BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130011865 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous request for promotion to major (MAJ) in the Indiana Army National Guard (INARNG) with a subsequent promotion to lieutenant colonel (LTC) and possible promotion to colonel (COL).

2.  The applicant states:

   a.  His current officer evaluation reports (OER) from his unit and Master's of Science degree which were integral to support his promotability were not included in the promotion packet due to administrative oversight.  Additionally, during that timeframe, the promotion rates from captain (CPT) to MAJ and then to LTC were 108 percent (%) and 100%, respectively.  An administrative error cost him, an outstanding aviation and military intelligence officer, his career, continued service to the country, ultimate promotion to LTC, and military retirement. 

   b.  He has since learned that the DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) should not have gone to the Army Correction Board in Virginia, but to the Chief, Office of Promotions, St. Louis, MO.

   c.  He believes contrary to the advisory opinion that according to Army Regulation 135-155 (ARNG and U.S. Army Reserve (USAR) - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19, there was a material error in the way that his file was handled by the INARNG and/or material information was omitted while he was at the Warfighter Exercise, e.g., completeness of the file submitted, inclusion of a Master's degree, an in-process PhD,  and/or inclusions of supporting documents to include OERs to support superior performance.

   d.  The promotion board did not have knowledge that he had indeed transitioned.  His first board was in 2000, his home of record was Georgia, and the ARNG had no vacancies.   He is submitting copies of his OERs (all 1 and 2 blocks).  These would indicate that superior performance was demonstrated by those who were placed in direct supervision of his work in multiple locations and multiple positions.

   e.  He understands the competitive nature of the promotion system which is why he worked so hard as he did in preparing himself for promotion and continued service.  Attention should be given to several sources which note that at the time he was being considered for MAJ the promotion rates were at a record high of 108% and then subsequently promotion rates to LTC were 100% in his peer group.  The advisory opinion also stated that he was educationally qualified which tends to support the point that the board at the time didn't know he was in an S2/S3 position readying for a Kosovo rotation in an additional position.

   f.  The Master's thesis on promotion probability which would have highly qualified him for promotion was not mentioned.  He is also submitting letters of recommendation and references which are written 12 years after the fact by supervisors with whom he had or still has direct responsibility to.  A person would have to have had a superior work ethic and demonstrated potential for these individuals to remember him and write such strong letters of recommendation for continued service.

   g.  The West Virginia (WV) ARNG (WVARNG) had gone through great lengths to get him into their unit.  He thinks this speaks to the quality that they saw in him and his potential, but also the length that he was going to find a unit.  His home unit of North Carolina had no vacancies, Georgia had no vacancies, and a 7-hour drive to West Virginia found him a potential home unit in which he would enjoy continuing to serve with complete commitment from their senior staff if his current non-select status was resolved.

   h.  He had always dreamed of continuing to serve his country until retirement. It has taken these last several years to learn how to investigate and inquire on how to potentially correct this situation.  He will never get back the camaraderie, service, lost schools (Ranger), or memories since he was asked to discontinue service in 2001.  He is willing to continue, retake, or be enrolled in any Master's in Education Leadership that the Board and Army regulations would require.
3.  The applicant provides copies of the following:

* five OERs (1990-1991, 1992, 1992-1993, 1993-1994, and 2000-2001)
* 1991 Service School Academic Evaluation Report
* 1997 Student Transcript
* Résumé
* Master's thesis
* 2000 Academic Transcript
* 2006 Los Angeles Times – Army's Rising Promotion Rate Called Ominous article
* 2006 Congressional Research Service Report for Congress – Army Officer Shortages:  Background and Issues for Congress
* 2010 The Army's Growing Pains Article
* 2010 New G-1:  Restoring balance a priority article
* three Letters of Recommendation and references
* email correspondence to the WVARNG pertaining to the progress of his promotion packet
* 2012 U.S. Army Human Resources Command (HRC) advisory opinion
* Army Regulation 135-155, paragraph 3-19
* AR20110002949 Record of Proceedings (ROP)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120015694, on 5 March 2013.

2.  The applicant provided copies of his résumé; Master's thesis; 2006 Los Angeles Times – Army's Rising Promotion Rate Called Ominous article; 2006 Congressional Research Service Report for Congress – Army Officer Shortages: Background and Issues for Congress; 2010 The Army's Growing Pains article; 2010 New G-1:  Restoring balance a priority article; three Letters of Recommendation and references; Army Regulation 135-155, paragraph 3-19; and AR20100020949 Record of Proceedings.  This is new evidence and will be considered by the Board.

3.  The applicant was appointed in the INARNG, as a second lieutenant, and entered active duty on 9 March 1989.  He was promoted to CPT on 1 July 1993.  He received multiple awards and was assessed as "Always Exceeded Requirements" and "Promote Ahead of Contemporaries" on his ratings.
4.  He was honorably released from active duty on 30 June 1994 and was transferred to the USAR   He was appointed in the INARNG on 7 December 2000. 

5.  He was considered and not selection for promotion to MAJ by the 2000 and 2001 Reserve Components Selection Boards.  The HRC notification advised him that as a result of his second non-selection he was required to be discharged no later than 1 January 2002.

6.  On 14 August 2001, the INARNG published orders honorably discharging him by reason of being a two-time non-selection for promotion.

7.  He provided copies of the following:

   a.  His Master's thesis which examined the fiscal years (FY) 1990 to 1992 LTC promotion selection board results to identify and rank-order predictors associated with selection and non-selection of armor MAJs for promotion to LTC.

   b.  A Los Angeles Times – Army's Rising Promotion Rate Called Ominous article, dated 30 January 2006, which referenced the Army's promotion of 97% of all eligible captains to the rank of MAJ, which was up from a historical average of 70% to 80%, and the promotion of 86% of all MAJs to the rank of LTC in 2005, which was up from the historical average of 65% to 75%.

   c.  A Congressional Research Service Report for Congress – Army Officer Shortages:  Background and Issues for Congress, dated 5 July 2006, which summarized the Army's enlisted recruiting shortfalls in 2005 and current projection of officer shortages in FYs 2007 through 2013.

   d.  A New G-1:  Restoring balance a priority article, dated 19 April 2010, which referenced that managing officer and enlisted promotions were just some of the challenges facing the Army's new personnel chief.

   e.  The Army's Growing Pains article, updated on 28 December 2010, which referenced the Army's first substantial and sustained growth spurt since 1973 and its race between experience and exhaustion, between adding Soldiers and losing them, and between increasing the force and wearing it out.  

   f.  Three Letters of Recommendation, dated September and October 2012, wherein the individuals attested to the applicant being an outstanding officer and Soldier, possessing the abilities to do an exceptional job no matter what the assignment, and always displaying great intelligence and maturity often far above his peers.  One individual strongly recommended the applicant for an aviation position as either a warrant or commissioned officer in the WVARNG.  

   g.  AR20110002949 ROP, dated 1 March 2011, which shows the Board recommended granting the individual concerned a military education waiver and promotion reconsideration by a special selection board (SSB) for promotion to LTC, which was a supplemental to an earlier case and in which the Board corrected that applicant’s records to show he was granted a military education waiver.

8.  Army Regulation 135-155 sets the policies used for selecting and promoting commissioned officers of the ANRG and USAR.  The regulation states:

   a.  Mandatory promotion boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military and civilian schooling.

   b.  Promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  An SSB will not be used when an administrative error or immaterial, of the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the official military personnel file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was twice considered and twice not selected for promotion MAJ.  As required by law, he was discharged on 14 August 2001.  The reasons for his non-selections are unknown because promotion boards are not required to divulge unless due to non-completion of the required education.  

2.  There is no evidence and he did not provide sufficient evidence showing he was unjustly or erroneously not selected for promotion to MAJ and his non-selections were unjust or inequitable.  His records did not contain material error when reviewed by the promotion boards, which does not mandate promotion reconsideration.  In this regard, it is not disputed that he may have a competitive record; however, as shown in this case, promotion is not automatic based on qualifications alone but includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade, and the needs of the service.

3.  With respect to AR20110002949, cases before the Board are considered on their own merit.  The ROP he submitted shows the individual concerned was twice non-selected for promotion to MAJ, discharged, enlisted in the ARNG, and retired.  It appears he was considered and selected for promotion to MAJ by an SSB and promoted with an adjusted date of rank.  The Board granted him an education waiver as a result of him not being promoted to MAJ in a timely manner which thus disadvantaged him in regard to completing the required military education for promotion to LTC.

4.  ARNG and USAR officers who are discharged, then selected by an SSB, and subsequently returned to an active Reserve status, are still required to meet the educational requirements for promotion to the next higher grade.  An education waiver is one way of affording the officer promotion consideration and possible selection prior to meeting the education requirements.

5.  With respect to his subsequent promotions to LTC and COL, he must first be promoted to MAJ and meet all the eligibility criteria for that promotion, then selected for promotion to LTC and COL.

6.  Therefore, there is an insufficiently evidentiary basis for granting him the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  _X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 








are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120015694, dated 5 March 2013.




      _______ _  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)                                         AR20130011865





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ABCMR Record of Proceedings (cont)                                         AR20130011865



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