IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140017253 


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 his records go before a Special Selection Board (SSB) for promotion consideration to captain (CPT).

2.  The applicant states: 

	a.  He was not promoted to CPT due to an administrative error; his rater did not complete his Officer Evaluation Report (OER) until after the promotion board. He contacted the SSB and they could not help him.  They referred him to the Army Board for Correction of Military Records (ABCMR).  It is unjust that he and his family are being punished because of an error on the part of his lieutenant colonel (LTC).

	b.  He requests reconsideration of promotion by an SSB under the same criteria and instructions of the Fiscal Year 2014 (FY14) Army CPT Promotion Selection Board (PSB).  Department of the Defense Instructions (DODI), section 1320.11, paragraph 4.2, states "An SSB shall not, under section 628(b) or 14502(b) of reference (b) consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct that error or omission in which the original board based its decision against promotion."  

	c.  He fully understands that he was afforded the opportunity to submit documents to his Official Military Personnel File (OMPF), his My Board File, and to correspond with the president of the PSB of possible administrative deficiencies in his records, or to bring special attention to any matter that he considered important during consideration and that failure to do so does not constitute "material unfairness" or a "material error."  He also understands that any documents received outside the established limits per the appropriate military personnel (MILPER) message are not considered cause for reconsideration and will not be approved (emphasis added).  He is providing documentation and a timeline of events that supports the diligent efforts he took to correct the error in his promotion board file prior to the established date of the promotion board per the MILPER message.

3.  The applicant provides his Officer Record Brief (ORB), DA Form 67-9 (OER), an email, and two statements of support.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant Regular Army commissioned officer in the Ordnance Branch (OD) on 24 November 2010, with a concurrent call to active duty. 

2.  He attended and successfully completed the OD Basic Officer Leader Course from 13 March through 8 July 2011 at Fort Lee, VA.  

3.  He was promoted to the rank of first lieutenant (1LT) on 25 May 2012.  On 14 February 2013, he was assigned to Headquarters and Headquarters Company (HHC), 18th Engineer Brigade, Germany, as the Brigade Public Affairs Officer (PAO).

4.  The applicant provides an email, dated 6 February 2014, he sent to his rater on that date, wherein he stated "My OER is due and I got it started, please let me know when we can schedule a counseling."

5.  He provides and his record contains an annual OER covering the 12-month rating period from 9 February 2013 through 8 February 2014.  His rater was a LTC and his senior rater was a LTC.  This OER shows:

   a.  His rater checked the "outstanding, must promote" block and stated, in part, "Serving as the Brigade PAO, [the applicant's] performance has been excellent.  As an OD officer by trade, he took the challenge untrained as the new PAO.  He received high praise from the 21st Theater Support Command's (TSC) PAO for producing 6 commercials and 14 Armed Forces Network news events..." As the brigade continues to inactive, he was instrumental in turning over 100,000 historical items…to the European historical site." 

	b.  His senior rater checked the "best qualified" and "center of mass" blocks and stated, in part, "Outstanding performance.  [The applicant] ranks among the top 25% of the most gifted and talented lieutenants in the brigade.  He is a "go-getter" who accomplishes the mission.  Promote to CPT, send to the Logistics CPT Career Course, and place in company command at the earliest opportunity."

6.  On 14 April 2014, this OER was signed by the rater and senior rater; on 22 April 2014, it was signed by the applicant.  It was subsequently forwarded to the U.S. Army Human Resources Command (HRC) OER Branch for processing. It was filed in the performance folder of his OMPF on 23 April 2014.

7.  It appears he was considered for promotion to CPT by the FY14 CPT Army Competitive Category (ACC), PSB, that convened on or about 10 April 2014 and he was not selected for promotion. 

8.  He provides two statements of support, each dated 15 September 2014, as follows:

	a.  One wherein his senior rater stated the applicant did a great job as the Brigade PAO and should be promoted to CPT with his peers.  His most recent OER was delayed due to a miscommunication between his rater and the Brigade S-1.  The administrative error was not his fault and he should be given an SSB for promotion to CPT.

	b.  One wherein the Commander, 18th Ordnance Battalion, Fort Lee, VA, stated the applicant was a must select for promotion to CPT and should be promoted with his peers.  He was not considered from the in the promotion zone by a regularly scheduled board because of an administrative error.

9.  In an advisory opinion, dated 1 December 2014, the Chief, Officer Promotions, HRC, recommended disapproval of the applicant's request.  The advisory official, in part, opined:

	a.  Based on a review of records and the information provided, the applicant's request for an SSB does not have merit.  MILPER Message 14-015, dated 21 January 2014, was issued 78 days before the convene date of the FY14 CPT, ACC, PSB.  The message specifically stated in order to be eligible for consideration by the board all mandatory or optional OERs "must be received error-free, in the Evaluation Reports Branch (ERB), HRC, no later than close of business on 28 March 2014."  The message also stated "Commanders at all levels must make special effort to ensure any applicable evaluation reports for eligible officers are expeditiously processed."  The applicant's OER with a through date of 8 February 2014 was not received by HRC until 23 April 2014.

   b.  The exact reason(s) for the applicant's non-selection for promotion is unknown because statutory requirements set forth in Title 10, U.S. Code (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 board determined that the applicant's overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected.

10.  In a response to the advisory opinion, dated 10 December 2014, the applicant stated:

	a.  He has a great record and there is no reason why he did not get promoted to CPT with his peers on 1 November 2014.  The only possible reason for him not getting promoted, after his branch manager, battalion commander, and several other field grade officers reviewed his board file, was that his last OER was not reviewed by the board.  The reason the OER was not reviewed by the promotion board was beyond his control.  He provided evidence that shows he engaged his rater early because he was aware of the MILPER message.  However, the 21st TSC G-1 and 18th Engineer Brigade's S-1 told his rater he had 90 days to submit the OER and it would still make it to the board.  That was the administrative error that was made by both the Brigade S-1 and Division G-1.

	b.  According to Army Regulation 600-8-29 (Officer Promotions), paragraph 
7-2a(1), the SSB 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 an officer was not considered from in or above the zone by a regularly scheduled board because of administrative error.

	c.  Right now the late OER is being considered the error but that is simply the result of the error.  He wants the SSB to review his entire board package and promote him to CPT as of 1 November 2014.

11.  MILPER Message 14-015, dated 21 January 2014, stated, in part, in order for an OER to be reviewed by the board, all OERs must be received in the Evaluation Reports Branch, HRC, no later than 28 March 2014.   

12.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of active duty officers.  

   a.  Paragraph 7-2 of the regulation states SSBs may be convened under Title 10, USC, section 628, to consider or reconsider commissioned officers for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.
   
   b.  Paragraph 7-3 states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the board did not consider correspondence to the board president that was delivered after the cutoff date for such correspondence established in the promotion board zone of consideration message.
   
   c.  Paragraph 7-11 states officers who discover that a material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  

13.  Army Regulation 623-3 (Personnel Evaluation - Evaluation Reporting System) paragraph 3-33 details the preparation and submission requirement of evaluation reports.  It states, in part, evaluation reports will be forwarded error-free to reach HQDA no later than 90 days after the "thru" date of the evaluation report.  The senior rater is responsible for ensuring the timely submission of the OER.  Evaluation reports for selection board consideration must be received at HQDA no later than the receipt date established in the MILPER message announcing the board.  The receipt of OERs at HQDA after a suspense date directed by an HQDA selection board will not be an automatic basis for appealing the report or selection board results.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should go before an SSB for promotion consideration to CPT because an OER he received for the rating period 9 February 2013 through 8 February 2014 was not available for the board to review and he believes he would have been selected for promotion had the OER been in his board file.

2.  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.  MILPER Message 14-015 clearly stated OERs had to be received by HRC not later than 28 March 2014 to be available for the board to review.  

3.  The evidence of record confirms the OER, with a "thru" date of 8 February 2014 and signed on 14 and 22 April 2014, was received by HRC and added to his OMPF on 23 April 2014.  This was within the 90 days from the "thru" date required by regulation and it was not a late report.  It appears the OER was processed by his unit within the required timeframe and HRC added it to his record in a timely manner.  This was not an administrative or material error.

4.  The applicant has not provided any evidence that shows a material error existed in his records that would meet the criteria for consideration by an SSB.  In addition, his contention that he would have been selected for promotion if the OER had been available for review 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, he 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)                                         AR20140017253





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ABCMR Record of Proceedings (cont)                                         AR20140017253



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