for consideration for promotion to LTC under the under the FY2012 LTC JAG PSB criteria.

	b.  If before the SSB process is completed he is removed from the active duty list”

(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 active duty list, 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 600-8-29 to LTC with the appropriate date of rank, and paying to him any associated back pay and allowances.

   c.  If he has not been removed from the active duty list, in the event that the applicant is selected for promotion his records be further corrected by promoting him to LTC based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

	d.  In the event the applicant is not selected for promotion, he be so notified.



      _______ _   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)                                         AR20130007901





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ABCMR Record of Proceedings (cont)                                         AR20130007901



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