IN THE CASE OF:    

		BOARD DATE:  17 December 2014	  

		DOCKET NUMBER:  AR20140015694 


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 his earlier request that his records be considered by a special selection board (SSB) for promotion to lieutenant colonel (LTC). 

2.  The applicant states:

	a.  The SSB process, as it stands now, does not make provisions for those, like him, who through no fault of their own were denied the opportunities of their contemporaries but must compete for promotion against those very same contemporaries, with no mitigation to compensate for the inherent inequity of such process. 

	b.  He was appointed in the U.S. Army Reserve (USAR) in 1998 in the rank of captain (CPT) but received incorrect constructive service credit.  He petitioned the Board and it was determined in Army Board for Correction of Military Records (ABCMR) Docket Number AR2013006106 dated 20 June 2013 that his record was in error.  The Board recommended correction of his records by awarding him the correct constructive service credit and appointing him as a chaplain in the USAR in the rank of major (MAJ), effective 6 August 1998. 

	c.  He again petitioned the Board and it was determined in ABCMR Docket Number AR20130012878, dated 19 December 2013, that his records should be considered by an SSB for promotion to LTC and possibly colonel (COL) under the 2005 through 2012 year criteria.  He was considered by an SSB for promotion to LTC but he was not selected.  
	d.  The second ABCMR recommendation was intended to correct the injustices consequential to the first ruling.  While the first ruling corrected the initial injustice, the second did not correct the subsequent injustice.  If the SSB considered his records up to the point of that promotion year criteria, in comparison to those who had full opportunity of their rank, along with the inherent advantage of positions of greater responsibility and the corresponding officer evaluation reports, the playing field was not level and the process is flawed and is tilted against him.  

	e.  Instead of correcting the injustice consequential to having been appointed at the incorrect rank in 1998, it only perpetuates it.  He was notified that he was considered by an SSB but he was not selected for promotion.  Given the circumstances and criteria, he could not have reflected as high a potential as those selected.  He wants the SSB to consider his entire record, what he achieved and when he achieved it, had he been given the opportunity. 

3.  The applicant provides a memorandum of non-selection by the SSB.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130012878, on 19 December 2013.

2.  The applicant provides a new argument that was not previously considered by the Board.  

3.   Having had prior service in the USAR and Army National Guard, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant (1LT) and executed an oath of office on 13 August 1998.  He completed all phases of the Chaplain Officer Basic Course and he was promoted to CPT in the USAR on 21 May 2002. 

4.  He entered active duty on 14 January 2005 and served in Germany from 3 February 2005 to 28 February 2006.  He was honorably released from active duty on 15 March 2006.  He completed the Chaplains Captain Career Course from April 2006 to May 2006.  

5.  On 11 July 2008, the U.S. Army Human Resources Command (HRC) published Orders B-07-804597 promoting him to MAJ in the USAR effective 10 July 2008 (amended to 30 May 2008).

6.  He entered active duty on 30 August 2008 and served in Iraq from 7 September 2008 to 6 September 2009.  He was honorably released from active duty on 4 November 2009. 

7.  On 20 June 2013, in response to his petition to be awarded constructive service credit for his prior commissioned service and subsequent appointment in the rank of MAJ, the Board (ABCMR Docket Number 20130006101) granted relief by: 

* adjusting his constructive service credit to 14 year, 7 months, and 10 days
* showing he was appointed as a Chaplain in the USAR in the rank of MAJ effective 6 August 1998
* adjusting his active duty date of rank 
* paying him all back pay and allowances

8.  On 30 July 2013, as a result of the Board's recommendation, HRC published an appointment memorandum, appointing him in the rank of MAJ effective 6 August 1998 and issued him an appointment order to the USAR, also in the rank of MAJ, effective 6 August 1998.  HRC also ordered the exclusion of 14 years, 7 months, and 10 days from the calculation of his mandatory removal date. 

9.  On 19 December 2013, as a result of his petition for approval of a military waiver, consideration for promotion to LTC by an SSB, and consideration for promotion to COL by an SSB, the Board (ABCMR Docket Number AR20130012878) granted relief by: 

* granting him a military education waiver for the Fiscal Years 2005 through 2012 LTC promotion selection boards
* placing his records before an SSB for promotion to LTC under the Fiscal Year 2005 through 2012 year criteria
* if selected for promotion to LTC by an SSB, establishing his effective date and date of rank, and paying him all back pay and allowances
* if selected for promotion to LTC, granting him a military waiver for promotion to COL under the appropriate year criteria
* if selected for promotion to LTC, placing his records before an SSB for promotion to COL under the under the appropriate year criteria
* if selected for promotion to COL by an SSB, establishing his effective date and date of rank, and paying him all back pay and allowances


10.  On 26 August 2014, HRC notified him that he was considered for promotion to LTC by an SSB but he was not selected for promotion.  The reasons for his non-selection are unknown because statutory requirements in Title 10, U.S. Code, section 14104 prevent disclosure of board proceedings to anyone who is not a member of the promotion board.  It can only be concluded that the SSB determined his overall record when compared with the records of his contemporaries did not reflect as high a potential as those selected. 

11.  He was considered for promotion to LTC by 2014 LTC Chaplain Promotion Selection Board and he was selected for promotion.  The approval date of that board was on 3 March 2014 and it was official released on 14 March 2014.   Accordingly, on 3 April 2014, HRC published Orders B-04-401560 promoting him to LTC with an effective date of 3 March 2014. 

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  It states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

13.  Title 10, U.S. Code, section 14502(a)(2) states an SSB convened under this subsection shall consider the record of the officer or former officer as that record would have appeared to the promotion board that should have considered the officer or former officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be considered for promotion to LTC by an SSB to consider his entire record.

2.  The applicant was appointed as a USAR commissioned officer in the rank of CPT in August 2008 with the incorrect constructive service credit.  He petitioned this Board in 2013 and the Board recommended granting him service credit and based on this credit, appointment as a Chaplain in the USAR in the rank of MAJ effective August 2008. 

3.  This correction established a new eligibility date for promotion to LTC.  Thus, as a result of his second petition, the Board recommended granting him a military waiver and placing his records before an SSB under the year criteria 2005 through 2012.

4.  He was considered by an SSB as recommended by the ABCMR but he was not selected for promotion.  The reason for his non-selection is unknown.  By law, promotion boards are not authorized to divulge the reasons for not selecting an officer for promotion.  

5.  It is a well-known fact that promotion boards do not reveal the basis for selection or non-selection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  Since 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. 

6.  The applicant’s contentions have been carefully considered; however, by law SSBs shall consider the record of the officer or former officer as that record would have appeared to the promotion board that should have considered the officer or former officer.  There are no provisions in law to provide for the circumstances in which the applicant found himself.

7.  The applicant utilized the redress system to correct his records.  He received a fair evaluation of his case by this Board.  He equally received a fair consideration by the SSB, as provided for by law.  He was not selected for promotion.  Therefore, after a comprehensive review of the applicant's records, regrettably he has shown neither an error nor an injustice.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20130012878, dated 19 December 2013.



      _______ _   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)                                         AR20140015694





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ABCMR Record of Proceedings (cont)                                         AR20140015694



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