IN THE CASE OF:	   

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140016378 


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, in effect, correction of his promotion board file certification status and consideration for promotion to lieutenant colonel (LTC)/pay grade O-5 by a special selection board (SSB).

2.  The applicant states, in effect:

	a.  His DA Form 67-9 (Officer Evaluation Report (OER)) which was signed on 13 January 2014 prior to the Fiscal Year (FY) 2014 LTC promotion board should be added to his promotion board file for consideration by an SSB.

	b.  His final promotion board file states it was not certified due to no fault of his own.

	c.  The injustice was caused by his senior rater and the J-1 submitting an OER to the U.S. Army Human Resources Command (HRC) stating he refused to sign the OER.  This occurred during an ongoing Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into allegations against his senior rater.  The wrong OER was corrected and he signed the corrected OER on 13 January 2014; however, his senior rater did not submit the corrected OER to HRC until 15 January 2014.

	d.  The SSB representative at HRC denied his request for an SSB because he signed the OER on 13 January 2014, which was 3 days after the Military Personnel (MILPER) message guidance allowed.  He tried to explain to the SSB representative that he had no control over the situation and was under the impression that the OER would be part of his promotion board file.

	e.  His promotion board file indicates it was not certified during the promotion board.  That was not true and needs to be corrected as well.

	f.  He believes these events led to his non-selection for promotion to LTC.

3.  The applicant provides copies of email correspondence.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 8 May 1998.

2.  He was promoted to major in the Regular Army effective 1 November 2007.

3.  His records contain his OER covering the period 16 February 2013 through 15 December 2013 which shows the senior rater signed it on 11 January 2014 and the applicant signed it on 13 January 2014.  Part VIIc (Senior Rater – Comment on Performance/Potential) states, "[Applicant's] performance and contribution has been spectacular.  [Applicant] is a unique officer whose passion and determination is unstoppable.  No one has worked harder to improve the combined operations capacity in our COIC [Combat Operations Intelligence Center].  He is ready now for additional responsibility.  He established the J2 Operations node and created the first Common Operational Picture for our organization.  [Applicant's] work on a command and control system led directly to the strengthening of relations between our organization and the Host Nation.  This caring and driven officer has remarkable potential for assignment in the most difficult staff assignments; promote immediately to Lieutenant Colonel."

4.  He provided a copy of email correspondence from him to a brigadier general at U.S. Central Command (CENTCOM) Forward-Jordan, dated 20 December 2013, which stated his senior rater told him he changed his senior rater comments due to an email sent to him from a major at CENTCOM.  The senior rater's demeanor and actions were hostile, irrational, unprofessional, and disrespectful toward the applicant.

5.  He provided a copy of email correspondence from a brigadier general at CENTCOM Forward-Jordan, dated 20 December 2013, which states an Army Regulation 15-6 investigation was initiated to determine what happened between the applicant and his senior rater on 17 December 2013.

6.  The FY14 LTC promotion board convened on 22 January 2014.  It appears he was not selected for promotion to LTC.

7.  He provided copies of email correspondence between him and an HRC officer promotions representative, dated 28 August 2014, which indicates he submitted a request for reconsideration to HRC for promotion to LTC by an SSB.  He stated:

	a.  The first reason for his SSB request was based on the fact that one OER that should have been seen by a promotion board was missing from his Official Military Personnel File (OMPF) due to no fault of his own.

	b.  The second reason was to correct his file certification status.  The promotion board had his file as not being certified which was not true.  He attempted to certify his promotion file several times during the allotted time frame established in the MILPER message.  He even contacted the Military Intelligence Branch Manager asking for assistance in the matter.

	c.  In his opinion, the fact of not having a current or close-out OER on file and his promotion file not being certified prior to convening the promotion board probably gave the board members a negative impression of him and the possible perception that he did not care about the promotion board.  Therefore, those two points placed his promotion to LTC at risk which resulted in his not being selected for promotion.

8.  He provided a memorandum from him to HRC, dated 10 January 2014, subject:  Evaluation Report Appeal (Applicant) from 20130216 thru 20131215, wherein he stated:

	a.  He appealed the subject OER under the provisions of Army Regulation 623-3 (Evaluation Reporting System), chapter 4.

	b.  An Army Regulation 15-6 investigation was completed on or about 9 January 2014.

	c.  A staff judge advocate officer informed him he had 7 days from the completion date to sign his OER.  His senior rater told him his OER had to be signed no later than 15 January 2014.  However, if he wanted the OER to be part of his records for the promotion board, then the OER must be signed on 10 January 2014.

	d.  On 9 January 2014, an OER covering the period 16 February 2013 to 15 December 2013 was posted to his official records stating, "The Rated officer refused to sign."  He was not aware that an OER was sent to HRC for processing.

	e.  This appeal is based solely on administrative error.  The comment, "The Rated officer refused to sign," in Part VII is not correct and he did not refuse to sign the OER.  He was awaiting the results from the Army Regulation 15-6 investigation.

9.  He provided a copy of "Do Not Reply – My Board File Entry Confirmation" email message, dated 14 January 2014, which stated:

This email shall serve as a confirmation of an entry that you made relative to your OMPF that is to be presented to an upcoming DA [Department of the Army] Secretariat board.

Board:  FY14 LTC OS [Operations Support] PSB [Promotion Selection Board].

Selection:  I have reviewed the information in "My Board File," and I will take action and submit the following corrections/changes to my file.

10.  A staff advisory opinion was obtained from the Chief, Officer Promotions Special Actions, HRC, in the processing of this case who recommends disapproval of the applicant's request for the following reasons:

	a.  The applicant's senior rater contacted the Evaluations Appeals Office on 10 January 2014 stating an unsigned OER was inadvertently submitted to HRC for processing.  The senior rater stated the applicant would sign his OER and he requested removal of the unsigned OER and replacement with the signed OER.  An Evaluations Appeals Office employee replied on 13 January 2014 stating the OER was already processed, but she would exchange the OER when the signed OER was received.

	b.  On 15 January 2014, the senior rater submitted the signed OER to the Evaluations Appeals Office employee via email; however, the senior rater comments were altered (in lieu of the employee's and senior rater's original agreement), thereby requiring a review of the OER as a new submission.

	c.  The corrected OER was posted to the applicant's OMPF on 22 January 2014, the same day the FY14 LTC Army Promotion Selection Board convened.

	d.  MILPER Message 13-256 established the last day to receive an OER for review by the promotion selection board as close of business on 10 January 2014.

	e.  The through date of the applicant's OER was 15 December 2013.  Army Regulation 623-3, paragraph 3-9a6(e), states the senior rater should ensure timely submission of OERs to Headquarters, Department of the Army (HQDA) to arrive no later than 90 days after the through date of the OER or as stipulated in a MILPER message announcing an HQDA-level selection board.  Current policy prohibits reconsideration if the OER failed to meet the established MILPER deadline.

	f.  An SSB for reconsideration for promotion to LTC under the 2014 criteria can only occur as a directive by the Army Board for Correction of Military Records (ABCMR).

11.  The advisory official provided a copy of the applicant's DA Form 67-9 covering the period 16 February 2013 through 15 December 2013 which shows:

	a.  The senior rater signed the OER on 17 December 2013.

	b.  The signature of the rated officer is blank.

	c.  Part VIIc states, "[Applicant] is in the top 40 percent of officers that I senior rate; his performance and contribution has been spectacular.  [Applicant] is a unique officer whose passion and determination is unstoppable.  No one has worked harder to improve the combined operations capacity in our COIC.  He is ready now for additional responsibility.  He established the J2 Operations node and created the first Common Operational Picture for CF-J.  [Applicant's] work on a command and control system led directly to the strengthening of relations between CF-J and the Host Nation.  This caring and driven officer has remarkable potential for assignment in the most difficult staff assignments; promote to Lieutenant Colonel.  The Rated officer refused to sign."

12.  On 29 November 2014, the applicant responded to the advisory opinion and stated:

	a.  He does not agree with the advisory opinion from HRC.  He was presented with the same findings during his initial request for reconsideration.  It was recommended to him that he submit an application to the ABCMR for further review.  However, he does agree that only an SSB for reconsideration for promotion to LTC under the 2014 criteria can only occur as a directive by the ABCMR.

	b.  He is the victim in this situation due to his senior rater and possibly others' involvement in the submission of his OER to HRC for processing during an open Army Regulation 15-6 investigation against the senior rater concerning his actions and behavior toward him during his OER close-out in Amman, Jordan.  He is suffering from serious mental and physical stress concerning the entire process and from the senior rater's actions, especially after not being selected for promotion to LTC.

	c.  His promotion board file is stamped "not certified" and he has email that proves otherwise and speaks to the fact that he indeed noted the discrepancies concerning his file, but that, too, seems to be overlooked during this review.

	d.  He questions if anyone addressed a few simple questions:  First, how did an unsigned OER inadvertently get submitted to HRC while the senior rater was being investigated for his unprofessional conduct directed towards him?  Second, has anyone requested a copy of the Army Regulation 15-6 investigation to review the facts and findings that occurred at CENTCOM Forward-Jordan located in Amman, Jordan?  Third, why were the senior rater's comments altered?  Fourth, were they altered due to the findings of the Army Regulation 15-6 investigation that were not in the senior rater's favor?

	e.  In his opinion, due to the Army Regulation 15-6 investigation and the senior rater's personal actions, it is safe to assume that the senior rater had a hidden agenda and knew exactly what he was doing.  During his telephone review with the senior rater, the senior rater refused to change the block check to Above Center of Mass and he refused to enter the necessary verbiage for his OER.  There is no regulation that outlines Uniform Code of Military Justice action toward a senior rater's malicious intent to destroy someone's career.

	f.  Though voluminous, not all his significant contributions were captured in his promotion board file which covered the course of a 20-plus year career.  Yet his consistently faithful and professional military service has, indeed, positively impacted the Army Enterprise and National interests at large.  He implores the ABCMR to carefully review the merit of this case and to understand that some situations are not always absolute in nature.  His past performance and future potential for continued service depends heavily on the Board's opinion when considering his request for reconsideration for promotion to LTC under the FY14 promotion criteria.

13.  Army Regulation 623-3 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

14.  Army Regulation 623-3, chapter 3, governs evaluation principles.  This regulation states reports received at HQDA after the required amount of time or past a suspense date set for a selection board is not an automatic basis for appealing either the report or the selection board results.  HQDA will process any valid report so as not to do disservice to the rated Soldier with an excessive amount of nonrated time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for promotion consideration to LTC by an SSB was carefully considered.

2.  He contends the OER signed on 13 January 2014 and prior to the FY14 LTC promotion board should have been seen by the promotion board, but it was missing from his OMPF due to no fault of his own.  His explanation that he withheld his signature from his OER pending the results of an ongoing investigation is not a valid reason for lateness.

3.  He also contends the senior rater had a hidden agenda and knew exactly what he was doing.

4.  The evidence shows:

	a.  The applicant's senior rater contacted HRC on 10 January 2014 stating an unsigned OER was inadvertently submitted for processing on 10 January 2014.  The senior rater stated the applicant would sign his OER and he requested removal of the unsigned OER and replacement with the signed OER.

	b.  An HRC official replied on 13 January 2014 stating the OER was already processed, but she would exchange the OER when the signed OER was received.

	c.  The applicant signed the OER on 13 January 2014, 3 days after the deadline for submitting OERs to HRC (10 January 2014).

	d.  The senior rater submitted the OER via email on 15 January 2014.  However, the senior rater comments were altered, thereby requiring a review of the OER as a new submission.

	e.  The OER was posted to the applicant's OMPF on 22 January 2014.

5.  The governing regulation states reports received at HQDA past a suspense date set for a selection board is not an automatic basis for appealing either the report or the selection board results.

6.  Based on the foregoing information, the applicant provided insufficient evidence to show he should be considered for promotion to LTC by an SSB.

7.  His contention that his promotion board file is stamped "not certified" is noted.  However, it is the responsibility of the officer to ensure his promotion board file is accurate.  He provided evidence showing he reviewed his information in "My Board File" on 14 January 2014 and indicated he would take action and submit corrections/changes to his file.  However, there is no evidence and he provided no evidence showing he certified his promotion board file prior to 22 January 2014, the date the promotion board convened.

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 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)                                         AR20140016378



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ABCMR Record of Proceedings (cont)                                         AR20140016378



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