IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140014333 


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.  The removal from her official military personnel file (OMPF) of:

		(1)  A memorandum for the Commanding General (CG), U.S. Army Reserve Command (USARC), dated 26 June 2012, from the Office of the Deputy Chief of Staff (DCoS), G-1, hereafter referred to as the contested memorandum 1.

		(2)  A memorandum for the Office of the DCofS, G-1, dated 21 August 2013, from the Commander (CDR), USARC, hereafter referred to as the contested memorandum 2.

	b.  Her records to go before a Special Selection Board (SSB) for promotion consideration to major (MAJ) under the Fiscal Year 2014 (FY14) MAJ, Army Reserve (AR) Non-Active Guard/Reserve (NON-AGR), Judge Advocate General Corps (JAGC) Competitive Categories Promotion Selection Board (PSB) criteria.

2.  The applicant states: 

	a.  On 7 March 2014, adverse information was filed in the performance folder of her OMPF as disciplinary without her knowledge of the documents or the underlying action that generated them.  This was the first time that she had seen or heard about either of these two documents.  The filing occurred 4 days prior to the convening of the FY14 MAJ, AR NON-AGR, JAGC Competitive Categories PSB and, as a result, she was not promoted to MAJ.  She now faces involuntary separation from the military as a two-time non-select to MAJ.  She was neither offered nor allowed the opportunity to respond to the contents of those documents in writing.  She requests the documents and any disciplinary designation be removed from her OMPF and her FY14 Promotion Board File be sent to an SSB.  
   
   b.  The FY14 MAJ, AR NON-AGR, JAGC Competitive Categories, PSB, announced in Military Personnel (MILPER) Message 13-369, convened on 11 March 2014.  The contested memorandum 2, from Lieutenant General (LTG) JWT, was added to her My Board File (MBF) under the file tab "Disciplinary" on 7 March 2014.  This was 2 days after her MBF officially closed on 5 March 2014.  A screen shot shows the PSB reviewed her MBF as follows:  (1) Photo-1, (2) Performance-11, (3) Commendatory-8, (4) Educational Training-2, (5) Officer Record Brief (ORB)-1, and (6) Disciplinary-1.
   
   c.  The contested memorandum 1 was an after-action report (AAR) from her FY12 below the zone promotion board and her unit's response.  The board recommended that she be considered for referral to a show cause board for inadequate progress on the weight control program.  LTG JWT decided in her favor and closed the matter in the contested memorandum 2.
   
   d.  She was never informed of the contested memorandum 1 or contested memorandum 2.  By the time of the FY13 and FY14 PSB, her weight was within the standards and the medical condition which had caused the weight gain was being treated with medication.  The contested memorandum 2, even though it directed the matter closed, was filed in her OMPF as disciplinary and that is adverse. 
   
   e.  Adverse information filed in the OMPF requires that the subject of the information be notified and allowed to rebut or explain the information.  Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-2a, states "unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as a basis for the proposed filing and make a written statement, or to decline, in writing to make such a statement."

	f.  She was never notified or allowed to make a written statement.  The FY14 PSB saw only LTG JWT's unanswered and unexplained decision letter in a disciplinary file.  The letter, by itself, makes it difficult to understand the underlying facts that caused it.  Had she been notified of the action, she could have requested LTG JWT not file the letter in her OMPF, or that it be filed in the restricted portion of her OMPF, or made a written response that described the medical circumstances of her height/weight (HT/WT) issues.  The failure to follow the requirement of AR 600-37 resulted in the PSB believing she had a disciplinary history of unknown circumstances.  

3.  The applicant provides:

* contested memorandum 1 and contested memorandum 2 
* a printout of an interactive Personnel Electronic Records Management System (iPERMS) screen listing documents in her OMPF, dated 12 July 2014
* a memorandum, dated 17 January 2013
* three DA Forms 4856 (Developmental Counseling Form), dated between 9 September and 2 November 2012
* award of the Meritorious Service Medal, dated 16 July 2011
* 12 DA Forms 5501 (Body Fat Content Worksheet), dated between 15 June 2011 and 16 January 2013
* DA Form 3349 (Physical Profile), dated 4 August 2010
* seven DA Forms 67-9 (Officer Evaluation Report (OER)) for the rating periods from 4 August 2008 through 1 December 2012
* a duplicate OER for the rating period 5 April 2011 through 3 April 2012, annotated as not filed in her (iPERMS) file
* a DA Form 1059 (Service School Academic Evaluation Report (AER))
* two Official Department of the Army (DA) photographs of herself, dated 8 July 2009 and 5 March 2013
* DA Form 288 (Report to Suspend Favorable Personnel Actions (FLAG)), undated
* a printout of a screen titled Appeal - 2014 MAJ Board - MBF Documents, undated

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) JAGC officer and was promoted to the rank/grade of CPT on 11 April 2007.  She was assigned to Headquarters (HQ), 75th Legal Operations Detachment (LOD), Mountain View, CA.

2.  She provides and her record contains her OERs for the rating period:

* 4 August 2008 through 15 March 2009, wherein it shows her HT/WT as 66/209 and that she did not meet the Army HT/WT standards
* 16 March 2009 through 3 August 2009, wherein it shows her HT/WT as 66/221 and that she did not meet Army HT/WT standards
* 4 August 2009 through 3 August 2010, wherein it shows her HT/WT as 66/224 and that she did not meet Army HT/WT standards
* 4 August 2010 through 4 April 2011, wherein it shows her HT/WT as 66/226 and that she did not meet Army HT/WT standards
* 5 April 2011 through 3 April 2012, wherein it  shows her HT/WT as 66/193 and that she did not meet Army HT/WT standards

3.  She provides and her record contains an AER, dated 16 January 2009, wherein it shows she attended and successfully completed the JA Officer Advanced Course (JAOAC), Phase II, from 5 to 16 January 2009.  This AER contains the comment "Soldier met academic requirements but failed to meet body composition standards of AR 600-9 (The Army Weight Control Program (WCP)) during this course."

4.  She served on active duty as a member of the USAR from 5 April 2011 to 3 April 2012.

5.  She was considered by but not selected for promotion to MAJ by the FY12 MAJ, AR AGR and AR NON-AGR, JAGC Competitive Categories, PSB.

6.  Her record contains the contested memorandum 1, a memorandum for the CG, USARC, dated 26 June 2012, subject:  AAR, FY12 MAJ, AR AGR and AR NON-AGR, JAGC Competitive Categories, PSB and the FY12 CPT Selective Continuation (SELCON) Board, from the Director of Military Personnel Management, DCoS.  The memorandum stated, in part:

	a.  The memorandum was for the USARC CG's review and action.  There were 18 AR officers recommended to show cause for retention on active duty.  Within 6 months of receipt of the show cause recommendations, request you (CG, USARC) provide a report that details the action taken for each officer recommended for show cause to Headquarters, Department of the Army, Army G-1.  

	b.  The applicant's OMPF indicated three referred OERs for non-compliance with the weight standards in accordance with AR 600-9 and for no evidence of commitment to personal improvement in referenced Army standards.

This memorandum is filed in the restricted folder of her OMPF.

7.  She provides and her record contains her OER for the rating period 3 April 2012 through 1 December 2012, wherein it shows her HT/WT as 66/186 and that she did meet the Army HT/WT standards.

8.  She provides a memorandum for LTG CDR, USARC, dated 17 January 2013, subject:  Recommend Against Initiating Show Cause Board Proceedings - [The Applicant], from Colonel (COL) DBW, CDR, 75th LOD.  COL DBW stated, in part:

	a.  He assumed command on 25 June 2012 and noted the applicant's deficiency regarding meeting the HT/WT standards.  She started on the Army WCP in June 2011 and her starting WT was 224 and body fat percentage (%) was 49%.  Her authorized screening WT was 161 and body fat was 36%.

	b.  In February 2012, her WT was 193 and her body fat was 40%.  She received proper initial Army WCP counseling on 9 September 2012 and nutritional counseling by an Army nutritionist on 2 November 2012.  During the period September 2012 and January 2013, she made steady weight loss progress.  On 13 January 2013, her WT was 186 and her body fat was 36% and she met the Army body fat standard 4 months after being properly counseled and advised on how to safely obtain the required body fat percentage.

	c.  Notwithstanding the HT/WT issue, her duty performance was excellent and she was one of the best legal assistance attorneys.  The 75th LOD was currently 25% under strength and losing the applicant would further reduce the unit's ability to accomplish the mission.  He strongly recommended a show cause board not be initiated against her.

9.  Her record contains the contested memorandum 2, a memorandum for the Office of the DCoS, G-1, dated 21 August 2013, subject:  Show Cause Recommendation - The Applicant, from LTG JWT, CDR, USARC.  The memorandum stated, in part, in accordance with AR 135-175 (ARNG and AR Separation of Officers), paragraph 2-16b, he disapproved the recommendation, closed the case, and directed the case be returned to the originating agency.  He further directed the memorandum be filed in the applicant's OMPF.  

10.  At the bottom of the contested memorandum 2, LTG JWT entered the hand written comment "Tell [The Applicant], keep eating right and doing PT, you will be an inspiration to others!" and his signature.  This memorandum is filed in the performance folder of her OMPF.

11.  She was subsequently considered by but not selected for promotion to MAJ by the FY13 and FY14 MAJ, AR AGR and AR NON-AGR, JAGC Competitive Categories, PSBs.  

12.  She served on active duty as a member of the USAR from 1 October 2013 to 30 September 2014.  On 1 December 2014, she was honorably discharged from the USAR.
13.  AR 600-8-104 (Army Military Human Resource Records Management (AMHRR)) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  The AMHRR is an umbrella term encompassing human resource (HR) records for Soldiers, retirees, veterans, and deceased personnel.  The AMHRR includes, but is not limited to, OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army.  The AMHRR is archived in the iPERMS.  

14.  The OMPF is defined as permanent documentation that documents facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, retirement, or discharge.  

	a.  The purpose of the OMPF is to preserve documents pertaining to enlistment, appointment, assignments, performance, awards, disciplinary actions, separation, retirement, and any other personnel actions.  

	b.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states a memorandum from a general officer (GO) is filed in the performance folder of the OMPF.

	c.  The documents required for filing in iPERMS include HQDA involuntary separation recommendations that will be filed in the restricted folder of the OMPF.  Memorandums signed by a GO and directed for filing in the OMPF will be filed in the performance folder of the OMPF.

15.  AR 135-175, paragraph 2-16, outlines authorized actions by the area CDR on recommendation for involuntary separation received appropriate HQDA agencies.  It states, in part, if sufficient basis exists, the CDR may disapprove the recommendation, close the case, and return it to the initiating agency.  If it is determined that sufficient basis exists to initiate involuntary separation action, the CDR will notify the officer concerned of the requirement to show cause for retention and will give the individual the reason for the requirement and the opportunity to submit matters in their behalf.  

16.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  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.  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 individual’s non-selection by a promotion board and, that 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.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

17.  The U.S. Army Human Resources Command's (HRC) website contains a video script, dated 15 May 2015, subject:  Selection Board Process Script, wherein MAJ CW, a board recorder for DA selection boards stated, in part:  

	a.  HQDA convenes approximately 80 selection boards each year.  Promotion is not an entitlement; it must be earned.  Before each board convenes a MILPER message is released giving guidance for each particular board.  Once the MBF has opened, you should to go to the HRC website to review your OMPF for currency and accuracy.  MBF is made of documents that are in your OMPF in iPERMS.

	b.  Board members view all the documents found in the MBF using the Army Selection Board System (ASBS).  ASBS is the tool used by the Army for selection boards since 2004 that presents each Soldier’s file in the same format facilitating an effective and efficient assessment.

	c.  The first item a board member will see is the official DA photo, the second item are any letters to the president of the board, and the third is the ORB.  In the OPMF portion of the file, the first items seen are the OERs and AERs.  These are the most important documents in the file as they assess both quality of performance and potential to serve at the next higher grade. 

	d.  Next, they move to the commendatory file where they review awards and decorations.  The documents in this file provide the source documents that validate the accuracy of the DA photo and the ORB.  The final area of the OMPF is the training and education file.  This area shows all transcripts from military and civilian training and education completed. 

	e.  If there are any disciplinary documents they will be viewed by the board. These documents will appear at the beginning of the OMPF before the evaluations.  Board members must review all disciplinary documents.  If they fail to do so, ASBS will prompt them to review the documents before moving further into voting.  The system acts as a fail-safe and reminds board members to look at these documents before casting a vote. 
	f.  Board members are given the charter to identify and recommend Soldiers to show cause for retention.  This means if a board member reviews a file containing adverse information, he/she may vote the file show cause.  A referral to show cause means the Soldier must clearly explain why he/she should remain in the Army.  The Soldier will also be considered as a non-select for promotion.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms, while the applicant was serving as a CPT in the USAR, her OERs for the rating periods from August 2008 through April 2012 showed she consistently exceeded the authorized Army HT/WT standards and had not met the Army body fat standards for over 4 years.  

2.  She was subsequently considered by but not selected for promotion to MAJ by the FY12 MAJ, AR AGR and AR NON-AGR, JAGC Competitive Categories, PSB.  In accordance with governing regulations, in a memorandum dated 26 June 2012, HQDA notified the CDR, USARC that the applicant was recommended to show cause for retention as she had three referred OERs for not meeting Army HT/WT standards.  There are no requirements for HQDA to notify each individual officer that he/she was recommended to show cause for retention.  This requirement would be the responsibility of the CDR that was the convening authority for a show cause board if a show cause board was conducted.  This memorandum is properly filed in the restricted folder of her OMPF.

3.  Also in accordance with governing regulations, in a memorandum dated 21 August 2013, the CDR, USARC, after determining at that time the applicant did meet the authorized Army body fat standards, disapproved the recommendation, closed the case, returned the case to HQDA, and directed the memorandum be filed in her OMPF.  The provisions of AR 600-37 (notification, acknowledgement, rebuttal, and filing instructions) for the contested memorandum 2 would only be applicable if the CDR, USARC, had decided to initiate a show cause board; however, he did not.  This memorandum is properly filed in the performance folder of her OMPF.  

4.  The applicant has not provided any evidence that shows a material error (emphasis added) existed in her records that would meet the criteria for consideration by an SSB.  In addition, her contention that viewing only the memorandum from LTG JWT confused the board and resulted in her not being selected for promotion is speculative.  As promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known.  
5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20140014333



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ABCMR Record of Proceedings (cont)                                         AR20140014333



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