IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130018742 


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, that her discharge be voided and she be afforded a Special Selection Board review.

2.  The applicant states, in effect, that she was not properly informed of the procedures and requirements for promotion and that she had not been advised of her first nonselection for promotion until after the second promotion board had convened.  

3.  The applicant provides:

* 16 January 2013 nonselection notification
* 24 April 2013 nonselection letter
* DA Form 2-1 (Personnel Qualification Record)
* two DA Forms 67-9 (Officer Evaluation Report)
* discharge orders

CONSIDERATION OF EVIDENCE:

1.  On 17 December 2010, the applicant was commissioned a first lieutenant (1LT) in the U.S. Army Reserve (USAR), Army Nurse Corps, with an effective date of rank (DOR) of 17 December 2008.  She was assigned to a unit in Saint Peters, Missouri. 



2.  Her records in the Integrated Electronic Personnel Records Management System (iPERMS) contain OERs for only two periods.  

   a.  There is no OER or Academic Evaluation Record (AER) for the period between 17 December 2010 and 16 October 2011.
   
   b.  The OER for the period 17 October 2011 through 16 October 2012 was completed on 30 July 2013.  It shows her rater marked her in the top block (Outstanding Performance, Must Promote) and her senior rater marked her in the next-to-top block (Fully Qualified) with the note "I am serving as senior rater for the review function only, since no senior rater is available who is eligible to evaluate."  She is shown as center of mass and she was the only officer rated.  

   c.  The OER for the period 17 October 2012 through 17 August 2013 was completed on 4 September 2013.  It shows her rater marked her in the top block (Outstanding Performance, Must Promote) and her senior rater marked her in the top block (Best Qualified).  She is shown as center of mass and she was the only one of two officers rated.

3.  Her Department of the Army photograph was added to her records in iPERMS on 4 February 2013.

4.  The applicant's file was reviewed by the Fiscal Year (FY) 2012 Reserve Component (RC), Captain (CPT), Army Medical Department, Promotion Selection Board.  This board was convened on 9 January 2012 with the results being released on 16 October 2012.  

5.  On 16 January 2013, the applicant was notified she had been nonselected for promotion to CPT by the FY 2012 RC CPT Promotion Board.  

6.  The applicant's file was reviewed by the FY 2013 RC CPT Promotion Board.  This board convened on 27 November 2012 with the results being released on 28 March 2013.

7.  On 24 April 2013, the applicant was notified she had been nonselected for promotion to CPT.  With this being a second nonselect she was notified that she would be discharged on the 1st day of the 7th month following the date of Presidential approval of the board results.

8.  The applicant was honorably discharged effective 1 October 2013 as a twice non-select for promotion to captain.

9.  In the preparation of this case, an advisory opinion was obtained from U.S. Army Human Resources Command (HRC), Chief, Officer Promotion Management.  The advisory official recommended partial relief and stated:

   a.  The reason(s) for her nonselection is unknown because of the statutory requirements set forth in Title 10, USC, section 14104 (Nondisclosure of Reserve Selection Board Proceedings), that prevents disclosure of these proceedings to anyone outside the promotion board in question.  The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered.
   
   b.  Her contention that she was not properly educated as to the proper requirements for promotion consideration was dismissed as every officer being considered for promotion is sent the zone message for their boards which details all the associated promotion requirements via their Army Knowledge Online (AKO) account.
   
   c.  Consideration for insight into her chain of command's role in the process of educating her on the requirements for promotion and her apparent untimely notification of her first nonselection was deferred for her command’s input.  (No input from her command is of record.)
   
   d.  The review did reveal that the applicant may have grounds for an SSB for the FY 2013 board based on material error due to her unit's failure to process her OER in a timely manner before the 16 November 2012 suspense date.
   
10.  The applicant was provided with a copy of this advisory opinion.  The record does not contain an indication she responded to the advisory.

11.  Title 10, U.S. Code, section 14504 states a 1LT on the selection list who has failed to be selected for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states promotion consideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements and that requests must contain complete justification and be received prior to the board convening date.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was commissioned on 17 December 2010 with her record first going before the FY 2012 CPT's promotion selection board that convened on 9 January 2012. 

2.  Her command appears to have failed to provide her with any evaluation for her first nine months of service.  This omission means that at the time of the FY 2012 board she had no evaluation for the board to consider.  

3.  While the specific reason for her nonselection is unknown, the absence of an OER at the time of review would have been a major negative factor and could account for her nonselection.

4.  Further, the applicant was not notified of her first nonselection until 16 January 2013.  The FY 2013 selection board convened on 27 November 2012.  Again, at the time of this review the applicant still did not have any OER's of record.

5.  While an officer must take responsibility for the contents of their records and ensure they are complete at the time of any promotion consideration, the applicant's command appears to have failed her by failing to process her 2011 - 2012 OER in a timely manner.  

6.  The applicant could not have corrected any errors or omissions in her records if she was not advised of her nonselection until after it was too late to make any corrections or process the missing documents.  

7.  Based on the above facts and findings, a finding of material error is warranted and it would be equitable to correct her records by forwarding her records to an SSB for consideration for promotion to CPT under the applicable criteria, as recommended below.



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 all Department of the Army records of the individual concerned be corrected by:

	a.  Submitting her records to an SSB for consideration for promotion to CPT under the applicable criteria for FY 2012 and FY 2013.

	b.  If selected for promotion by the SSB, further correct her records by voiding her discharge, showing she met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting 
her in due course in accordance with Army Regulation 135-155 to CPT with the appropriate date of rank, and paying to her any associated back pay and allowances.

	c.  If not selected for promotion, notifying her accordingly.



      _______ _   __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)                                         AR20130018742



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ABCMR Record of Proceedings (cont)                                         AR20130018742



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