BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130012633 


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, promotion to colonel (COL) in the U.S. Army Reserve (USAR). 

2.  The applicant states he believes he was not selected for promotion to COL due to an error in his Officer Evaluation Report (OER).  The OER states he had missed several days due to illness.  He adds: 

	a.  He is a lawyer for the state attorney general's office, prosecuting sexually violent predators under South Carolina Code.  As part of the process the targets of their legal actions are evaluated by a court-appointed psychologist or psychiatrist, and if the target ever served, the doctor wants to see his military records.  In a recent case, he spoke with the Director of the Naval Board of Correction for Records about one of his pending cases where the records they were seeking were delayed, and he mentioned an inaccuracy in his OER for an Active Duty for Training (ADT) period from 6 April 1992 to 17 April 1992, with the U.S. Army Intelligence and Threat Analysis Center (USAITAC) at the Washington Navy Yard.  The Director at the Naval Board told him it was possible that a mistake had led to him not being selected for promotion to COL, explaining that the selection process from lieutenant colonel (LTC) to COL was so strict that a matter relating to his health could have blocked it.  

	b.  The OER states "A DA Form 67-8-1 was not completed by the Officer due to unexpected illness and attendant absence for the last several days of his duty period."  When he arrived for the annual training (AT) in 1992, an older COL was checking in at the same time.  He had served there before, so that officer assisted him in finding the right building to inprocess at and getting an advance on his pay.  He saw him only a couple of times after that, because he worked in a different office. He was not ill and he completed his AT on time, so the "illness" language didn't apply to him.  When he received his OER in the mail, he called and found out the COL had had a heart attack, or something similar.  He asked about a corrected OER, but didn't pursue it since his ratings were all "1" and he went on to do seven more reserve tours with that unit or one connected with it at the National Security Agency at Fort Meade, the final one in 1998.  He passed all Physical Fitness tests, finished all AT tours on time, and had never had a heart attack in his life.  Twice in the couple of years before his retirement in 1998 he was up for promotion to COL.  Both times he received a letter informing him that while he had not been selected, he had not been "passed over."  He asks if the inaccuracy about his health in that 1992 OER had caused the promotion board to not select him.

3.  The applicant provides his 1992 OER.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born in May 1948.  

3.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 7 June 1970.  He served in a variety of command or staff assignments and he was promoted to LTC on 30 May 1991. 

4.  He was considered by the 1995, 1996, 1997, and 1998 Reserve Components Selection Boards (RCSB) for promotion to COL but he was not selected. 

5.  On 1 June 1998, the U.S. Army Reserve Personnel Center published orders transferring him to the Retired Reserve effective 1 July 1998.  

6.  On 25 March 2008, the U.S. Army Human Resources Command (HRC) published orders placing him on the Retired List in his retired grade of LTC effective 4 May 2008.  

7.  He provides a copy of his Release from Active Duty OER for the rating period 6 April 1992 through 17 April 1992.  His rater rated his performance as "Always Exceeded Requirements" and his Senior Rater rated his potential as 2 (second from the top).  

8.  An advisory opinion was received from HRC on 30 August 2013 in the processing of this case.  An advisory official stated:

	a.  Based on their review of the information provided, HRC cannot affirm if the reason for the applicant's non-selection for promotion was based on the information contained in the OER he received with a Thru date of 17 April 1992.  Any comments or speculations of non-selection are unknown because statutory requirements of Title 10, U.S. Code (USC), section 618, prevent disclosure of board proceedings to anyone outside the promotion board in question. 

	b.  The OER Proponent along with the Appeals Section will verify and determine if the OER in question should be amended, retained, or moved from the performance portion of his Army Human Resource Military Record.  It will also determine if any amendment or removal of the report is a basis for reconsideration by a special selection board (SSB).  In addition, since the applicant is now retired, any approved basis for reconsideration by an SSB can only occur per this Board's directive. 

9.  The applicant was provided with a copy of this advisory opinion but he did not respond within the allotted time. 

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also states that 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 schooling.

11.  Title 10, U.S. Code, section 14513 (Failure of Selection for Promotion: Transfer, Retirement, or Discharge) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

DISCUSSION AND CONCLUSIONS:

1.  The applicant's belief that the OER he provides was the reason for his non-selection for promotion to COL is speculative at best.  By law and regulation, promotion boards do not divulge the reason for an officer's selection or non-selection for promotion.  While OERs are viewed by promotion boards, there are other documents/factors that are considered by the promotion board. 

2.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instructions, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

3.  It is unfortunate that the applicant was not selected for promotion to COL; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion 

boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

4.  Promotion boards do not reveal the basis for selection or non-selection.  This means the statement by the applicant "the inaccuracy about his health in that 1992 OER had caused the promotion board to not select him" is speculative.  Inasmuch as this Board does not have the luxury of reviewing all of the records that were considered by those promotion boards that did not select the applicant it must be presumed that what the boards did was correct.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known. 

5.  Notwithstanding the advisory opinion’s use of the present tense (“…Appeals Section will verify…It will also determine….”), by using due diligence the applicant could have appealed this OER at least by his first passover in 1995.  At that time a clearer determination could have been made as to whether that OER was a factor in his promotion passover.  Considering that the late 1990s was a period of drawdown for the Army, to say at this point in time that the OER was the only reason for his nonselection is indeed speculative.

6.  A non-selected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.  In view of the foregoing evidence, there is insufficient evidence to grant 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 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)                                         AR20130012633





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ABCMR Record of Proceedings (cont)                                         AR20130012633



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