IN THE CASE OF:	  

		BOARD DATE:	8 May 2014  

		DOCKET NUMBER:  AR20140004464 


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 638 (Recommendation for Award), which awarded him the Meritorious Service Medal (MSM) (6th Award), was filed in his Army Military Human Resource Record (AMHRR) prior to 12 August 2013, the date the Fiscal Year 2013 (FY13) Lieutenant Colonel (LTC), Judge Advocate General’s (JAG) Corps, Promotion Selection Board convened.

2.  The applicant further requests a special selection board (SSB) for promotion to LTC, based on his contention that the subject award was not in his AMHRR when the FY13 LTC JA Promotion Selection Board convened.

3.  The applicant states:

* he was made aware of the award in January 2014 and did not have the opportunity to bring it to the attention of the board, since it occurred after the date the board convened
* it was an administrative deficiency; it may or may not have had a material impact on the promotion board's decision – he simply cannot say
* its absence could have been seen by the board as an indicator of a deficiency in light of his prior pattern of awards throughout almost twenty years of service
* he had no means to tell the board in advance, and he would have if he knew the award existed
* he asks that the award be filed in his AMHRR and he be granted an SSB and the benefit of the doubt
4.  The applicant provides:

* DA Form 638, incorporating Permanent Orders Number 150-026, issued by Headquarters, U.S. Army Medical Command (MEDCOM), Fort Sam Houston, TX, on 26 June 2013
* DA Form 4980-12 (MSM Certificate), dated 22 May 2013
* an email string between the applicant and a member of the Department of the Army (DA) Promotions Branch at the U.S. Army Human Resources Command (HRC)

CONSIDERATION OF EVIDENCE:

1.  On 14 May 1990, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (2LT).

2.  On 29 September 1994, he entered extended active duty.  He was appointed in the Regular Army on an unknown date.

3.  On 1 June 2002, he was promoted to major (MAJ).

4.  On 23 January 2009, he was notified that he had been non-selected for promotion to LTC by the FY08 LTC JA Promotion Selection Board; however, he was recommended for selective continuation for a 3-year period and the Secretary of the Army approved that recommendation. 

5.  It appears he was non-selected by each subsequent fiscal year LTC JA Promotion Selection Board, up to and including the FY13 board.

6.  Order 052-1113, issued by Headquarters, U.S. Army North (Fifth Army), Joint Base San Antonio, Fort Sam Houston, TX on 21 February 2014 announced his retirement from active duty effective 31 March 2014, in the rank of MAJ.

7.  On 31 March 2014, he was honorably retired from the Army after 20 years of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated by reason of non-selection, permanent promotion; however, since he had completed over 20 years of active service, he was retired.  

8.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the MSM (6th Award); however, this award does not appear elsewhere in his records.

9.  He provides an email string between himself and a member of the DA Promotions Branch at HRC.  In this exchange, the applicant advances his belief he should be entitled to an SSB because his MSM (6th Award) was delivered to him a year after it was approved and was not filed in his AMHRR when the board convened.  The HRC official noted he was non-selected for promotion at least 7 times and referred his request to the Army Board for Correction of Military Records (ABCMR).

10.  On 2 April 2014, in the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Special Actions, HRC, wherein the advisory official recommended disapproval of the applicant's request for relief.  The advisory official noted that Army Regulation 600-8-29 (Officer Promotions), paragraph 7-3 (Cases Not Considered) prohibited granting reconsideration for promotion by an SSB on the basis of an award(s), below the Silver Star, that was missing or not included in a Soldier's AMHRR.

11.  On 15 April 2014, the applicant was provided a copy of the advisory opinion for acknowledgement and possible comment or rebuttal.  He responded to the advisory opinion, stating he stood by the comments contained in his application to the Board.

12.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  It applies to officers in the Regular Army, the ARNG, and USAR officers on an active duty list.  Chapter 7 governs SSBs.  Paragraph 7-3 provides that an officer will not be considered or reconsidered for promotion by an SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's AMHRR. 

13.  Army Regulation 600-8-29 defines a material error as being of such a nature that, in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show his              DA Form 638, which awarded him the MSM (6th Award), was filed in his AMHRR prior to 12 August 2013, the date the FY13 LTC JA Promotion Selection Board convened.  He further contends he should be granted an SSB based on the absence of the subject award from his AMHRR when the board convened.
2.  Army Regulation 600-8-29 prohibits consideration or reconsideration for promotion by an SSB when awards below the Silver Star are missing from an officer's AMHRR.  Further, since the applicant had already been nonselected for promotion a number of times, in this time of downsizing it does not appear that filing a 6th award of the MSM in his records would have resulted in a reasonable chance that he would have been recommended for promotion.

3.  In view of the foregoing, there is an insufficient basis 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 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)                                         AR20100000119



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ABCMR Record of Proceedings (cont)                                         AR20140004464



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