IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014	  

		DOCKET NUMBER:  AR20140013232 


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 for promotion or consideration by a special selection board (SSB) for promotion to colonel (COL) by the Fiscal Year 2013 (FY13) COL Maneuver, Fires and Effects (MFE), Operational Support (OS), and Forces Sustainment (FS) Promotion Selection Board.

2.  The applicant states this request is due to unintentional personnel action errors.   She states: 

	a.  She requests the Board direct the U.S. Army Human Resources Command (HRC) to convene an SSB to allow her to compete for promotion to COL as a Logistics officer.  This would correct a branch transfer decision to Functional Area (FA) 59 (Strategist) she made without knowledge of the facts and promotion risks she was incurring; a decision she would not have made had HRC advised her of the risks.  She is fully aware that even if the Board grants her request, an SSB might not select her for promotion, but it would at least give her a fair chance to compete and the ability to continue her service to the Army.

	b.  Her initial interest in transferring to FA 59 was after serving as a White House Fellow and as a Branch Chief, Politico Military Planner and Operations and Plans officer on the Joint Staff.  Senior officers encouraged her to change to FA 59 and counseled her that successful battalion command would make her a better FA 59 Officer and more competitive for promotion to COL.  The Force Sustainment Division Chief at HRC advised her that if she wanted to remain on the command list, she should defer her transfer request until after taking command.  With this senior leader endorsement and counsel from her assignment officer, she deferred her request to branch transfer until she arrived in Korea, ultimately submitting that request on 14 July 2011.  She made this decision with the full confidence it was in the best interests of the Army, followed the valued advice of her chain of command and the Logistics/Force Sustainment assignment team, and that her experience in strategy/policy duty positions and as a battalion commander would make her a valuable asset to the Army as an FA 59 (Strategist).

	c.  On 11 July 2014, she received copies of HRC's internal staffing documents with recommendations on her application to transfer to FA 59.  These documents highlight that while Logistics branch concurred with her request, the FA 59 Assignment Officer, Operations Support Branch Chief, Operations Support Division Chief, Retention Program Manager, Chief of Leadership Development Division, and Chief of Officer Personnel Management Directorate (OPMD) all recommended disapproval.  They noted FA 59 was 136 percent strength for her year group, that she did not have requisite experience, and that she would not be able to meet the requirement prior to her primary zone consideration for COL.  Had she known these facts, the inherent promotion risks, and how FA 59 interpreted the requirements for 59A positions, she would have withdrawn her request for a branch transfer.  She is also confident that if her chain of command had been aware of these facts, they would have counseled her to remain a Logistics officer as well and withdrawn their recommendation for approval.

	d.  She is not looking to blame any person or organization for her non-selection for promotion.  She is only asking for an opportunity to compete on a level playing field under the conditions that would have existed had she been fully aware of the facts and remained a Logistics officer.  She believes an SSB that evaluates her file as a Logistics officer will give her that opportunity.

3.  The applicant provides:

* A waiver statement for SSB consideration by HRC
* Statement of support from the Deputy Chief of Staff, G-3
* DA Form 4187 (Personnel Action)
* Year Group 92 Order of Merit List (OML)
* HRC Branch/Functional Transfer recommendations
* Email from the Commanding General (CG), HRC
* Approval of branch transfer
* Military Personnel Message 14-205, dated 25 July 2014, Subject: Selective Early Retirement Board (SERB), LTC Operations (OS), Operations Support (OS), and Force Sustainment (FS) and accompanying slides and frequently asked questions sheet

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Regular Army commissioned officer of the Army and executed an oath of office on 15 January 1993.  She completed the Ordnance Maintenance Management Officer Basic Course. 

2.  She served in a variety of stateside or overseas assignments and she was promoted to lieutenant colonel (LTC) on 1 July 2009. 

3.  On 14 July 2011, she requested a branch transfer from area of concentration (AOC) 90A (Logistics) to FA 59.  Her chain of command recommended approval. 

4.  The AOC losing branch Assignment Officer, Branch Chief, and Division Chief recommended approval.  However, the gaining branch Assignment Officer, Branch Chief, and Division Chief recommended disapproval.  Additionally, the Retention Program Manager, Deputy of Leader Development Division, and Chief of Leader Development Division, all recommended disapproval. 

5.  On 30 August 2011, the Deputy Director, Officer Personnel Management Division, recommended approval.  She was ultimately approved for a branch transfer to FA 59. 

6.  She provides a statement from the Deputy Chief of Staff, G-3, 

	a.  He reviewed and fully supports the applicant's request for an SSB to reconsider her non-selection for promotion by the FY13 MFE, OS, and FS PSB.  He recommends the Board direct HRC to convene an SSB and allow her to compete for promotion as a Logistics officer and not as an FA 59 as was the case for the FY13 promotion board.

	b.  HRC internal records from 2011 indicate she was incurring significant promotion risk by transferring into FA 59 without the desired FA 59 experience in her file.  These records also indicate FA 59 was at 136 percent strength for her year group and both FA 59 branch managers and other key leaders within OPMD recommended disapproval of her request.  Had she been aware of these risks, she informed him that she would have withdrawn her request to branch transfer.

	c.  As the Board reviews her case, he would ask that the Board consider how a promotion board member would assess an FA 59 file without coded FA 59 position experience and schooling, whether the board member would value successful battalion command for an FA 59 officer, and if the board member might question the motivation behind a branch transfer as an LTC.  As the FA 59 branch managers reviewed her application to branch transfer, they raised issues such as these in their recommendations for disapproval.  Her decision to branch transfer without the benefit of advice from her gaining career field unfortunately placed her in a position of disadvantage in comparison to her peers.

	d.  The Army can resolve this issue by allowing her to compete as a Logistics officer in an SSB.  This would allow the promotion board to give her duty performance and potential for future service an unbiased assessment and would address a branch transfer decision she made without fully understanding the risks.  In counseling her on her application to this Board, she agreed an SSB allowing her to compete as a Logistics officer will satisfy her request for corrective action.  She is fully aware that the SSB may not select her for promotion and she accepts the outcome of that board as the final decision in her appeal.

7.  She also provides an email from the CG, HRC, dated 29 June 2014 wherein she states "I remember talking to you and saying battalion command could only strengthen your file and that was a plus.  I did not realize your 59 time was coded 01A (branch immaterial).  I wish I could shed some light on this but I really can't.  It seems to me you would qualify for an SSB and I hope they can make that happen quickly.  I wish I could be of more assistance.  I am sure the G-1 will quickly work through this."  

8.  An advisory opinion was received from HRC on 3 September 2014 in the processing of this case.  An advisory official recommended denial of the applicant's request.  The official stated: 

	a.  Based on a review of the records and the information provided, HRC finds her request for reconsideration for promotion to COL by an SSB does not have merit in accordance with (lAW) Title 10, U.S. Code (USC), section 628; Army Regulation 600-8-29 (Officer Promotions), chapter 7; and/or Department of Defense Instructions (DODI) 1320.11.

	b.  She requests to be reconsidered for COL under her previous branch of Logistics (FS); however, her voluntary branch transfer to the Strategic Plans and Policy (OS) was approved on 30 August 2011, hence as required, she was to be (and has been) considered for promotion under OS, from approval date to present. 

	c.  There are no records available to support any claim that she was denied promotion to COL based on an approved branch transfer, nor are there any documents that would confirm denial of any concerns, questions or request(s) for information that she may or could have made prior to its approval, failure to do so does not constitute material unfairness or a material error.  The exact reason(s) for her non-selection for promotion(s) are unknown because statutory requirements set forth in Title 10, USC, 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(s) board determined that her overall record when compared with the records of her contemporaries, did not reflect as high a potential as those selected.  Therefore, any further comment(s), remark(s) or statement(s) in regards to her non-selection are purely speculative,

	d.  The decision to deny her request for an SSB was not under arbitrary, capricious, or erratic conditions, nor was it in violation of Title 10, USC, or Army Regulation 600-8-29, or DODI 1320.11.

9.  On 8 September 2014, she submitted a rebuttal to the advisory opinion.  She stated: 

	a.  HRC's recommendation is a fairly narrow interpretation of the regulations and she requests the Board view this issue more holistically.  Her request has merit and is IAW Title 10, USC; Army Regulation 600-8-29, chapter 7; and the DODI 1320.11.  Her goal in asking for assistance from the Board is to direct an SSB to consider her file for promotion as a Logistics officer based on the HRC CG’s unintentional personnel processing error made with respect to her branch transfer that is clearly highlighted in the evidence from completed investigations. 

	b.  She is requesting an SSB because promotion board members who sat on the promotion board likely rated her file lower based on perceived lack of Strategist, FA 59 experience.  The investigation findings and HRC's internal files corroborate this.  To assert that this had no impact would indicate that individual branches and their unique requirements do not matter and that all branch files would be graded the same across the spectrum.  The board Memorandum of Instruction and the official investigation confirmed that board files were grouped by their branches and divisions when they were evaluated and that board members received guidance on branch career developmental paths as part of the board proceeding. 

	c.  There is also the issue of a material error.  She requested to change her branch in good faith because it was portrayed to her as a risk-free option from senior leaders.  She had no knowledge of any risks.  Internal HRC documents, however, indicated HRC was well aware of these risks, yet they did not share these risks with her or her chain of command.  Had she been aware of these risks, she would never have risked a very successful career and would have remained a Logistics officer.  The counseling she received from senior leaders who encouraged and endorsed the branch transfer request thought her strategic experience met the standard in Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career) and that Command Select List (CSL) Battalion Command was additive.  The CG, HRC who approved the branch transfer admitted that she made a mistake approving the branch transfer and misinterpreted the requirements for Strategist FA 59 qualifications.  She also provided an advisory opinion on 29 June 2014, stating she (the applicant) should qualify for an SSB. 

	d.  She is not asking to reverse the non-selection decision.  Instead, she is only asking for a fair shot at promotion and to compete as a Logistics officer on a level playing field under conditions that would have existed had this unintentional personnel action mistake not occurred. 

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 for SSBs:

	a.  Paragraph 7-2 states the SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army (HQDA) discovers one or more of the following:  

		(1)  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).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

		(3)  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

	b.  Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs (1) the officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade.  The officer will be considered by the next regularly scheduled selection board; (2) an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brier (ORB) or Official Military Personnel File (OMPF). The ORB is a summary document of information generally available elsewhere in the officer’s record.  It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them; (3) letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s OMPF; (4) the consideration in question involved an officer below the promotion zone; (5) the promotion selection board did not see an official photograph; and/or the board did not consider correspondence to the board president that was delivered to HRC after the cutoff date for such correspondence established in the promotion board zone of consideration message.

DISCUSSION AND CONCLUSIONS:

1.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones, are widely published in official, quasi-official, and unofficial publications and, in official communications.

2.  By law and regulation, promotion selection boards cannot divulge the reason for non-selection of a particular officer.  As such, any contention by the applicant that her non-selection was due to the branch transfer issue is speculative at best. She simply does not know why she was not selected.  

3.  Promotion reconsideration is appropriate for non-selected officers whose records contained a material error when it was considered by a promotion board. A material error is defined as being of such 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/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. 

4.  The applicant was an equal partner in the branch transfer process.  There is no evidence she was coerced or forced into this action.  She was counseled and the ultimate decision to request the transfer was hers, not her chain of command or HRC.  But even if there had been an error in the branch transfer, there is no evidence to support her contention that this particular issue was the reason for her non-selection for promotion.  While promotions recognize potential for service in higher grades and at increased levels of responsibility, they are based on performance.  The notion that she would have been promoted except for the branch transfer issue is not support by the evidence.
5.  After a comprehensive review of her records and the evidence she provided, there is insufficient evidence submitted by her to support an SSB.  Therefore, she is not entitled to 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)                                         AR20140013232





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ABCMR Record of Proceedings (cont)                                         AR20140013232



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