BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130009665 


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 his records be considered for promotion to colonel (COL) by a special selection board (SSB). 

2.  The applicant states:

* He was not selected for promotion to COL by the July 2012 COL board due to what he believes was a material error
* There were several errors in his Officer Record Brief (ORB), including the critical omission of an entry of his service as a Staff Judge Advocate (SJA)
* He was advised to certify his record in "My Board File" thinking he could still make updates to his file after certification

3.  The applicant provides:

* Email exchange with what appears to be his assignment officer
* ORB, dated 13 July 2012
* ORB, dated 6 July 2012
* Denial of SSB by the U.S. Army Human Resources Command (HRC)
* Fiscal Year 2012 (FY) Promotion List for COL, Judge Advocate General's Corps (JAGC) Zones of Consideration
* Promotion board membership and memorandum of instruction
* List of selectees



CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 18 May 1991.  He was then appointed as a JAGC Reserve officer and entered active duty on 30 September 1994. 

2.  He served in a variety of stateside or overseas assignments and he was promoted to lieutenant colonel (LTC) on 1 July 2007. 

3.  MILPER Message Number 12-093, dated 12 March 2012, annnounced the policy, criteria, and zones of consideration for the FY12 COL JAGC Zones of Consideration.  The MILPER Message stated:

	a.  The selection board would convene on 17 July 2012 to consider eligible JAGC LTCs on the active duty list for promotion to COL.  All officers in the zones of consideration may, if desired, submit correspondence to the President of the Board.  

	b.  The promotion board will utilize the My Board File (MBF).  MBF is a secure web-based application with Army Knowledge on Line sign-on and authentication to allow officers in the zones of consideration to review and certify their entire board file.  MBF is comprised of files from the performance section of the official military personnel file (OMPF), Department of the Army official photograph (DAPMIS), officer record brief (TOPMIS), and documents from the performance section of the OMPF.   If there is an error, the officer must first correct those items in their OMPF, DAPMIS, or TOMPIS, as applicable, in order for the MBF to be updated. 

	c.  Eligible officers may access, thoroughly review, and certify their MBF.  MBF opens on 18 May 2012 and closes on 12 July 2012.  After reviewing the file, the officer must select one of three options (1) I have not viewed the documents; (2) I certify that the information in my Board File is correct and compete to the best of my knowledge; and (3), I have reviewed the information provided in my Board File and I will take action and submit the following corrections or changes to my file.   

4.  He was considered by the FY12 COL, JAGC Department of the Army Promotion Selection Board, which convened on 17-18 July 2012, but he was not selected for promotion.  

5.  On 5 December 2012, he submitted to HRC a request for reconsideration of his records by an SSB.  He argued that the ORB seen by the promotion board did not contain any updates, particularly his service as an SJA.  HRC denied his request since an incorrect ORB is not grounds for an SSB. 

6.  An advisory opinion was obtained from HRC on 3 July 2013 in the processing of this case.  The advisory official recommended disapproval of the applicant's request.  He stated:  

	a.  Based on review of the information provided, [Applicant's] request for reconsideration of promotion by a Special Selection Board (SSB) cannot be approved.  Army Regulation 600-8-29 (Officer Promotions), paragraph 7-3 prohibits SSB approval for administrative errors on the ORB; this along with Department of Defense Instruction (DODI) 1320.11, specifies that an individual will not be reconsidered if by maintaining reasonably careful records and in exercising reasonable diligence, they could have discovered and taken steps to correct that error.

	b.  All promotion selection board Military Personnel (MILPER) Message announcements (be it for Active or Reserve Component) remind and afford all Officers the opportunity to view and correct any deficiencies on the ORB or within the official military personnel file (now called the Army Military Human Resource Record) before any promotion 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; failure to do so does not constitute material unfairness or a material error.

	c.  The decision to deny [Applicant's] request for an SSB by an HRC official was not arbitrary, capricious, or erratic, nor was it in violation of Army Regulation 600-8-29, DODI 1320.11 or any regulatory guidance or instructions associated with Special or Promotion Selection Boards.

7.  He provides email exchanges between himself and a board officer.  The board officer corresponded with the applicant on 28 March 2012 regarding updating his ORB.  The applicant responded on 5 and 15 June 2012 with an acknowledgement of receiving the email.  His last email is dated 13 July 2012, after the MBF had closed, wherein he stated that he had signed in to Fort Hood, First Army Division West, and he would like his ORB updated.  

8.  On 22 July 2013, the applicant submitted a rebuttal to the advisory opinion.  He stated:

	a.  Title 19, U.S. Code, section 9628 states in pertinent part, "lf the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene a special selection board under this subsection to determine whether that person should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine that ... the board did not have before it for its consideration material information."

	b.  The standard of review set forth in the statute is clear and unambiguous - material unfairness brought about by the selection board's inability to consider material information.  According to HRC, an SSB cannot be convened based upon an error in an ORB.  Accordingly, HRC refused to even consider the individual facts and circumstances of his case.  In other words, the Army refused to even review his arguments as to why the error at issue was material and why the actions he took to prevent the error were reasonable because the error involved an omission in his ORB.  He disagrees for two reasons. First, he believes there are situations when an error in an ORB may constitute a "material" error.  Second, he believes Army Regulation 600-8-29, paragraphs 7-2 and 7-3, acknowledge such a possibility and, contrary to the HRC Advisory Opinion, do not "prohibit SSB approval for administrative errors on the ORB."  By failing to even consider the underlying arguments in his request, HRC's initial denial and subsequent Advisory Opinion (authored by the very same individual who initially denied the request) are arbitrary and capricious.

	c.  The error at issue in his case is the fact that his promotion file did not contain any mention of his duty position at the time the board met, namely, as the Staff Judge Advocate for First Army Division West.  This information would only have been located in one place in his promotion file - the Officer Record Brief.

	d.  As he explained in his initial request for promotion reconsideration, an SJA position in the U.S. Army JAGC is the functional equivalent of a Key and Developmental (KD) position for officers in other branches.  The inability of the board to consider this information constituted material error for three reasons: First, selection of an LTC to serve as an SJA is a clear indication of the confidence the JAGC leadership has in an officer's abilities, judgment, leadership, and potential to serve in positions of increased responsibility - the specific selection criteria listed in the promotion board's Memorandum of Instruction.  Second, the absence of any reference in his file of his selection to serve as an SJA created an apparent discrepancy with specific language in his last four Officer Evaluation Reports (OERs).  Third, as the most junior member in the promotion zone, it was all the more important that his file accurately reflected his true assignment history.

	e.  His initial request for reconsideration also detailed how, through the exercise of reasonable diligence, he discovered and attempted to correct the errors in his ORB.  In a cruel twist of logic, HRC refuses to even entertain his arguments, while at the same time justifying its refusal on the grounds that "an individual will not be reconsidered if by maintaining reasonably careful records and in exercising reasonable diligence, they could have discovered and taken steps to correct that error."  Unfortunately, he is caught in a textbook example of a catch-22 ... as a prerequisite for HRC to consider his request, he must show that his efforts were reasonable and diligent; yet, HRC will not even entertain his explanation because the "material error" at issue involves the omission of information in his ORB.  

9.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Chapter 7 provides for SSBs:

	a.  Paragraph 7-2 states the SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army (HQDA) discovers one or more of the following:  

		(1)  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

		(3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

	b.  Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs (1) the officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade.  The officer will be considered by the next regularly scheduled selection board; (2) an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. 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 OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them; (3) letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s OMPF; (4) the consideration in question involved an officer below the promotion zone; (5) the promotion selection board did not see an official photograph; and/or the board did not consider correspondence to the board president that was delivered to HRC after the cutoff date for such correspondence established in the promotion board zone of consideration message.

DISCUSSION AND CONCLUSIONS:

1.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known that updating his ORB was the first step in a process that ensures members of a promotion selection board consider a complete record during their deliberation.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones, are widely published in official, quasi-official, and unofficial publications and, in official communications.

2.  Additionally, MILPER Messages announced the convening date of the 2012 COL JAGC board with specific instructions for eligible officers to ensure the officer’s record was complete and met the requirements.  Failure to comply with the instructions in the MILPER Message is viewed as lack of due diligence on the officer's part.  

3.  Although the applicant communicated with an officer regarding an update to his ORB, his last email is dated 13 July 2012.  He stated that he had signed in to First Army Division West at Fort Hood and he wanted to update his ORB despite the fact that he knew his MBF closed on 12 July 2012.  Additionally, documents in his official record indicate he was at Fort Hood prior to the MBF closing and could have sought correction to his ORB in a more timely fashion.

4.  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 before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.  More importantly, the applicant's argument that his ORB's failure to include his most recent assignment as an SJA was material error is speculative at best.  While promotions recognize potential for service in higher grades and at increased levels of responsibility, they are based on performance.  The notion that he would have been promoted if only the selection board had known he had been an SJA for less than a week strains credulity.

5.  To the extent that there was error in the applicant's ORB with respect to the absence of an entry reflecting his assignment as an SJA, the error could have been avoided had the applicant had the change made immediately upon signing in at Fort Hood.  Further, even if the omission was due to Government error, it was not a material error and it did not prejudice the applicant.  The applicant does not meet the criteria for an SSB.  Therefore, he is not entitled to one.

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)                                         AR20130009665





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ABCMR Record of Proceedings (cont)                                         AR20130009665



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