IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014  	  

		DOCKET NUMBER:  AR20140007885 


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 by a special selection board (SSB) for promotion to lieutenant colonel (LTC)/O-5 under the 2005 and 2006 criteria
* if his request is granted, reinstatement on active duty and immediate consideration by an SSB for promotion to colonel (COL)/O-6 in the primary zone

2.  The applicant states:  

	a.  He is requesting an “expedient” reconsideration by an SSB to LTC with focused consideration of the unjust administrative and systemic damage to his personnel record and promotion history.  The recently convened 2013 SSBs for his initial 2005 and 2006 promotion to LTC did not consider the corrective action and impact of his adjusted record of 2002.  Had the SSBs considered the 2002 adjustment from the Army Board for Correction of Military Records (ABCMR), "his records would have been promotable." 

	b.  The promotion rate for chaplains to LTC in 2005 and 2006 was nearly 80 percent.  Had he been properly promoted to major (MAJ) in 1999, he would have had the assignments and ratings to successfully compete with his peers.  Therefore, the SSB succumbed to the original, “yet once corrected,” injustice to his Army career.

	c.  In 1998, he received an unsatisfactory officer evaluation report (OER) from a GS-12 with whom he had experienced a conflicted relationship.  After two nonselects to MAJ, he was involuntarily separated from the active duty for about 15 months.   In July 2002, the ABCMR determined the report contained a reprisal, substantive errors, and was improperly administered.  In January 2003, he was retroactively promoted to MAJ effective 1 November 1999 and he was returned to active duty.  The nearly 4-year delay in O-4 positions and ratings resulted in a less-than-competitive record.  In 2005 and 2006, he was in the primary zone for consideration for promotion to LTC and was "reportedly" nonselected during these two looks.  

	d.  His "nonselects" continued for some years thereafter.  After he was nonselected in 2011, he contacted the U.S. Army Human Resources Command (HRC) and inquired of a chance for a relook in lieu of the initial delay for career opportunity and ratings.  His inquiry uncovered the fact that he actually never received a look during either the 2005 or 2006 LTC boards.  This resulted in the opportunity in June 2012 for an initial look for LTC for both 2005 and 2006 by an SSB.  

	e.  He was still concerned that the 4-year setback in O-4 positions and ratings would impact the SSB.  He contacted HRC and was told that any ABCMR actions would be in full view of the SSB.  ABCMR had directed that the 2002 correction should not prejudice his records.  The SSB actions took 19 months, the board convened in 2013, and he did not receive notification that he was nonselected by both SSBs until January 2014.  His mandatory removal date (MRD) from active duty was 31 May 2014.

	f.   On all of his OERs throughout his career he was rated as "best qualified" and "outstanding performance, must promote" and all of his ratings were satisfactory.  With completion of the Command and General Staff College (CGSC) and a comprehensive assignment record as shown on his Officer Record Brief (ORB), his record was competitive except for the very notable 
4-year gap in O-4 positions/ratings and his glaring 15-month break in active duty service.  If his record had not been initially corrupted by an unjust rating, 
15-month break in service, a 4-year disruption in MAJ positions/ratings, and the erroneous exclusion from primary zone boards in 2005 and 2006, he may have been promoted to LTC 8 years ago and then entered the promotion zone for COL (emphasis added).

	g.  For his recent SSBs, HRC was to reconstruct his record according to the 2005/2006 criteria.  Also, he should have received the consideration afforded to his peers during that time period which included a robust promotion rate.  HRC's policy is to convene SSBs within 120 days; however, his records were not boarded until well over a year.  He appeals his nonselection by the SSBs for the reasons stated above and it is based solely on his testimony listed here and supported by his record and enclosures.

3.  The applicant provides:

* his ORB, dated 17 April 2014
* five pages of email, dated between 12 June 2012 and 6 January 2014
* five memoranda, one undated and four dated between 19 June 2002 and 30 October 2013
* DA Form 1059 (Service School Academic Evaluation Report (AER)) for the rating period 1 July 1997 to 12 June 1998
* a letter, undated
* one page of ABCMR Report of Proceedings (ROP) AR2001064528

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) first lieutenant in the Chaplain (CH) Branch and he entered active duty on 23 March 1992.  He was promoted to the rank/grade of captain (CPT)/O-3 on 1 December 1992 

2.  He was considered for promotion to MAJ by promotion boards in March 1999, March 2000, and April 2001 and was not selected.  As a consequence, he was released from active duty on 1 January 2002 and transferred to the USAR.

3.  On 30 May 2002, the ABCMR granted his request to correct his records by removing an AER covering the rated period 1 July 1997 through 12 June 1998 from his Official Military Personnel File (OMPF) that was found to be unjust and in error and placed a statement in his record to show this period as non-rated time without prejudice.  The Board also granted him reconsideration for promotion to MAJ by an SSB in the primary zone under the 2000 and 2001 criteria and directed that if he was selected for promotion, he would be returned to active duty and promoted with entitlement to back pay and allowances.

4.  On 10 January 2003, he was notified he had been selected for promotion to MAJ by an SSB under the same criteria and instructions established for the regularly-constituted selection board that recessed on 23 June 1998.  He was subsequently returned to active duty and promoted to MAJ in the Regular Army with an adjusted date of rank (DOR) to MAJ of 1 September 1999.

5.  In or around 2012, he submitted a request to HRC requesting reconsideration by an SSB for promotion to LTC under the 2005 and 2006 criteria.  The applicant provides a memorandum, dated 27 June 2012, wherein HRC notified him he would be considered for promotion to LTC by an SSB under the criteria established for the FY05 and FY06 LTC CH regularly-constituted promotion board.  This memorandum also stated SSBs are not projected and are not scheduled promotion boards.  They are convened by the Department of the Army's Secretariat (DASEC) at the earliest date possible, normally at the end of regular scheduled boards provided the correct membership is available.

6.  The applicant also provides:

	a.  A memorandum, dated 30 October 2013, wherein HRC notified him he was considered for promotion by an SSB (AS1304-01) to LTC under the FY05 criteria and he was not selected for promotion.

	b.  A memorandum, undated, wherein HRC notified him he was considered for promotion by an SSB (AS1305-01) to LTC under the FY06 criteria and he was not selected for promotion

7.  On 31 May 2014, he was retired in the rank of MAJ by reason of being nonselected for promotion and he was placed on the Retired List on 1 June 2014.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 22 years, 2 months, and 8 days of creditable active service. 

8.  In the processing of this case an advisory opinion was obtained from the Chief, Officer Promotions, HRC on 18 June 2014.  The advisory official recommended denial of the applicant's request to be reconsidered by an SSB for promotion consideration to LTC and opined, in part, that:

	a.  Based on a review of records, the applicant's request does not have merit.  The DASEC's recent recovery of the archived FY05 and FY06 CH promotion selection board reports (PSB) confirmed the applicant was considered fully eligible at the time of the original scheduled boards.

	b.  The FY05 LTC CH PSB that convened on 22 February 2005 considered the applicant for promotion below the zone and he was not selected.  In accordance with Title 10, U.S. Code (USC), section 628, and Army Regulation 600-8-29 (Officer Promotions), an SSB will only reconsider an officer from in or above the zone, and is not to consider/reconsider an officer from below the zone.  Officers not selected from a below the zone look do not incur a failure of selection for promotion.  Therefore, SSB AS1304-01 was mistakenly conducted.


	c.  The FY06 LTC CH PSB that convened on 7 February 2006 considered the applicant for promotion in the zone and he was again not selected.  It was determined the applicant viewed and certified his My Board File (MBF) as correct proving he was aware of the ongoing board contrary to his statement.  All promotion selection board military personnel (MILPER) message announcements reminds and affords all officers of the opportunity to view and correct any deficiencies in their OMPF.  This also allows any officer to submit correspondence to the president of the board to address any issues he/she feels is important during promotion consideration.  Failure to do so does not constitute material unfairness or a material error.  The applicant failed to take advantage of this opportunity.

	d.  SSBs AS1304-01 and AS1305-01 were done in error and should not have occurred.  The applicant was the benefactor of this error when he received an additional reconsideration for two promotion boards for which he was not entitled.  Even in error, the applicant was given the opportunity to address any issues he felt were important but he failed to take advantage of this opportunity.

	e.  Army Regulation 600-8-29 states promotion selection boards will base their recommendations on impartial consideration of all officers and an SSB will consider the record of the officer as it should have been considered by the original board.  The applicant refuses to accept the results of all of his PSB and SSBs nonselected results and continues his belief that he was disadvantaged because an earlier SSB selected him for promotion to MAJ and adjusted his DOR from 2002 to 1999.

	f.  Email traffic indicates the applicant requested the selection rates from HRC in April 2014.  He contends the selection rates for the FY05 and FY06 LTC CH boards were around 80 percent but this percentage he quotes is grossly exaggerated.  The exact reason(s) for the applicant's nonselection for promotion by the original boards and the SSBs are not known because statutory requirements prevent disclosure of board proceedings.  It can only be concluded the boards determined the applicant's overall record when compared with his peers did not reflect as high a potential as those selected for promotion. 

9.  A response to the advisory opinion was received from the applicant on 18 June 2014.  He stated:

	a.  The advisory opinion stated the recent recovery of information proved he did receive a primary zone look on the FY05 and FY06 LTC boards and he was aware of this fact.  This is misleading regarding his initial request to HRC for an SSB and this revelation was news to him and may present an adjusted scenario for his request.  It was HRC who in June 2012 determined his records were overlooked during the FY05 and FY06 boards and at the time he did not remember that he certified his MBF 7 years prior.  It was HRC's error that subsequent SSBs were conducted, not his.

	b.  When he inquired about promotion rates, he never received an answer from HRC and he searched for rates from other branches and relied on the memories of his peers.  He believes a fair analysis of his overall record which includes a fair discernment of the handicapped period of 1999 to 2003 would position his promotional review in the top 50 percent.

	c.  Throughout his career, he embraced the counsel not to tamper with a promotion board because to do so may set up an injustice for himself or others.  In 2012, after he requested an SSB he talked to an individual at HRC who related any ABCMR actions would be before the board.  His understanding from this was a letter to the president of the board would not have been necessary.

	d.  In view of the fact that the advisory opinion offered flaws in his request, he questions HRC's neutrality in packaging and communicating his request for the SSB.  Were members of the SSB aware that this was a board "for which he was not entitled?"  Again, the board should have been conducted within 120 days but it was not conducted until the end of 2013.

10.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Chapter 7 provides that SSBs may be convened to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers:   (a)  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required), (b)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary), and (c)  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should go before an SSB for promotion consideration to LTC because if not for a break in service, a 4-year disruption in being assigned to MAJ positions, and the exclusion from promotion boards in 2005 and 2006 he may have been selected for promotion.  
2.  The evidence of record confirms the applicant was initially considered for promotion by the FY05 and FY06 LTC CH promotion selection boards and was nonselected by both boards.  In addition, due to HRC's error he was reconsidered for promotion to LTC by two separate SSBs based on the FY05 and FY06 criteria, respectively, and he was again nonselected for promotion.

3.  Promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The applicant has not provided any evidence that shows a material error existed in his records that would meet the criteria for consideration by an SSB; rather, he stated it was his belief that the boards may have been unfairly influenced by his adjusted DOR to MAJ. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting his 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)                                         AR20140007885





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ABCMR Record of Proceedings (cont)                                         AR20140007885



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