IN THE CASE OF:	  

		BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20140017133 


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 her earlier request for promotion consideration by a special selection board (SSB) for promotion to colonel (COL) by the fiscal year 2013 (FY13) Colonel Army, Maneuver, Fires and Effects (MFE), Operational Support (OS), and Forces Sustainment (FS) Promotion Selection Boards (PSBs).

2.  The applicant states she respectfully makes this request based on additional information and justifications.

	a.  She noticed that the Executive Summary (EXSUM) she sent to the Board on 18 August 2014 was missing from the Record of Proceedings (ROP) as evidence considered by the previous Board.  She argues that this EXSUM contains critical information that answers many of the Board’s concerns.

	b.  She also notes that the ROP did not cite in the consideration of evidence the FY13 and FY14 Army, MFE, OS, and FS PSBs memorandum of instructions as part of its proceedings.  She did not originally provide these memoranda because she had been briefed the Board would have access to them.  These memoranda contain critical information about how the PSBs were organized and what was considered.  The memoranda reinforce the findings of the investigation and contradict the advisory opinion from the U.S. Army Human Resources Command (HRC).  To assert that all branches are viewed the same is inaccurate.  There are vast differences for career development gates between branches and divisions.

	c.  She has included an appropriate extract from an Inspector General (IG) investigation that substantiates her position in this case.

	d.  She contends the Board used a standard of evidence requiring a finding "beyond reasonable doubt" instead of the more appropriate standard relying on a "preponderance of evidence."  She argues that based on the laws cited, there is no way to meet the former standard and only the latter is achievable.  The only way to provide certainty about what happened on the promotion board requires a formal investigation of more than 20 general officers, which would be extremely time consuming, ill advised, and unnecessary given the burden for proof is already met with substantiated findings.  Beyond a reasonable doubt is an impossible standard to meet and does not apply in this case because the evidentiary burden was clearly met.

3.  The applicant addresses each area of concern the original Board had and argues that her case should be reconsidered and ruled in her favor.

	a.  She references Army Regulation 600-8-29 (Officer Promotions); in particular, paragraph 7-2 stating SSBs may be convened under Title 10, U.S. Code (USC), section 628, to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army (HQDA) discovers the board did not have before it some material information concerning an officer who was in or above the zone of consideration.  In this case, such information was the unintentional error by HRC when it processed and approved her branch transfer.  Had such error not happened, she would have been placed in the FS Division of the PSB and graded on an equal and level playing field.  The PSB did not have the appropriate information before it to evaluate her file fairly, putting her at an obvious disadvantage.

	b.  She argues that the disconnect within the Strategist career field was impossible to know in advance.  Because of the imprecise wording in the governing regulation for this career field, three senior general officers who had a role in this case did not know the correct interpretation of the Strategist career field.  Therefore, how could someone like the applicant, who was far junior to them, and who relied on them for mentorship and advice, have known that no one accessed into the branch as a senior major or lieutenant colonel could meet the requirements for promotion to colonel based on the time in grade gates.  The staff at HRC had a duty to tell their commanding general these facts and to inform the applicant and her chain of command about the risks of this branch transfer.



	c.  She argues that her contention that she was non-selected for promotion because of the branch transfer is not speculative.  It was substantiated to the extent possible in formal investigations.  She believes it is the only logical explanation for non-selection on both the FY13 and FY14 PSBs.

	d.  She states that had her promotion file been considered in her original branch, she would have had a reasonable chance to be selected because of her fast track record, performance ratings, and command time.

	e.  She states she was highly encouraged to make the branch transfer and accepted the responsibility for her decision.  However, it was HRC who approved the action which was based on staff failure to highlight the risks.

4.  The applicant provides copies of:

* Executive Summary (approximately 3 typed pages)
* Memorandum for President and Members, FY13 COL, Army, MFE, OS, and FS PSBs, dated 15 April 2013 (10 pages) with Annex A, Eligibility and Requirements (4 pages); and Enclosure 1, Board Membership (1 page)
* Executive Summary - Promotion Board Issue, undated (1 page)
* Investigating officer notes, pages 10 and 11 only (Interpreted to be an extract from an IG investigation)
* Memorandum, Promotion Lists for FY14 COL, Army, MFE, OS, and FS PSBs, dated 26 August 2014 (3 pages) with enclosures (22 pages)

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140013232 on 18 September 2014.

2.  The applicant has made new argument which requires consideration by the Board.

3.  The original ROP shows that:

	a.  the Board had reviewed the evidence to include an advisory opinion from HRC recommending denial of the applicant's request for an SSB;

	b.  the Board determined that the evidence did not show the applicant had been coerced or forced into requesting a branch transfer;

	c.   she had been counseled and the ultimate decision was hers, not her chain of command or HRC;
	
	d.  even if there had been an error connected with the branch transfer, there was no evidence showing such error was the cause of her non-selection for promotion; and

	e.  the Board denied the applicant's request based on the available evidence being insufficient to support an SSB.

4.  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. 

5.  On 1 July 2009, the applicant was promoted to lieutenant colonel (LTC).  At the time she was performing duties in area of concentration (AOC) 90A (Logistics) as a "Pol-Mil Planner" on a Joint Staff in Washington, DC.

6.  On or about 7 May 2011, the applicant was assigned as the Battalion Commander for a Combined Services, theater-level command in the Republic of Korea (ROK).

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

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

9.  On or about 25 April 2013, the applicant completed her command assignment and departed the ROK.  Her performance  during this period was rated as "Best Qualified" and her senior rater stated she was the best of the 26 LTCs he rated at the time.

10.  During the period 26 April 2013 through 7 April 2014, the applicant was assigned as the Chief, Regional Operations Branch in Washington, DC.  During this period she was rated as "Best Qualified" and "Most Qualified" and was rated among the very top of the officers rated by her senior rater.

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

	a.  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).

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

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be considered by an SSB for promotion to COL by the FY13/FY14 COL, Army, MFE, OS, and FS PSBs because HRC erred by approving her branch transfer.

2.  The available evidence shows that the applicant voluntarily requested a branch transfer from AOC 90A (Logistics) to FA 59 (Strategist).  Her chain of command and the 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.  Even so, the applicant's request was approved by the appropriate authority.

3.  A review of the available evidence shows that the applicant was led to believe and encouraged by more senior leaders to pursue this branch transfer as something in the Army's and her best interests, when in actuality neither was correct.  It is easy to accept and to believe that had the applicant known how detrimental this branch transfer would be, she would have withdrawn her request and remained in AOC 90A.

4.  Based on the new evidence, improper senior-level guidance, and the IG report, it would be equitable to correct the applicant's military records by:

	a.  showing that her original request for a branch transfer was disapproved by the appropriate authority;

	b.  showing she retained AOC 90A;

	c.  deleting from her military records and all other Army management records and data bases any evidence of her non-selection for promotion in FA 59; and

	d.  submitting her records to an SSB under the FY13 selection criteria in AOC 90A.  If she is not selected then she should be afforded the same opportunity under the FY14 criteria.

BOARD VOTE:

___x____  ___x____  ___x_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20140013232, dated 18 September 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting the applicant's records to show her request for branch transfer was disapproved;

	b.  deleting from her military records and all other Army management records and data bases any evidence of her non-selection for promotion in FA 59;

	c.  submitting her records to a duly constituted SSB for promotion consideration for COL in AOC 90A under the FY13 year criteria;



	d.  if she is not selected for promotion to COL under the FY13 criteria, then her records should be submitted for consideration under the FY14 criteria; and

	e.  if not selected for promotion, she should be so notified.



      _______ _   _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)                                         AR20140017133





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ABCMR Record of Proceedings (cont)                                         AR20140017133



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