BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20140000875 


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, correction of his records to show his 
DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 29 May 2009 through 28 May 2010 was filed in his Official Military Personnel File (OMPF) prior to 8 January 2013, the date the Fiscal Year 2013 (FY13) Lieutenant Colonel (LTC), Army Promotion List (APL), Competitive Categories, Promotion Selection Board Selection Board convened.

2.  The applicant further requests a special selection board (SSB) for promotion to LTC, by the FY13 LTC APL Promotion Selection Board.

3.  The applicant states he is requesting an SSB based on a material error in the board consideration file that was presented to the FY13, LTC, APL, Promotion Selection Board.  His OER for the rating period 29 May 2009 through 28 May 2010 was omitted from the board consideration file, and this omission occurred despite his best efforts and due diligence.  

	a.  On 13 November 2013, his request for an SSB was denied based on the determination that a missing 2009 through 2010 OER at his present rank was not a material error, but a minor error and a failure of due diligence on his part to ensure the missing OER was filed in his OMPF and/or to advise the President of the Board of his missing OER.

	b.  He believes this denial is in error.  A missing OER showing his performance for an entire year at his current grade would have had dire effects on the board’s consideration of his promotion packet and is a material omission.  Furthermore, he attempted to submit/have his chain of command submit this OER up until the last day.

4.  The applicant provides:

* various email transmissions, dated from 1 August 2011 to 13 November 2013
* two memoranda, dated 5 November 2013 and 31 December 2013 
* OER for the rating period ending on 28 May 2010
* Interactive Web Response System (IWRS) OER listing
* Military Personnel (MILPER) Message, Number 12-313, issued 1 October 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer 21 January 1999.  He was promoted to major (MAJ) on 1 December 2005.  He is currently serving in the District of Columbia Army National Guard (DCARNG).

2.  His OER for the rating period 29 May 2009 through 28 May 2010 shows his rater checked the "Outstanding Performance, Must Promote" block and stated he "should be promoted to Lieutenant Colonel as soon as possible."  His senior rater checked the "Best Qualified" and "Center of Mass" blocks and also stated "should be promoted to Lieutenant Colonel as soon as possible."

3.  IWRS shows his OER for the rating period 29 May 2009 through 28 May 2010 was initially submitted to the U.S. Army Human Resources Command (HRC) OER branch on 7 April 2011.  However, the OER was rejected on 11 April 2011.  HRC stated the "OER [was] rejected due to OER illegibility… [The] OER [must] be resent with a better quality in order to be processed."  

4.  He provided a series of email transmissions, dated from 1 August 2011 through 9 May 2012, which show: 

	a.  On 1 August 2011, Chief Warrant Officer Four (CW4) JT directed Sergeant First Class (SFC) CLS to forward the applicant’s OER to the HRC OER Branch for processing.

	b.  On 9 May 2012, the applicant emailed SFC CLS and informed him the OER was not showing up in the Interactive Personnel Electronic Records Management System (iPERMS).  The applicant asked if SFC CLS could resubmit the OER because he has a promotion board coming up on 25 June 2012.
		(1)  SCF CLS responded to the applicant and stated he would have to check to see why the OER did not make it into iPERMS.  He further stated that from his (SFC CLS) end, everything appeared to have already been processed.

		(2)  The applicant responded by providing SFC CLS the information listed in IWS showing the OER was rejected on 11 April 2011 and HRC stated the "OER [was] rejected due to OER illegibility… [The] OER [must] be resent with a better quality in order to be processed."  

		(3)  SFC CLS responded and apologized.  He stated he thought the applicant had been referring to the OER for the 2010-2011 rating period that he (SFC CLS) had filed for him.  He further stated he was missing the OER for the 2009-2010 period to which the applicant had been referring.  He informed the applicant he would contact the DCARNG and ask them to resend the OER.

5.  He provided a series of email transmissions, dated 9-10 May 2012, showing he contacted SFC DCR, the National Guard Bureau (NGB) noncommissioned officer in charge (NCOIC) for Department of the Army (DA) Boards.

	a.  he informed SFC DCR he sent a revised officer record brief (ORB) to his chain of command and State military personnel office (MILPO), but that his HRC My Board site told him he should also send his materials to her office.  He also informed her his board file did not contain his 2009-2010 OER, which he was attaching; however, he had also sent this information to his command and MILPO.

	b.  SFC DCR reminded the applicant that the HRC site said to contact NGB DA Boards if he had not been able to receive help from his chain of command.  She stated the NGB DA Boards office did not have the ability to upload documents into iPERMS or update his ORB data.  She stated that his board file would be updated on or about 18 May 2012 and he would have plenty of time to review his file and new ORB data because his board file would not close until 
25 May 2012.

6.  He provided an email transmission, dated 2 October 2012, showing he contacted SFC OVW at the DCARNG.  He stated that the Reserve Component (RC), LTC, APL, FY13 promotion board MILPER message was just released.  He asked if he would be going to that board and if SFC OVW could confirm whether or not MAJs who had been selected for continuation (SELCON).  He also asked SFC OVW how he could get his OER in iPERMS and stated he had attached a copy to his email, but stated he had also sent the SFC a copy for DCARNG order of merit list (OML) Board.

7.  He provided a series of email transmissions, dated 3 January 2013 between himself and captain (CPT) DAC at the DCARNG.  He informed the CPT he checked his board file and his OER still had not populated and asked the CPT to send the OER to HRC/iPERMS and to HQDA for his board.  He informed the CPT the OER, which he attached to the email, had to be "wet" signed with a pen because his senior rater had retired and turned in his common access card (CAC) card before he signed the OER.  He also informed the CPT that HRC had rejected the OER because it was illegible.  He provided the CPT the address to HRC listed in the MIPLER message and asked the CPT to mail his OER to that address.

8.  In a memorandum to HRC, dated 5 November 2013, he requested consideration by an SSB for the FY13, LTC, APL Promotion Selection Board, which convened on 8 January 2013 based on a material error in the board consideration file.  Specifically, his OER for the period 29 May 2009 through 
28 May 2010 had been omitted from the Board consideration file.  He stated the omission occurred despite his best efforts and due diligence.

	a.  On 9 May 2012, he discovered the OER was missing from his OMPF and iPERMS, based on a note in IWS showing the OER was rejected on 11 April 2011 that it must been resent with a better quality in order to be processed.  He immediately contacted his chain of command and unit administrative support personnel in the DCARNG to have them resend a legible copy.

	b.  On 10 May 2012, he sent a copy of the missing OER to the NGB HQDA Boards Officer and was informed they did not have the ability to upload documents into iPERMS.

	c.  On 2 October 2012, the OER still had not been filed in his OMPF, so he, again, requested assistance from his chain of command and administrative support personnel in the DCARNG to have them send a legible copy of the OER to HRC for filing in his OMPF.

	d.  Administrative notes in IWRS, dated 30 November 2012, show an attempt to submit his 2010-2011 OER (the incorrect OER).  This submission was rejected as duplicate; however, no attempt was made to submit the missing 2009-2010 OER.

	e.  On 3 January 2013, he once again advised his chain of command and sent administrative personnel in the DCARNG a copy of the missing OER for filing in his OMPF and informed them the OER had to be wet signed, thinking this may have been part of the reason for rejection.  He also provided the HRC address in the MILPER message to DCARNG personnel and requested his OER be mailed directly to the address.

	f.  Administrative notes in IWRS, dated 7 January 2013, show an attempt to submit his 2010-2011 OER (the incorrect OER).  This submission was also rejected as duplicate; however, again, no attempt was made to submit the missing 2009-2010 OER.  Moreover, the missing OER was not filed in his OMPF prior to the convene date of the Board and is still missing from his OMPF.  

	g.  He exercised due diligence and pursued every possible avenue to have the missing OER filed in his OMPF prior to the Board’s convening date.  However, because the missing OER resulted in a material error in his board consideration file, he requested consideration by an SSB .

9.  He provided an email transmission, dated 13 November 2013, from Mr. JKD, the DA Promotions SSB actions officer, at HRC.  Mr. JKD’s email constituted HRC’s response to the applicant’s request for an SSB based on nonselection under the FY13 criteria.  Mr. JKD stated:

	a.  Based on a review of the information provided and that of the applicant’s past two board files, the Special Actions Section, Officer Promotion Management, HRC, cannot approve his request for SSB reconsideration.  The grounds are that a minor material error, the identified OER, did not qualify for reconsideration in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19, f.  

	b.  In addition, Department of Defense Instruction (DODI) 1320.11, paragraph 3. b. prohibits SSBs pursuant to section 638(b) or 14502(b) or reference (c), of any person, who by maintaining reasonably careful records, may have discovered and taken steps to correct that error or omission on which the original board based it’s decision against promotion.  Moreover, the respective zone message announcing the respective promotion board afforded each candidate the opportunity to correspond directly with the president of the board and its members to address any issues that were not readily visible by viewing their respective file, including that which each candidate believed was important during consideration.

	c.  The applicant did not take advantage of this opportunity.  The applicant was allowed, like all other board candidates, the means to view his promotion board documents at a minimum of 60 days prior to the convene date of the respective board to five days prior to the convene date to properly address and correct any deficiencies in his OMPF.  The promotions office verified that he viewed and certified his promotion board file on 2 January 2013 without comment or letter, thus failing to show any due diligence to correct any perceived inaccuracies to better portray his individual circumstances.  

	d.  The applicant also viewed and certified his FY12 LTC APL my board file without the OER being present.  The information the applicant provides only shows his initial attempt at submitting the OER on 7 April 2011.  Every attempt he mentioned thereafter reflects an OER for a different rating period (2010-2011). Furthermore, as of that morning (13 November 2013), his OER for the 2009-2010 rating period is still not in his OMPF and there have been no further attempts to submit the OER or endure the OER was in his OMPF.  

	e.  Without question, the applicant received fair and equitable consideration for promotion.  The decision not to select him for promotion does not mean that his is not a quality officer.  Rather, it is indicative of the very competitive nature of the promotion system and the quality of the officers the applicant competed against for promotion.  

	f.  Every aspect of the existing law and policy was adhered to regarding the applicant’s promotion opportunity and in adjudicating his subsequent SSB request.  Furthermore, this was the final adjudication of the applicant's request.  

10.  IWRS shows his OER for the rating period 29 May 2009 through 28 May 2010 was resubmitted to and accepted by the HRC OER branch on 
18 November 2013.

11.  An advisory opinion, dated 25 June 2014, was obtained from the NGB.  The NGB recommended disapproval of the applicant's request and essentially mirrored the comments made in HRC's denial email.

12.  MILPER Message Number 12-313, FY13, LTC APL, Army Reserve Active Guard Reserve (AR-AGR), Army Reserve Non-Active Guard Reserve (AR NON-AGR), and Army National Guard of the United States (ARNGUS), Competitive Categories, Promotion Selection Boards, issued on 1 October 2012, states:

	a.  Mandatory DA Promotion Selection Boards will convene on or about  January 2013, to consider Reserve of the Army MAJs for promotion to LTC.  Zones of consideration consist of all Reserve of the Army (USAR and ARNGUS) MAJs with a date of rank (DOR):  Above the Zone: (USAR and  ARNGUS) 31 March 2007 and earlier; Promotion Zone: (USAR and ARNGUS) 1 April 2007 – 31 March 2008; and Below the Zone: (USAR only) 1 April 2008 – 31 March 2009.

	b.  In order to be eligible for consideration by the board, all mandatory or optional OERs must be received, error free, in the evaluation reports branch, HRC no later than and by close of business on 28 December 2012.  All OERs must be submitted to HRC via Army Knowledge Online (AKO) forms, which requires digital signatures and a recent version of the evaluation form.  HRC encourages deployed units and deployed rating officials to use and submit in AKO forms whenever possible but allows deployed units to digitally-sign or ink-sign, print and scan, and submit OERs by email.  Sending OERs by email is only for deployed units or deployed rating officials and should only be used if AKO forms submissions are not available.  All nondeployed units or rating officials with ink-signed or older version forms not useable in AKO forms must mail the printed OER.  Reports which are received by HRC, Evaluation Reports Branch for processing by close of business 28 December 2012 will be placed in OMPF and then selection board files prior to selection board voting assuming the evaluation is relatively free of errors.  This suspense date is for receipt of evaluations by HRC, Evaluation Reports Branch, not for completion to OMPF.  If an evaluation is seen as working in the IWRS with a received by date of 28 December 2012, or earlier and the evaluation is free of errors, it will be completed in time for the selection board.  Officers may validate their board files even if an inbound evaluation is due to process.  Assignment officers, board support personnel and iPERMS are not authorized to place OERs directly in OMPFs.  All evaluations process through the evaluation reports branch using normal processing channels into the OMPF and then into the Soldier’s board file.  OERs which are not labeled (and profiled) by the Evaluation Reports Branch will not be seen by this board.  Officers with missing OERs in their board files or OMPF should first check the online application IWRS (https://knoxhrc16.hrc.army.mil/iwrs).  This will identify any evaluations not completed (either on hold or rejected) due to errors.  Officers with questions about OER policy or procedural matters can contact an evaluations POC for resolution.

	c.  All officers in the zones of consideration may, if desired, submit correspondence to the president of the board.  Officers may write a memorandum to the president of the boards if there is information which would be deemed important in the consideration of their MBF.  For example, if they are currently deployed and do not have a recent OER and are unable to update a photo.  Keep the memorandum short, to the point and relevant.  Memoranda must be received at the DA Secretariat no later than (NLT) 28 December 2012 to allow for processing.  ARNGUS officers should submit memoranda to their State/Territory officer management branch.  Failure to comply with these instructions will be viewed as a “lack of due diligence” on your part.  The DA Secretariat will only accept one (1) memorandum to the president of the board.  Any memoranda/letters considered by a board will become a matter of record for the board and will be retained by CDR, HRC.  Memoranda to a board including enclosures will not be filed in an officer's OMPF.  Officers must provide missing documents that they have in their possession, or make a reasonable attempt to retrieve those missing documents.  Failure to comply with this requirement may demonstrate a "lack of due diligence" on the officers part.  An explanation for the inability to comply will accompany all requests for an SSB.  Documents that are in the performance portion of the OMPF will be pulled into the MBF.  

	d.  All officers serviced by an S-1/MPD/MIL HR office, normally TPU and AGR, will process their OMPF documents through that office.  IRR or IMA officers will process their OMPF documents through their career manager or assignment officer.  Do not submit OERs to iPERMS, they must go to the evaluations branch for processing.  

	e.  ARNGUS officers must submit missing non-OMPF documents (letters to the board president) through their State/Territory officer management branch, who will then submit those documents to ARNG-HRP-R NLT 21 December 2012. ARNGUS officers should check their evaluation history and OERs on-line through their OMPF file on iPERMS.  This can be accessed through https://iperms.hrc.army.mil.  Send unprocessed OERs and letter reports to the email or mail address listed in paragraph 3g for processing.  Submit all OMPF documents through your chain of command to the State/Territory MILPO for processing through iPERMS.  Although the OMPF is used to create an MBF, officers must validate their MBF, as this is their official file for consideration.  ARNGUS officers must contact their chain of command, MILPO before 
contacting NGB for any discrepancies between their OMPF and the MBF.  The email address for NGB is ngb.arp.da@ng.army.mil or call 703-607-9112.  For corrections contact your chain of command or State OPM.  

13.  Army Regulation 135-155 states in:

	a.  Paragraph 3–12c (Communications with selection boards), all communications, other than those solely administrative in nature, will be in writing, furnished to all board members, and made a part of the board’s record.   No one, other than the Secretary of the Army (SA), will appear in person to address a promotion selection board on any matter; this authority may not be delegated.  This does not restrict the Secretariat for DA Selection Boards (RC) from furnishing administrative information to the board.  Evaluation reports that have not been processed through the Evaluation Support Division, and which are not part of the OMPF of an officer being considered for promotion, will not be given to a board.  However, OERs for officers under consideration will be provided to promotion boards under the following conditions:

		(1) Except as specified below, evaluation reports must be administratively correct and received at the address at paragraph b(2)(d) ["CNGB; CDR, HRC; and area commanders will forward such information to the board through CDR, HRC, Chief, Office of Promotions (RC), ATTN: AHRC-MSL…"] by the due date identified in the selection board notice announcing the zone of consideration and date the board convenes.  

		(2) As an exception to (1), above, late evaluation reports, promotion reports,  and referred reports, if administratively correct, will be provided to the appropriate board on receipt at the Office of Promotions (RC), provided the board has not completed its final, formal vote.  A late evaluation report is defined as any report, other than a "complete the record" OER, which has a "thru" date more than 60 days earlier than the due date established in the selection board notice if the rated officer is AGR, and 90 days earlier than the due date established in the selection board notice, if the rated officer is other than AGR. 

	b.  Paragraph 3–13 (Individual communications with the board), subparagraphs b and c, state that an officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to his or her consideration.  Any written communication considered by a selection board will become a matter of record.  It will be maintained with the records of the board.  Written communications to boards, including enclosures, are privileged 
communications and will not be filed in the officer’s OMPF.  Written communications with the board will be accepted only from the officer under consideration.  Proper enclosures to a letter to the board include newly acquired diplomas, degrees, professional stature, or information pertaining to civilian occupations.  Appropriate written communications to a selection board will be considered if received not later than the day before the selection board convene date.  Communications will be mailed to the President (name of the appropriate board), "CDR, HRC, Office of Promotions (RC), ATTN: AHRC-MSL-P…"  

	c.  Paragraph 3–19a states officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error, may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate.  SSBs, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.  These boards do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996.  

	d.  Paragraph 3-19, subparagraphs c through e, states SSBs are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration and/or contained a material error when reviewed by the mandatory selection board.  Records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines: an officer was eligible for promotion consideration; however, the officer’s records were, through error, not submitted to a mandatory promotion selection board; a review of a mandatory selection board finds that an officer’s records contained a material error; and/or the ABCMR requests such a referral.  The Commander (CDR), HRC, Office of Promotions (RC) (AHRC-MSL) may find that a “material error” [One or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual’s nonselection 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] caused the 
nonselection of an officer by a promotion board.  That agency must first determine that there is a fair risk that one or more of the following circumstances was responsible:

		(1)  The record erroneously reflected that an officer was ineligible for selection for educational or other reasons.  In fact, the officer was eligible for selection when the records were submitted to the original board for consideration.

		(2)  One or more of the evaluation reports seen by the board were later deleted from an officer’s OMPF.

		(3)  One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer’s OMPF.  

		(4)  One or more existing evaluation reports as seen by the board in an officer’s OMPF were later modified.

		(5)  Another person’s adverse document had been filed in an officer’s OMPF and was seen by the board.

		(6)  An adverse document, required to be removed from an officer’s OMPF as of the convening date of the board, was seen by the board.

		(7)  The Silver Star or higher award was missing from an officer’s OMPF.

		(8)  An officer’s military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer’s record (as seen by the board) was incorrect.

	e.  Paragraph 3-19f states the CDR, HRC, Office of Promotions (RC) will normally not determine that a material error existed under the following conditions:

		(1)  Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used.

		(2)  An administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF.  Also, the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that they had.

		(3)  Letters or memoranda of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s OMPF.

		(4)  The board did not consider correspondence to the board president that was delivered to the Office of Promotions (RC) after the cutoff date for such correspondence established in the promotion board zone of consideration message.

DISCUSSION AND CONCLUSIONS:

1.  Despite HRC’s denial letter and the NGB’s advisory opinion recommending disapproval, the evidence of record shows the applicant made numerous attempts to have his missing OER forwarded to the OER branch for processing and placement on his iPERMS.  He tried to resolve the issue through his chain of command on numerous occasions and through the NGB as directed by the MILPER message.

2.  After reading the MILPER message announcing the promotion board and analyzing the content, it is evident that while, on one hand, the MILPER states officers may write to the president to the board to make them aware of any deficiencies and also provided avenues to include old or ink signed OERs, on the other hand, the language strongly discourages ARNG Soldiers from doing so by stating or inferring they must go through their chain of command or the NGB for everything.  As such, it is not surprising that the applicant, not having a human resources background, continued to work through his chain of command and the NGB.

3.  To further complicate matters, it appears his numerous attempts to complete his OMPF were unsuccessful, for whatever reason, and his chain of command continually resubmitted the OER for the 2010-2011 vice the missing OER for the 2009-2010 rating period.

4.  The absence of an annual OER is not minor or insignificant.  It constitutes a material error.  Furthermore, he did exercise due diligence in his attempts to have the missing OER added to his OMPF.  Therefore, he is entitled to have his records considered by an SSB under the FY 2013 criteria.  

5.  Additionally, his record should be corrected to show the contested OER was filed prior to 8 January 2013.

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

	a.  correcting his record to show his OER for the rating period 29 May 2009 through 28 May 2010 was submitted to/accepted by the U.S. Army Human Resources Command OER branch on 28 December 2012, and that the OER was added to his OMPF that same day.  

	b.  submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to LTC under the FY13 LTC Army Promotion List, Promotion Selection Board year criteria.

	c.  That if the applicant is selected for promotion his records be further corrected by promoting him to LTC based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

	d.  if he is separated from an active status prior to the completion of this action that the SSB be continued.

	e.  That if not selected, the applicant be so notified.



      _______ _   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.



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