BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130018878 


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 for promotion to major (MAJ)/O-4, Judge Advocate General's Corp (JAGC) by a Special Selection Board (SSB) for a missing DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period
1 January 2011 through 31 December 2011 (hereafter referred to as the contested OER).  

2.  He states the only reason he was not promoted to MAJ by the Fiscal Year (FY) 2012 MAJ, JAGC, Non-Active Guard Reserve (AGR) Promotion Selection Board was his missing OER.  Therefore, his board file was incomplete.  He explains he started his OER in November 2011 using "My Form" and sent the shell to his rater for completion on 30 January 2012.  His rater did not have computer access and was unable to complete his portion until 17 February 2012. The senior rater was unable to complete his portion of the report due to a technical glitch which was not discovered until early March 2012.  He states since 31 January 2012, the OER was out of his hands and there was nothing he could do to move the process.  He concludes that once the problem was discovered, his OER was redrafted, signed, and submitted on 8 March 2012. 

3.  He provides:

* Self-authored statement
* Contested OER 
* Two supporting statements


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant (lLT)/O2, JAGC and he executed an Oath of Office on 17 November 2003.   

2.  On 22 May 2006, he was promoted to captain (CPT)/O3 with an effective date and a date of rank of 22 May 2006.

3.  The applicant's OERs for the periods 1 January 2009 through 31 December 2009 and 1 January 2010 through 31 December 2010 show he was rated as the "Assistant Staff Judge Advocate (SJA) - Civil Attorney" and the "Civil Law Attorney," respectively, while assigned to the 88th Regional Support Command, Fort McCoy, WI.  He was rated by the Civil Law Attorney, a MAJ, and senior rated by the Deputy SJA, a lieutenant colonel (LTC), on both reports.  His significant duties and responsibilities were essentially the same on both reports. He was also rated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater on both reports with supporting comments.

4.  On 15 January 2010, the applicant successful completed Phase II of the RC Judge Advocate Officer Advanced Course.  

5.  The applicant provided his contested OER that shows he was rated as the "Assistant SJA - Civil Attorney" for the 88th Regional Support Command, Fort McCoy, WI.  He was rated by the Civil Law Attorney, a MAJ, the same rater on his two previous reports, and senior rated by the Command SJA, a colonel (COL). His significant duties and responsibilities were essentially the same as the two previous reports listed in paragraph 3 of this document.  He was also rated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater with supporting comments.  The rater, senior rater, and applicant electronically signed the report on 8 March 2012 and the contested report was added to his file on 22 March 2012.

6.  The applicant provided a memorandum from his senior rater to the U.S. Army Human Resources Command (HRC), dated 10 August 2012, requesting that an SSB for reconsideration of the applicant for promotion to MAJ under the FY 2012 JAG Non-AGR Promotion Selection Board.  He reiterated the applicant's claim concerning the lateness of his submission of the contested OER.  He added that the applicant's OER was initiated using an older version of the DA Form 67-9 and as a result, he was unable to complete his portion of the report.  He added that since a technical error caused the applicant's OER to be submitted outside of the OER cutoff date, he believes a material error existed, due to no fault of the applicant and, therefore, he supports the applicant's request for an SSB.
7.  On 13 September 2012, the applicant was notified that he was considered, but not selected for promotion.

8.  In a memorandum to HRC, dated 11 September 2013, the SJA requested an SSB for the applicant.  He explained that on 4 June 2013 the applicant submitted a request for reconsideration of non-selection for promotion to MAJ JAGC Non-AGR.  Specifically, the applicant requested reconsideration by a discretionary SSB due to missing material information, as described in Army Regulation 600-8-29 (Officer Promotions), paragraph 7-2a.  He said the missing OER was not an immaterial or minor administrative error nor under the circumstance in this case could the applicant have ensured consideration of the OER by the primary board through reasonable diligence. 

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC.  The advisory official stated that the applicant's statement that the only reason he was not selected for promotion to MAJ is because of the missing contested OER is total hearsay.  Title 10, U.S. Code, section 14104, prevents disclosure of board proceedings to anyone outside the promotion board in question; therefore, any comments, remarks or statements from any third party or non-board personnel are purely speculative in nature.

   a.  The applicant's previous SSB request was denied by their office due to his inability to prove due diligence on his part.  He added that Military Personnel (MILPER) Message 11-340, FY 2012 MAJ (RC), JAGC competitive categories was released on 2 November 2011, some 118 days before the convene date of the board and 107 days before all mandatory or optional OERs/Academic Evaluation Reports (AERs) were due to HRC's Evaluations Branch.  His OER, with a thru date of 31 December 2011, was not signed until 8 March 2012.
   
   b.  By his own admittance, the applicant stated he started his report in November 2011, but did not send the shell to his rater for comments until 
30 January 2012, 18 days before HRC's cutoff for board consideration which was not enough time for the rater's/senior rater's comments, Quality Assurance staffing, and Interactive Personnel Electronic Records Management System. upload prior to 17 February.  The applicant's actions did not present a showing of "due diligence."  
   
10.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal, but he failed to respond.

11.  Army Regulation 600-8-29 provides the Army's policies and procedures on officer promotions.  Chapter 7 provides guidance on SSBs.  It states SSBs may be convened (discretionary) to consider or reconsider commissioned officers for promotion when Department of the Army (DA) discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  Reconsideration will normally not be granted when an administrative error was immaterial (minor) or when the officer, by exercising reasonable care, could have detected and corrected the error.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  

   a.  Paragraph 3-21a states that officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration.  
   
   b.  Paragraph 3-21c states reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.
   
   c.  A material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's non-selection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

13.  MILPER Message Number 11-340, dated 2 November 2011, stated that a mandatory DA Promotion Selection Board will convene on or about 28 February 2012, to consider USAR JAG CPTs for promotion to MAJ.  

   a.  The message stated, in pertinent part, that in order to be eligible for consideration by the board, all mandatory or optional OERs/AERs must be received, error free, in the evaluation reports branch, HRC, no later than and by close of business on 17 February 2012.  OERs/AERs received on 17 February 2012, but after close of business will get the next business day as a received date.  To ensure reports are received by HRC this date and time, commanders at all levels must make special effort to ensure any applicable evaluation reports for eligible officers are expeditiously processed. 
   
   b.  All OERs must be submitted to HRC via Army Knowledge Online forms which requires digital signatures and a recent version of the evaluation form. Failure to comply with the instructions in the MILPER Message will be viewed as lack of due diligence on the officer's part.  

14.  Army Regulation 623-3 (Evaluation Reporting System) stated the rated Soldier will always be the last individual to sign the evaluation report.  The rated Soldier's signature will verify the accuracy of the administrative data in part I, confirming the name and SSN on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials in part II; Army Physical Fitness Test and height and weight entries.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an SSB based on his missing OER for the period 
1 January 2011 through 31 December 2011 was carefully considered.  However, there is an insufficient basis to support his request.

2.  The evidence of record shows MILPER Message Number 11-340 announced the upcoming USAR JAG CPTs for promotion to MAJ board on 2 November 2011.  The message gave specific instructions for eligible officers to ensure the officer's record was complete and met the requirements.  The message stated that all mandatory or optional OERs/AERs must be received, error free, at HRC, no later than the close of business on 17 February 2012.  The messages warned that failure to comply with the instructions in the MILPER Messages would be viewed as lack of due diligence on the officer's part.  

3.  By the applicant's own admission, he completed his portion of the form and sent the shell to his rater for completion on 30 January 2012, less than 17 days for both the rater and senior rater to complete the form and return it to him for his signature prior to the evaluation being sent to HRC.  This did not occur and his report was not signed until 8 March 2012 and added to his file on 22 March 2012, after the board had convened.

4.  The applicant maintains that a material error occurred and, therefore, he is entitled to an SSB.  The fact that the applicant and his rating chain did not complete his OER until after the convening date of the board is not considered a material error as defined by the governing regulation.  Further, although the applicant maintains that the missing OER was the only reason he was not promoted to MAJ, there is no evidence to support his claim since board deliberations are not a matter of record.
   
5.  It is noted that the applicant had received two previous OERs where he had been rated in the same principle duty title, with essentially the same duties and responsibilities, by the same rater, at the same unit.  He had also been accessed as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater with supporting comments on both reports.  Therefore, it appears that his performance was well documented on his two previous reports and the contested report added no additional duties and responsibilities that were not captured in his previous reports.

6.  Nevertheless, there is no evidence and the applicant has not provided any to show that a material error existed and this error justifies reconsideration by an SSB.  Therefore, there is no basis for granting the applicant's 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)                                         AR20130018878





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ABCMR Record of Proceedings (cont)                                         AR20130018878



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