IN THE CASE OF:	  

		BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20140000948 


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 a special selection board (SSB) to reconsider him for promotion to chief warrant officer five (CW5).

2.  The applicant states that the original selection board contained a member who is under his career management and assignment scope of responsibilities.  The applicant had previously requested an SSB through the U.S. Army Human Resources Command (HRC), but it was denied.  He believes that his non-selection for promotion by the April 2013 promotion board to CW5 was the result of a bitter and disgruntled CW5 whose presence on the promotion board significantly disadvantaged him for selection.  The applicant believes that the CW5 did not think he was the right person for the position he holds over the CW5.  This belief stems from conversations and email communications between February 2012 and March 2013, as summarized below:

	a.  In February 2012, the disgruntled CW5 told him that he should recognize certain people for their significant milestones and that he was not being fair and equitable about recognitions.

	b.  In an email dated 23 August 2012, the CW5 told him that his decisions concerning the directed "grade-plate roll-down" were flawed.  The applicant contends this was because he had selected the CW5's position as one for reduction to a CW3.  The CW5 indicated that the reduction should be any other position but his, regardless of their mission.

	c.  The applicant notified the CW5 in January 2013 that he was nominating him as a potential member of the 2013 CW3/4/5 promotion board.

	d.  In a phone conversation on 15 March 2013, the applicant informed the CW5 that he was next on the list to deploy.  He informed the CW5 that if he declined the assignment he would have to submit his retirement.  The CW5 indicated he would not deploy and would go see his doctor to get a non-deployable physical profile.  On 18 March 2013, the CW5 provided his physical profile and stated he was non-deployable.

3.  The applicant provides copies of:

* Email communications dated between 24 February 2012 and 28 June 2013 (15 pages)
* Summer 2014 Active Duty Legal Administrator Assignment Vacancies, dated 28 May 2013
* Letter from the applicant to HRC, Request for Promotion Reconsideration by an SSB, dated 16 October 2013
* Letter of Support, dated 18 April 2014 (received as part of applicant's rebuttal to an advisory opinion)

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army in the rank of chief warrant officer four (CW4) as the Chief Warrant Officer of the Branch the Judge Advocate General (JAG) Corps, (CWOB).

2.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, HRC.  The opinion stated:

	a.  The applicant's request for promotion reconsideration by a SSB does not have merit.

	b.  There is no clear evidence to support the applicant's contention that the presence of a particular CW5 significantly disadvantaged his consideration for promotion selection because of animosity and discord between the two based on his position and duties as the CW5's assignment and career manager.

	c.  Concerning the CW5's decision to seek a medical profile, there is no evidence of malice or haste, or that the CW5 attempted to undermine the applicant's position or authority.

	d.  The CW5 was only one of twelve board members who, under oath, were to consider all warrant officers without prejudice or partiality.  The exact reasons for the applicant's non-selection for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613a prevent disclosure of board proceedings to anyone who was not a member of the presiding board.  It can only be concluded that the promotion board determined that the applicant's overall record when compared with the records of his other contemporaries did not reflect as high a potential as those who were selected for promotion.

3.  On 11 April 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to provide rebuttal comments.  In a two-page letter dated 23 April 2014, the applicant provided his response to the advisory opinion.  In summary:

	a.  He states that a material error is defined as being of such nature that in the judgment of the reviewing official had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.

	b.  He refers to Title 10, U.S. Code, section 628(b) concerning persons considered by promotion boards in an unfair manner.  If the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person should be recommended for promotion.  In order to determine that there was material unfairness, the Secretary must determine that the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involve material error of fact or material administrative error, or that the board did not have before it for its consideration material information.

	c.  The applicant asserts that a material error occurred in the judgment of the reviewing official (CW5) which impacted the entire reviewing body and that if it had been corrected at the time he was considered by the board, it would have resulted in a reasonable chance that he would have been recommended for promotion.

	d.  The applicant further asserts that the CW5 clearly had and continues to have animosity toward him.  The CW5 should have disclosed this to the board president.  The CW5 also told the applicant that if he (the applicant) was going to move him from Redstone Army Arsenal, Alabama, he would get his superior involved to keep him there longer.  When this did not work, the CW5 said he would submit his retirement to keep from leaving.  The applicant states he told the CW5 that he would be moving in the upcoming summer and he did, in fact, submit his retirement.

	e.  The applicant states that he identified the CW5's animosity for him as soon as he was selected over him for the assignment manager position.  It was not too long after his entering this duty position that HRC tasked him to provide the names of two CW5s to sit on the promotion board.  He only had three CW5s to chose from and one of them was not available.  This left the disgruntled CW5 as one of the required nominees.  The remaining nominee has written a statement concerning the disgruntled CW5.  Also, the applicant points out that this nomination was prior to his attempts to deploy or permanently change the disgruntled CW5's unit of assignment.

	f.  The applicant states that he completely understands that the exact reasons for his non-selection will remain unknown.  However, the promotion board was held weeks after he had told the CW5 that he would deploy.  This resulted in the CW5 immediately obtaining a physical profile precluding his deployment.  The reasons he was given for the CW5 not wanting to deploy concerned the recent birth of their daughter and the recent custody of his son who has special needs.  He did not think his wife could handle both.  The applicant indicated he understood the CW5's family circumstances but there were other considerations. The deployment list was approved by the Deputy TJAG and the TJAG and it was the CW5's turn.  The CW5 told him that he had no clue about what he was doing and would get a non-deployable physical profile.  This should be enough to show there was at a minimum a potential bias against him when the CW5 sat on the promotion board.  As a professional, he should have disclosed this to the president of the board and a determination made at that point.  Because he did not, the applicant believes an SSB should be held.

	g.  The applicant knows the promotion statutes and regulations are different; however, this Board has the discretion to direct an SSB if there are adequate circumstances.  It is hard to put into words the level of tension between two people, but when you see it, you know it.  That is the difficulty the applicant is having with this entire process.  Without knowing either the applicant or the disgruntled CW5, it is hard to understand the level of animosity or tension.

4.  In a letter of support, dated 18 April 2014, a retired CW5 who was also nominated to sit on the subject promotion board, and who was friends with the disgruntled CW5, made the following statement:

	a.  He was extremely surprised to learn of the non-selection of the applicant for promotion to CW5.  He was very familiar with his career accomplishments, assignment histories, education levels and ratings.  While the author understands how competitive the promotion process is, he found it very surprising the applicant was not selected as the sitting CWOB.  The applicant has served in two CW5 billets and has an impeccable service record.  There was not even a close second for his selection as CWOB amongst a field of seventeen senior CW4s and CW5s from the JAG Corps.

	b.  He was troubled about the disgruntled CW5 having served on the promotion board.  He recalled negative statements made by the CW5 concerning the professionalism of the applicant and of a CW3 who had married and divorced fellow warrant officers within their career field.  Both of these individuals had failed to be selected by the same promotion board.

	c.  He states the disgruntled CW5 was very opinionated and critical of leadership.  He had spoken to the author several times about how he was poorly managed.  When the author was the CWOB, he was often questioned by the CW5 about his recommendations and direction.  The CW5 routinely felt comfortable questioning everything from assignment consideration for others, to management of force structure changes and job focus.  Often these were things well beyond his scope of responsibility.  Because of his performance in a key billet, he was reassigned to another organization.  He never received a negative report, but was placed in a position better suited to his performance.

	d.  The author states the disgruntled CW5 was never assigned to any of the three key senior billets.  The author believes that his not receiving any of these assignments along with the selection of more junior officers to these key billets fostered his discord with those officers and impacted his ability to be impartial.  Accordingly, the author has great concern that the CW5's participation in the subject promotion board may have caused harm to both the applicant and the CW3 discussed above.

	e.  The author states he has no proof; however, he believes, without reservation or doubt, that the CW5's presence on the subject promotion board impacted the selection of both officers.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that an SSB should be convened to reconsider him for promotion to CW5 because a member of the original board was biased against him.

2.  The applicant was not selected for promotion to CW5 by the April 2013 promotion board.  The information provided by the applicant and in a supporting letter from a former member of the same unit clearly shows that the relationship between the applicant and the disgruntled CW5 was not friendly.  However, the evidence is not so convincing to show that the integrity of the promotion board was compromised, or that the applicant, in particular, was disadvantaged by the mere presence of this particular CW5.

3.  In the absence of clear evidence to the contrary, it is presumed that the promotion process pertaining to the applicant was conducted in accordance with law and regulations applicable at the time and there is an insufficient basis to grant 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)                                         AR20140000948





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ABCMR Record of Proceedings (cont)                                         AR20140000948



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