IN THE CASE OF:	 

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20140000849 


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, through Counsel, promotion to the rank of captain (CPT) or, in the alternative, reconsideration for promotion to CPT by a special selection board (SSB).

2.  The applicant further requests, through a field representative for his Member of Congress, an extension of his retirement date of 16 July 2014 to continue his service until the Army Board for Correction of Military Records renders a decision.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests promotion of the applicant to the rank of CPT or, in the alternative, reconsideration for promotion to CPT by an SSB.

2.  Counsel states:

* the applicant did not receive an officer evaluation report (OER) from 30 July 2010 until the filing of this application
* the non-filing of an OER by the applicant's chain of command during the promotion board time frame caused him to be non-selected for promotion to CPT
* the applicant's non-selection for promotion to CPT was in error and unjust given his service history
* around 1 January 2011, he returned from overseas and began contacting his unit requesting to return to unit training
* his unit refused to allow him to report for duty for battle assemblies until toward the end of January 2012 when a U.S. Army Judge Advocate General's Corps mobilization support officer notified his chain of command that he should be allowed to drill
* on 27 November 2012, the applicant's packet and file were submitted to a U.S. Army Human Resources Command (HRC) promotion board – he was not selected for promotion
* Military Personnel (MILPER) Message 12-283 specifically stated that Army "Commanders at all levels must make special efforts to ensure any applicable evaluation reports for eligible officers are expeditiously processed"
* there was a command failure to follow MILPER Message 12-283 and Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-33(e), which states, "Commanders should exercise due diligence in maintaining rating schemes and ensuring the rendering of reports that are due"

3.  Counsel provides a memorandum with 16 exhibits.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Air Force from 16 July 1991 to 15 July 1996.  He later served in the Air Force Reserve.  On 16 March 2008, he was commissioned as a second lieutenant in the U.S. Army Reserve.

2.  On 15 September 2009, he was promoted to first lieutenant (1LT).

3.  A review of the applicant's records shows he received OER's for the following periods:

* 30 July 2008 through 29 July 2009, with "Satisfactory Performance, Promote" and "Fully Qualified" ratings (signed by the applicant)
* 30 July 2009 through 29 July 2010, with "Satisfactory Performance, Promote" and "Fully Qualified" ratings (not signed by the applicant)

4.  His records are void of documentation indicating he received an OER for any period from 30 July 2010 forward.

5.  On 21 April 2011, the applicant was notified of his non-selection for promotion to CPT.  He was advised that all eligible officers receive two opportunities for promotion and that if he remained eligible he would be considered for promotion the next year.  He was further advised that selection boards do not record the reason for selection or non-selection of individual officers.

6.  On 8 August 2012, the applicant received a general officer memorandum of reprimand (GOMOR) for being convicted in the country of Latvia on 26 September 2008 of "immoral acts with a minor," a violation of the Criminal Law of Latvia, and sentenced to 2 years in prison.  The GOMOR further shows:

	a.  He was extradited to Latvia in accordance with the Extradition Treaty between the United States and Latvia after challenging Latvia's extradition request in the U.S. District Court for the Northern District of California.

	b.  He failed to report to annual training as ordered on 21-23 December 2011.

	c.  A board convened on 23 June 2012 and found the evidence supported that he was convicted and that he failed to participate satisfactorily in annual training.

7.  On 28 August 2012, the applicant submitted a rebuttal to the GOMOR.  He stated:

	a.  He respectfully disagreed with the facts of the GOMOR and did not believe the reprimand was fair or warranted.  He requested withdrawal of the reprimand or, at a minimum, placement in his local file so he could continue to honorably serve.

	b.  On 23 June 2012, the exact issues outlined in the reprimand were heard by an officer separation board convened by his command.  The board heard all of the evidence in the case and unanimously voted to retain him in the Army.

	c.  He was tried in Latvia without his prior knowledge.  According to the U.S. Department of State as of 2008, "there were significant problems" with Latvia's judicial system, "including inefficiency and corruption."  Such reports had been standard for the past several years from a number of respected sources.  The reports and facts were not contradicted by the government at his separation board.

	d.  He had 18 years of honorable service.  The entire incident involving the Latvian judicial system was something he disputed and was in the process of appealing, as his rights were clearly violated by the entire process.

8.  On 14 September 2012, the GOMOR-imposing authority concluded that the facts supported the GOMOR and directed permanent filing of the GOMOR and associated documents in his official military personnel file (OMPF).

9.  On 28 March 2013, the results of the Fiscal Year (FY) 2013 CPT Army Medical Department (AMEDD), Army Reserve Active Guard Reserve (AR-AGR) and AR Non-AGR, and Army National Guard of the United States Competitive Categories Promotion Selection Board were released.

10.  In an undated memorandum from the Chief, Regional Personnel Support Center, Headquarters, 63rd Regional Support Command, Mountain View, CA, subject:  Options upon Nonselection for Promotion after Second Consideration, the applicant was notified of his options following his second non-selection for promotion to CPT.  He was advised that Reserve officers not selected for promotion in a second consideration must be separated not later than the first day of the seventh month following the President's approval of the board results unless they, in part, were eligible for and request reassignment to the Retired Reserve or have been credited with 18 or more but less than 20 years of satisfactory Federal service for retired pay purposes.

11.  In an undated memorandum, from the Chief, Reserve Personnel Service Center, Headquarters, 63rd Regional Support Command, subject:  Retention in an Active Status to Complete 20 Qualifying Years of Service for Non-Regular Retirement, the applicant was advised that:

	a.  his retention was authorized until the earlier of the following dates:

		(1)  the date on which he completed 20 qualifying years Federal service for retired pay; or

		(2)  3 years from his required removal date (15 July 2015) (should have been 15 July 2014) if he had at least 18 years but less than 19 years of qualifying service; or

		(3)  2 years from his required removal date if he had at least 19 years but less than 20 years of qualifying service; and

	b.  he would be transferred to the Retired Reserve upon completion of 20 qualifying years of service.

12.  On 19 March 2014, an advisory opinion was obtained from the Chief, Officer Promotions Special Actions Branch, HRC.  This official stated the applicant's request for promotion to CPT did not have merit.  The advisory official states:

	a.  Title 10, U.S. Code, section 14104, prevents disclosure of board proceedings to anyone who was not a member of the presiding board; therefore, any comments, remarks, or statements from non-board members or any third-party personnel are purely speculative.

	b.  MILPER Message 12-283 was issued on 14 September 2012, some 74 days before the convening date of the aforementioned board.  This message stated, "In order to be eligible for consideration by the board, all mandatory or optional OERs/AERs [academic evaluation reports] must have been received error free in the Evaluation Reports Branch, Human Resources Command no later than close of business on 16 November 2012."  There are no records or actions that reflect submission of "said reports" prior to 26 September 2013 initially and 5 February 2014; both of which were rejected by the HRC Evaluations Branch.  Therefore, the applicant has not presented a showing of proof of "due diligence" within the guidelines of Department of Defense Instruction 1320.11 (Special Selection Boards) and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19f(2), for an SSB.

	c.  Even though it is impossible to determine the exact reason(s) for the applicant's non-selection, it is important to note the GOMOR, dated 2 August 2012, could be the probable primary mitigating factor for non-selection.

13.  On 31 March 2014, counsel provided a response to the advisory opinion in which he stated:

	a.  The subject advisory opinion/memorandum was in error and for unknown reasons, HRC attributes the failure of the missing OER's to the applicant.

	b.  The MILPER message cited in the advisory opinion/memorandum specifically stated that Army "Commanders at all levels must make special effort to ensure any applicable evaluation reports for eligible officers are expeditiously processed."

	c.  The applicant's command failed to issue or file an OER which likely caused him to be passed over for promotion a second time.  This is an injustice based on the true facts of this case.

	d.  The applicant's non-promotion was both in error and unjust.

14.  Headquarters, U.S. Army Reserve Command, Orders 14-171-00001, dated 20 June 2014, reassigned the applicant to the Retired Reserve effective 16 July 2014.  The additional instructions show he was twice non-selected for promotion  and he completed qualifying years of service after continuation under Title 10, U.S. Code, section 12646.
15.  On 26 June 2014, a field representative for the applicant's Member of Congress provided a copy of his retirement orders and requested reinstatement of his mandatory removal date (MRD) of 15 April 2015.

16.  Counsel provided a letter of recommendation from the applicant's commanding officer.  His commanding officer states that if properly researched, the Army will determine that an egregious mistake is about to be made concerning the applicant's career.

17.  A review of the applicant's records in the HRC Interactive Web Response System shows:

	a.  An OER for the period 30 July 2010 through 3 February 2013 was received at HRC on 26 September 2013 and rejected.  An associated administrative note states, "The period covered in this report should be counted as non-rated time.  Soldier is considered a ?no show? or ?non-participant? for duty or battle assemblies..."

	b.  An OER for the period 29 July 2010 through 29 July 2013 was received at HRC on 5 February 2014 and rejected.  An associated administrative note states, "This report is being rejected due to Soldier is a non-participant/unsatisfactory participant.  According to both rater and senior rater narrative, Soldier participated minimally with the unit, if at all.  Most of the time was spent incarcerated or doing RST [regularly scheduled training] with another unit.  If the Soldier spent sufficient time doing RST with another unit, then that unit must evaluate the Soldier..."

18.  A review of the applicant's Chronological Statement of Retirement Points, dated 1 July 2014, shows the applicant has a total of 19 years, 1 month, and 3 days of qualifying years for retirement and he has earned a total of 3,738 credible points.

19.  There is no evidence that the applicant's MRD was ever established as or changed to 15 July 2015.

20.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  

     a.  Paragraph 3-19f(2) states the Commander, HRC, Office of Promotions will normally not determine that a material error existed when an administrative error was immaterial; or the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the official personnel file; or when the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and provided any relevant documentation that he or she had. 

     b.  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.

21.  Army Regulation 623-3 states that generally Soldiers will have a continuous rating history of sequential OER's documenting both rated and non-rated time.

	a.  Non-rated time encompasses periods of time when a rated Soldier cannot be evaluated.  These periods include a variety of circumstances when a Soldier is not performing duty in an assigned position under a valid rating chain.  Unacceptable gaps are periods when the rated Soldier was in a status that warranted the preparation of an evaluation report but reporting officials failed to render an evaluation report.  Such gaps will be resolved by the rating chain responsible for completing the missing evaluation report.  These gaps will not be covered as non-rated time on any other evaluation report.

	b.  The absence of a complete-the-record evaluation report in the OMPF at the time of the board's review will not be the basis to request standby reconsideration unless the absence is due to administrative error or delay in processing by HQDA.

	c.  Paragraph 6-9 provides guidance for processing and resolution of appeals and states that in the case of an invalidated report, a memorandum will be placed in the performance folder of the OMPF declaring the period as non-rated time.  There are no provisions for providing a new report or correspondence providing a substituted evaluation by any appellate authority.

	d.  Periods of non-participation will be documented as non-rated time on evaluation reports (non-rated code "Z" in accordance with Army Pamphlet 623-3 (Evaluation Reporting System)).  When a Soldier's participation is unsatisfactory due to failure to participate in any battle assemblies or annual training and the Soldier is declared an unsatisfactory participant, the Soldier can no longer be evaluated.  Thereafter, until he or she returns to an active status and begins participating, the time period covered by the unsatisfactory performance will be documented as non-rated time on evaluation reports (non-rated code "A" in accordance with Army Pamphlet 623-3).  No report will be rendered until the Soldier returns to an active status and meets minimum rater qualifications.
22.  MILPER Message 12-283, dated 14 September 2012, announced the policy, criteria, and zones of consideration for the FY13 CPT AMEDD, AR-AGR and AR Non-AGR, and Army National Guard of the United States Competitive Categories Promotion Selection Board.  This MILPER message stated, in part:

	a.  Mandatory Department of the Army promotion selection boards would convene on or about 27 November 2012 to consider Reserve of the Army AMEDD 1LT's for promotion to CPT.

	b.  Officers with missing OER's in their board files or OMPF's were directed to check the IWRS online application as this system would identify any evaluations not completed (either on hold or rejected) due to errors.  Officers with questions about OER policy or procedural matters were directed to contact an evaluations point of contact at HRC.

23.  Title 10, U.S. Code, section 14504, states Army officers on the Reserve Active Status List in the grade of 1LT who have failed selection 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 no 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.

24.  Title 10, U.S. Code, section 12646, provides the legal authority for retention of commissioned officers after completing 19 years of qualifying service for a Reserve retirement.  It states, in part, that Reserve commissioned officers may not be discharged or transferred from an active status without his consent before the earlier of the following dates:  on the date on which the officer is entitled to be credited with 20 years of service or the second anniversary of the date on which he would be otherwise discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  Officers are largely responsible for their own careers.  An officer exercising due diligence knows when he or she is eligible for promotion consideration and is alert for when that promotion board will be held.  The evidence shows the applicant did not exercise reasonable diligence in discovering he had missing OER's and undocumented non-rated time.

2.  MILPER Message 12-283 announced the convening date of the 2013 CPT AMEDD board with specific instructions for eligible officers to ensure their records were complete and met the requirements.  The message warned that failure to comply with the instructions could be viewed as the lack of due diligence on the officer's part.

3.  It is puzzling that the applicant did not inquire about his promotion file until after the board adjourned and he had not been selected.  His rebuttal to his GOMOR shows he returned from Latvia with ample time to address problems with his records.  His failure to ensure his promotion file was complete despite the clear instructions in the MILPER message regarding deadlines and documents do not justify consideration by an SSB.  The reason for his non-selection is unknown since promotion boards do not disclose the reason for selection or non-selection of an officer.  

4.  Further, two OERs showed he had satisfactory performance and was fully qualified.  In addition, he provided insufficient evidence to show the GOMOR was unjustly issued.  Therefore, insufficient evidence has been presented to show he would have had a reasonable chance of being recommended for promotion if only the OERs were not missing.

5.  There is no evidence of material error that would warrant sending his records before an SSB.

6.  The evidence of record shows the applicant was either incarcerated or performing command-approved RST with another unit; therefore, HRC correctly rejected the OER's.  Either a memorandum declaring his non-rated time or an OER from the unit he was performing command-approved RST with should have been submitted to HRC.

7.  Although the Headquarters, 63rd Regional Support Command, issued the applicant a notification memorandum which showed an MRD of 15 July 2015, this date appears to have been an administrative error.  There is no evidence his MRD was ever established as or changed to 15 July 2015.

8.  Based on the orders transferring him to the Retired Reserve, it appears the applicant will have 20 qualifying years of Federal service on 15 July 2014 and changing his MRD to a later date would be contrary to law.  Even if the Board did amend his MRD, he would still be required to separate in July 2014 based on law – a Board correction cannot take precedence over law.  Therefore, relief is not warranted.

9.  In view of the foregoing, there is no basis upon which to grant 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 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)                                         AR20140000849



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ABCMR Record of Proceedings (cont)                                         AR20140000849



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