IN THE CASE OF:
BOARD DATE: 5 May 2015
DOCKET NUMBER: AR20140009752
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 of the previous Army Board for Correction of Military Records (ABCMR or "Board") decision promulgated in Docket Number AR20040002517, dated 23 February 2005. In effect, he requests consideration of his records for promotion to colonel (COL) by a special selection board (SSB) under the 1994 and 1995 Reserve Component (RC) promotion criteria.
2. The applicant states:
a. The interactive Personnel Electronic Records Management System (iPERMS) official records entry dates demonstrate that key items were missing from his official records that went before the Department of the Army (DA) RC COL promotion selection boards in 1994 and 1995. Therefore, he did not receive a fair and impartial promotion review.
b. The Rhode Island Army National Guard (RIARNG) did not submit five DA Forms 67-8 (Officer Evaluation Report (OER)), three award certificates, and one mandatory military education completion document, for inclusion in his promotion consideration file (PCF) prior to the board record cut-off date; instead, they sent an incomplete record to the promotion selection board without allowing him to review it. This administrative error resulted in an injustice in that his official record was incomplete before an official promotion selection board.
3. Additionally, the applicant provides a lengthy, 6-page written statement to the Board, wherein he makes numerous contentions regarding the underlying circumstances that led to his request.
a. His request for reconsideration documents the following:
* manifest errors were made in the submission of his promotion file before the 1994 DA RC COL Promotion Selection Board; specifically, several OERs and other records were missing from his record
* since the previous ABCMR determination on 23 February 2005 (Docket Number AR20040002517), substantial and relevant new information has become available that forms the basis for this request for reconsideration
b. The current Department of Defense (DOD) policy is to let the merits of the claim be heard as a matter of precedence over procedural requirements when equity and fairness to the Soldier requires such action.
c. Since new information has become available, he returned to active duty after fifteen years of retirement and served in Afghanistan with the 10th Mountain Division from November 2010 to November 2011. If timeliness was not an issue for him to serve in Afghanistan, it should not be a barrier to this request for reconsideration.
d. The ARBA Applicant's Guide to Applying to the ABCMR, provided at TAB A, provides that "if a request for reconsideration is received more than one year after the board's original consideration..., the staff will review...to determine if substantial relevant evidence...that shows...manifest error or if substantial relevant new evidence has been discovered after the board's original decision." In his case, his official records contained numerous "material errors" when viewed by the selection boards. This new evidence is a direct result of the U.S. Army Human Resource Command (HRC)'s electronic file modernization, which came about several years after the subject promotion selection boards, and vividly displays how his relevant records contained numerous material errors.
e. The attached iPerms document list (TAB B) contains all the documents that now comprise his iPERMS official military personnel file (OMPF). The effective dates and file entry dates of his OERs, awards, and other entries are correct; however, there is a sharp contrast between the effective date and the date these documents were entered into his file. According to HRC, this is his official file and the effective and entry dates are correct.
f. Army Regulation 135-155 (ARNG and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Section Ill, paragraph 3-19 (TAB C), provides that officers "not considered for promotion through administrative error may be reconsidered for promotion...", to include those considered by mandatory promotion boards before 1 October 1996. This regulation addresses "material error" as the absence of documents including military education level completion documents, OERs, and relevant awards/decorations. By the 1 June 1994 board cut-off date, his official file lacked several key items, most notably OERs and mandatory military education completion documents. In accordance with paragraph 3-21, "officers who discover that a material error existed in their file at the time they were non-selected for promotion may request reconsideration."
(1) OERs: Four of the last six OERs (TAB D) that should have been included in his PCF were not present as of the cut-off date for the 1994 DA RC COL Promotion Selection Board. The effective date of each OER and date entered are:
* OER, effective 1994/02/23, entered into record on 1995/02/08
* OER, effective 1993/03/31, entered into record on 1994/06/12
* OER, effective 1990/06/17, entered into record on 1994/06/23
* OER, effective 1989/06/17, entered into record on 1994/06/23
* OER for 1991 and 1992 entered into record on 1994/04/21
(2) Mandatory military education completion document: Naval War College, effective 1988/06/17, entered into record on 1994/06/24;
(3) Key awards on official promotion photo without documentation:
* DA Staff Identification Badge, entered into record on 2013/01/23
* Joint Staff Identification Badge, entered into record on 1995/07/05
* Special Forces Tab, entered into record on 2011/10/07
(4) His Reserve Component Special Forces Qualification Course training certificate was not in his official file;
(5) He was not provided an opportunity to review his 1995 DA RC COL Promotion Selection Board file, therefore he is unsure what documents the RIARNG submitted, what documents were present in his PCF, and what documents were missing and may have constituted a material error.
g. In the original case, the Board determined he had not satisfactorily shown that his records were not complete and contained material error. In addition, his evidence did not demonstrate the existence of a probable error or injustice. His original request was based on the existence of false adverse information in his official file or PCF.
h. After the ABCMR denied his first case, he immediately applied for a copy of his official records. Understanding the one-year time limit to provide relevant new information, he called the National Personnel Records Center (NPRC) repeatedly for his records; however, the NPRC was unable to locate his records. In their 30 January 1996 response letter, they informed him that his official file could not be located but they would continue searching for it.
i. Without his record and based on the ABCMR Record of Proceedings, he concluded that his record was incomplete; however, he needed his official file to prove it. With his official file misplaced, he decided to send his own copy to the ABCMR for reconsideration based on an assumption that his official file was incomplete. The ABCMR rejected this reconsideration.
j. Meanwhile, he continued to request his records and in late 2008, he received a paper copy from the NPRC. However, these records were identical to what he had previously sent to the ABCMR in his first case. More importantly, they contained no certification as to the date they were actually entered into his official record.
k. This file was incomplete, so he began the process of entering missing items as well as ascertaining the actual file entry dates. During 2009, he volunteered to assist the Army as a retiree recall. In 2010, in his application for active duty, he had to review his file on the new HRC iPERMS website. He immediately noticed that the entry dates for many documents were much later than their effective date.
l. Before going to Afghanistan, he again sent a request to the ABCMR for reconsideration; however, the ABCMR would not reconsider and informed him to "seek relief in a court of appropriate jurisdiction." He requested the assistance of his Congressman and sought advice from an attorney. For three years, his Congressman has been attempting to get him a fair review. An attorney advised him about Title 10, U.S. Code, section 14502, and stated the best any court could do is ask the Army for a promotion review board. Recently, he sought further advice from several sources as to what action he should undertake. His Congressman's office, the National Guard Bureau (NGB), and the Army Office of The Judge Advocate General (OTJAG) all assured him that the ABCMR attempts to seek fairness and equity, so he should reapply for reconsideration.
m. He is responsible for the correctness of his official file. As an Active Guard Reserve (AGR) officer in the ARNG, he earned early unit vacancy promotions to the ranks of major (MAJ), lieutenant colonel (LTC), and COL; however, his promotion to COL did not occur because his official record caretakers did not enter several items into his record. From 1983 to 1994, he assumed the caretaker of his official records, the RIARNG, was forwarding all of his OERs, awards, and education documents for inclusion in his OMPF. At no time was this ever an issue until January 1994, when the RIARNG challenged his Special Forces qualifications. They opined that he was not qualified based on their misinterpretation of Special Forces qualifications.
n. In March 1994, the Special Forces proponency dismissed the RIARNG assertion by certifying that he completed a valid RC Special Forces Qualification program of instruction in accordance with Army Regulation 672-5-1 (Military Awards). For qualification, he was assigned to a National Guard Special Forces team, completed unit training, attended exercises, and earned the additional skill identifier (ASI) 5G, as shown his DA Form 2-l (Personnel Qualification Record Part II). He then transferred to the Massachusetts ARNG (MAARNG) and the RIARNG sent his records to the MAARNG without any evidence that he ever completed any Special Forces training. This resulted in grave misinterpretation of his qualifications and integrity at the COL level.
o. The RIARNG sent his microfiche to the 1994 DA RC COL Promotion Selection Board without notifying him to review his record prior to the board. Since he was transferring into the MAARNG and they were about to promote him, he did not concern himself with the upcoming DA RC COL Promotion Selection Board. In addition, he was not given the opportunity to review his file for the 1995 DA RC COL Promotion Selection Board.
p. The RIARNG appears to have either misplaced or delayed the entry of several OERs, military training and education completion documents, and military awards. Further, in October 1994, the RIARNG contacted the MAARNG adviser to assert that he was not Special Forces qualified and he was wearing awards he was not entitled to wear, because they never entered the Special Forces training he completed into his record.
q. For the 1994 DA RC COL Promotion Selection Board, numerous files were missing from his record. For the 1995 DA RC COL Promotion Selection Board, his most current OER and award orders were absent from his PCF; somehow, the RIARNG submitted his file to the 1995 promotion selection board as they did for the 1994 board. The RIARNG's management of his file, that is, not entering any Special Forces training and awards, delaying entry of OERs and mandatory schooling, was legal but cleverly unfair. This administrative unfairness resulted in attacks against his integrity and denial of promotion. Despite the passage of much time since these events occurred, the fact remains that due to clear administrative mistakes he did not receive fair and impartial promotion reviews because of the missing file items. At the time of the events, his records were open to the RIARNG, MAARNG, NGB, and the Army. Even with the correcting efforts of the NGB and MAARNG, he did not receive a fair and impartial promotion review by the DA RC COL Promotion Selection Board.
r. His complete file show the following items occurred based on his performance.
* In November 1993, the NGB Tour Advisory Board selected him for below-the-zone promotion to COL
* In October 1994, based on NGB's recommendation and unit vacancy authorization, the MAARNG promoted him to COL this promotion did not receive federal recognition as the DA RC COL Promotion Selection Board took precedence
* In August 2010, the 10th Mountain Division selected him as a Retiree Recall based on the strength of his last six OERs
s. Based on equity and fairness, he requests the ABCMR grant his request for reconsideration and allow him to be reconsidered for promotion to COL by an SSB, so he can be considered for promotion to COL with his official record, as it should have been at the time of the previous DA selection boards. If his request receives approval and an SSB selects him for promotion, he only request fair treatment in accordance with regulations.
3. The applicant provides:
a. TAB A a 2-page extract of an ABCMR publication titled "Applicant's Guide to Applying to the ABCMR";
b. TAB B a listing of documents contained in his iPERMS OMPF;
c. TAB C a 3-page extract of Army Regulation 135-155 addressing portions of chapters 3 and 4;
d. TAB D his OERs covering the periods 880618890617, 890618900617, 900618910617, 910618920331, 920401930331, 930401940223, 940224950223, and 950224960131; an extract of Army Regulation 135-155; his diploma from the United States Naval War College; his DA Staff Identification Badge award certificate; his Joint Staff Identification Badge award certificate; and Permanent Orders Number 54-1, issued by the United States Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, North Carolina on 29 April 1987;
e. TAB E an extract of the Record of Proceedings in ABCMR Docket Number AR20040002517, dated 23 February 2005;
f. TAB F a letter from the National Personnel Records Center (NPRC), St. Louis, Missouri, dated 30 January 2006, and a letter from the Case Management Division, Army Review Boards Agency (ARBA), dated 17 March 2011;
g. TAB G a memorandum from the USAJFKSWCS, Fort Bragg, North Carolina, dated 24 March 1994, an extract of Army Regulation 672-5-1 (Military Awards), a copy of his DA Form 2-1, a memorandum from the Office of the Senior Army Advisor to The Adjutant General (AG) of the MAARNG, dated 27 October 1994, and memoranda from the U.S. Total Army Personnel Command (TAPC), St. Louis, Missouri, dated 14 October 1994 and 16 October 1995, subject: Notification of Promotion Status; and
h. TAB H - a memorandum from the Office of the AG, MAARNG, to the Governor of the State of Massachusetts, dated 23 August 1994, subject: Officer Promotion, MAARNG; NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 21 December 1994; and Orders M-11-000954, issued by HRC, Fort Knox, Kentucky on 4 November 2010.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040002517, dated 23 February 2005.
2. The applicant provides numerous documents in support of his new argument and allegation of material error. These items are considered new evidence not previously considered by the Board; therefore, this new evidence will now be considered by the Board.
3. Following prior enlisted service, the applicant was appointed as a commissioned officer in the Regular Army, as a second lieutenant in the infantry branch, effective 6 June 1973. He served in positions of increased responsibility and attained the rank of captain (CPT). He was honorably discharged on or about 4 May 1979.
4. He was appointed as a Reserve commissioned officer of the Army, as a CPT in the infantry branch, on or about 7 July 1979, effective 9 May 1979.
5. He was appointed as a CPT in the MAARNG effective 4 August 1979.
6. He was appointed as a CPT in the RIARNG effective 15 March 1981.
7. He entered active duty with the RIARNG effective 1 June 1983.
8. He was promoted to MAJ effective 17 July 1984 and to LTC effective 15 August 1990.
9. He was appointed as an LTC in the MAARNG effective 5 August 1994.
10. He was considered for promotion to COL by the 1994 DA RC COL Promotion Selection Board that convened on 19 July and recessed on 19 August 1994. The Secretary of the Army approved the results on 19 October and they were released on 17 November 1994. He was not selected for promotion to COL by this promotion selection board.
11. He was again considered for promotion to COL by the 1995 DA RC COL Promotion Selection Board that convened on 18 July and recessed on 16 August 1995. The Secretary of the Army approved the results on 30 September and they were released on 2 November 1995. He was not selected for promotion to COL by this promotion selection board.
12. He was separated from active duty, discharged from the ARNG, and transferred to the USAR Control Group (Retired Reserve) by reason of sufficient service for retirement, effective 31 January 1996. He was placed on the Retired List, in the rank of LTC, effective 1 February 1996.
13. He reentered active duty as a Retiree Recall on 7 November 2010, served in Afghanistan from 29 November 2010 through 14 September 2011, and was honorably retired on 6 November 2011. He was returned to the Retired List, in the rank of LTC, the following day.
14. He provides numerous documents he contends were missing from his OMPF and/or PCF when he was considered for promotion to COL in 1994 and 1995, which he contends constituted a material error at that time. These documents include multiple OERs, his Naval War College diploma, award certificates, and orders that awarded him the Special Forces Tab. He does not address actions he took to ensure the completeness of his PCF prior to the convening of each board.
15. In the processing of this case, on 28 August 2014, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB, who recommended approval of the applicant's request for relief in the form of consideration for promotion by a Special Selection Board (SSB).
a. The applicant was non-selected for promotion to COL by DA boards in 1994 and 1995. He was not aware that his State AG submitted an incomplete
file until years later; he was not given the opportunity to review it prior to the board because he was serving in an AGR status in Washington, DC at the time.
b. The applicant's board file in 1994 was missing four OERs. In 1995, three of the four missing OERs from the 1994 board were added to his file; however, one was still missing. In addition, the most current OER from 1995 was not added to his file, resulting in two missing OERs in his 1995 board file.
c. The applicant, not knowing the reason for his non-selection, previously petitioned the ABCMR for reconsideration based on the assumption that there was adverse and erroneous information in his promotion consideration file. This previous ABCMR case was denied because of the lack of supporting information to determine an injustice occurred.
d. In 2010, after being activated for a deployment, the applicant was able to view his Army Military Human Resources Record (also known as the OMPF); at which time he noticed the entry dates pertaining to his OERs were after the promotion board cut-off dates, which means they were not included in his promotion consideration files. The absence of these documents likely caused his non-selection.
e. Army Regulation 135-155 supports the applicant's request for promotion reconsideration.
(1) Paragraph 3-19a provides that "officers and warrant officers who were either non-selected 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."
(2) In the applicant's case, he can be reconsidered for promotion by a Promotion Advisory Board, which according to paragraph 3-19a(1), "Promotion Advisory Boards...Reconsider commissioned officers (other than commissioned warrant officers) who were either non-selected or were erroneously not considered for promotion by a mandatory promotion board convened before 1 October 1996."
(3) Paragraph 3-19c provides, in part, that "these boards are convened to
correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records - (2) contained a material error when reviewed by a mandatory selection board."
(4) Army Regulation 135-155 defines a material error 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."
(5) Among material errors is "one or more evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF."
(6) In addition to the missing OERs, the applicant's military education completion certificate was also missing from the 1994 board file. Army Regulation 135-155, paragraph 3-19e(8), provides that a material error can result when "an officer's military or civilian educational level...as constituted in the officer's record (as seen by the board) was incorrect."
16. The advisory opinion was forwarded to the applicant for acknowledgement and/or possible rebuttal on 29 August 2014; however, he did not respond.
17. Army Regulation 135-155, the regulation in effect at the time, prescribed the policies and procedures for the selection and promotion of commissioned officers of the ARNG of the U.S. (ARNGUS) and USAR.
a. Paragraph 2-8 (Consideration for Promotion to COL) provided that selection boards would be convened at the discretion of the Secretary of the Army and consider ARNGUS and USAR officers, in all branches, for promotion to COL. Such boards would consider and recommend only those officers in an active status.
b. Paragraph 3-3 (Furnishing Records) provided that selection boards would be provided a PCF for each eligible Soldier, containing the performance portion of the OMPF (microfiche) containing the officer's OERs, Academic Evaluation Reports (military education completion documents), commendatory information, and any disciplinary information (if present).
c. Paragraph 3-4 (Notice of Consideration) provided that the Chief, NGB and the Chief, Office of Promotions (RC) would notify each ARNGUS and USAR officer in the zone of consideration by a mandatory selection board. A copy of the officer's records to be reviewed by the selection board would accompany the notification. Officers were directed to review the records and submit copies of missing documents or other corrections to the State AG or the Chief, Office of Promotions (RC), as appropriate. However, the lack of notification to an officer did not provide an independent basis for the officer to be considered by an SSB.
d. Paragraph 3-10 (Individual Communications with the Board) provided that no officer was authorized to appear in person before a board on his or her own behalf. However, an officer under consideration could write to the selection board inviting attention to any matter of record deemed vital to their consideration. Any written communication to the selection board would become a matter of record and would be maintained in the board records for 1 year.
e. Paragraph 3-14 (Standby Boards) provided that Standby Advisory Boards (STAB) would be convened when necessary to prevent any injustice to an officer or former officer who was eligible for promotion but whose record, either through error or omission:
* was not submitted to a promotion selection board for consideration
* contained a material error when reviewed by the selection board
f. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individuals non-selection by a promotion selection board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.
g. Selection boards were not required to itemize or record the reasons for their selection or non-selection; therefore, unless an officer had not completed the military educational requirements necessary for promotion to the next higher grade (COL), the specific reasons for non-selection cannot be determined.
18. Military Personnel (MILPER) Messages are official messages designed to provide guidance to the field; specifically, to those Soldiers affected by the content of the message.
a. With respect to officer promotions, MILPER Messages are published well in advance of the convene date of a given promotion selection board, in this case, the 1994 and 1995 DA RC COL Promotion Selection Boards, to provide very specific information and instructions related to the conduct of selection boards.
b. Included in each MILPER Message are the eligibility criteria for those officers in the zones of consideration and instructions pertaining to the submission of written correspondence to the board and the inclusion of missing documents not contained in the OMPF.
c. The MILPER Messages that announced the 1994 and 1995 DA RC COL Promotion Selection Boards are not available for review.
19. The composition of the applicant's OMPF or PCFs prior to the 1994 and 1995 DA RC COL Promotion Selection Boards is unknown and these files are unavailable for review. Therefore, there is no way to determine the exact composition of the applicant's official record at the time. Similarly, there is no way to determine which documents, missing from the applicant's OMPF at the time, may have resided in hard-copy in his PCF when either of the two subject boards convened (emphasis added).
20. There is no evidence and the applicant failed to provide evidence that shows he exercised due diligence by reviewing his OMPF and PCF prior to either the 1994 or 1995 DA RC COL Promotion Selection Boards. Likewise, there is no evidence and the applicant has failed to provide evidence that shows he forwarded any missing documentation, including his OERs, military education completion documents, and award certificates, through his State AG to the U.S. Total Army Personnel Command for inclusion in his PCF (emphasis added).
21. Black's Law Dictionary (6th Edition) defines the doctrine of laches as the "neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity."
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for reconsideration for promotion to COL by an SSB under the 1994 and 1995 RC promotion criteria, due to material error, was carefully considered.
2. He was considered for promotion to COL by the 1994 and 1995 DA RC COL Promotion Selection Boards; however, he was not selected for promotion by either of these boards. He contends the absence of several key documents from his PCF constituted a material error that adversely affected his promotion selection. Unfortunately, the passage of time has greatly diminished the amount of evidence available for review in this case.
3. The composition of his PCF prior to either the 1994 or 1995 DA RC COL Promotion Selection Boards is unknown and these files are unavailable for review. Therefore, there is no way to determine the exact composition of the applicant's official record at the time. Without this evidence, there is no way to definitively determine that a material error existed when either of the two subject boards convened.
4. The absence of certain documents from his OMPF does not necessarily constitute a material error vis-à-vis his PCF. Options existed for the submission of hard-copy documents not present in his OMPF, so that these documents could be viewed by promotion board members (emphasis added). In the applicant's case, there is no way to determine which missing documents may have been furnished in hard-copy and; therefore, may have been present in his PCF when either of the two subject boards convened. Consequently, material error cannot be proven.
5. As is true with every Army promotion board, the Soldier being considered bears primary responsibility for the content, or lack thereof, of his or her PCF. In this case, the applicant has failed to address the actions he took to ensure the completeness of his PCF prior to the convening of each board.
6. The doctrine of laches is defined by Black's Law Dictionary as the neglect to assert a right or claim which, taken together with the passage of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.
7. Notwithstanding the advisory opinions put forth by the NGB, it has been over 20 years since the applicant was considered by either of the two subject promotion boards. Available records are inadequate to confirm or deny the applicant's contention that his records were incomplete and the absence of key documents constituted a material error when reviewed by either of the two subject promotion boards. Documents missing from his OMPF may have been present and considered in hard-copy.
8. Due to the passage of time, pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.
9. Based on 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040002517, dated 23 February 2005.
____________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) AR20140009752
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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