BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20140018151 


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 consideration of her records for promotion to the rank of captain (CPT) by a special selection board (SSB) under the criteria established by the Fiscal Year 2013 (FY13) Captain, Army Nurse (AN) Corps, Medical Service Corps (MSC), and Army Medical Specialist Corps (SP) Promotion Selection Board (PSB). 

2.  The applicant states, in effect:

	a.  A permanent P-3 profile, rather than the correct temporary T-3 profile, was placed on her "PULHES" by a (healthcare) provider during her first pregnancy.  She was passed over for promotion to CPT due to this administrative error. 

	b.  As a result of non-selection for promotion caused by the P-3 factor in her PULHES, the offer for inter-service transfer to the U.S. Air Force (USAF) was rescinded.  

	c.  The final result of this error placed her in the category of a one-time non-select applicant during the very competitive 2014 board and she was once again passed over for promotion to CPT. 

	d.  She was given an involuntary separation date of 1 February 2015.  She is requesting that her military record from April 2013, now in a corrected state with her PULHES shown as 111111, be compared to her fellow 2013 officers who were selected for promotion during that board.  If she is found to be competitive and comparable to those officers, she would like to be promoted with a back-dated rank. 
	
   e.  She believes it is unjust that although she attempted on several occasions to correct her record, she was repeatedly assured by leadership that there was no error when in fact there was an error that most likely cost her promotion to CPT, which then resulted in the loss of an inter-service transfer to the USAF that was approved based on her outstanding records. 

	f.  She was advised by her brother, a Navy commander, as well as by her cousin, a retired USAF colonel, to write to her Congressman and Senators in October, allowing them enough time to review and intercede on her behalf prior to her separation date.  However, she would prefer to resolve the issue within the Army chain of command if possible.

	g.  She first noticed the P-3 profile in her records in May of 2012 when she began applying for an inter-service transfer to the USAF.  Before the issue could be resolved, she became pregnant for the second time.  Due to confusion in the classification of pregnancy as either a T-3 or P-3, there was resistance in changing her permanent record.  Unable to find someone willing to change her record, she contacted her branch manager for verification.  When she asked specifically if pregnancy caused a "311111" to populate on the PULHES generating the P-3 on her record, Lieutenant Colonel (LTC) H responded, "We figured out that it is supposed to be there.  The code is consistent with a profile that causes you not to be able to deploy and the cause is not correctable in 
30 days.  I verified this with [LTC B]."

	h.  Based on this response, she did not contest the 311111 in her PULHES.  After the birth of her child in February 2013, the 311111 remained and she assumed it was due to the 6-month recovery time post-pregnancy.  The 311111 PULHES in her record went before the April 2013 CPT board.  In June 2013, 
2 months after the April board, she received an email from a Landstuhl Regional Medical Command (LRMC), Germany medical evaluation board (MEB) doctor who was reviewing profiles.  Dr. T wrote, "I am one of the MEB doctors here at LRMC.  I have been tasked with checking into cases where Soldiers have a 2 or higher on the PULHES in MEDPROS, but no active profile in e-profile.  You came up on this list as having a permanent 311111 in MEDPROS with no current profile in e-profile.  In reviewing your records, I see no reason that you would have a P-3.  My best guess is that someone took the T-3 from pregnancy and made this a P-3.  Would this be correct or do you have a permanent P-3 profile?"

	i.  She later discovered that her tasking originated from her initial inquiries into her record over a year prior.  She was not the only individual at LRMC who had raised questions with administrative profile errors or that had struggled to find the correct individual to fix the errors.  The P-3 was finally removed from her record in June of 2013, but too late to influence the board's decision.  When the board results were announced, she was a non-select.  Her chain of command assured her that her non-select status was based on the inter-service packet she had submitted, rather than the incorrect PULHES record.  

	j.  While waiting for the transfer to the USAF, she extended in Germany for  18 months without additional compensation.  As the next CPT board was approaching, she met with the S-1 in March 2014 to review her military file.  The S-1 did not understand why she was a one-time non-select and she explained the reasons given to her based on her application for inter-service transfer. She concluded that her transfer application would not have influenced the board's decision; instead the results were most likely determined from her incorrect status in the PULHES.  In June of 2014, the paperwork for the inter-service transfer to the USAF was completed.  A few days after the offer was extended, the USAF rescinded the offer based on her non-select status. 

	k.  In August 2014, she returned to the U.S. after serving over 4 years at LRMC in Germany and she learned that as a one-time non-select applicant, she had again been passed over for promotion to CPT.

	l.  The last decade of her life she has worked diligently to become an Army officer and progress in her military career.  As a Reserve Officer's Training Corps cadet, she graduated with honors in 2009.  She spent 2 years working in a medical surgical unit at LRMC before being loaned to the Neo-Natal Intensive Care Unit (NICU) on a 4-month assignment.  This unit was understaffed and experiencing prolonged high census.  As can be seen on her Officer Evaluation Reports (OER), she was chosen for the temporary assignment based on her clinical skills and interest in neo-natal care.  At the completion of the fourth month, the NICU requested to keep her on the staff because the staff had been pleased with her performance.  

	m.  As the temporary assignment was ending, she was encouraged to start the packet for the inter-service transfer to the USAF.  The transfer would have allowed her to continue her career on active duty while specializing in neonatal intensive care, which is not a recognized specialty in the Army.  

3.  The applicant provides:

* email from LTC H, in reference to her date eligible to return from overseas (DEROS)
* Officer Record Brief (ORB), dated 6 September 2012
* email from Doctor T, pertaining to her PULHES entries
* DA Form 3349 (Physical Profile)
* ORB, dated 2 October 2014
* Seattle University College Transcripts and Bachelor of Science in Nursing Certificate 
* State of Washington Registered Nurse License 
* four OERs
* Army Commendation Medal (ARCOM) Certificate
* Memorandum for Record (MFR), subject:  Overseas Tour Extension and Inter-service Transfer for (the applicant), dated 11 May 2012
* memorandum from the LRMC Commander, subject:  Request for Inter-service Transfer for (the applicant), dated 15 November 2012
* letter from the USAF Personnel Center, dated 16 June 2014
* email pertaining to the cancellation of her acceptance for inter-service transfer
* memorandum of support from Major (MAJ) P, USAF, LRMC Chief, Maternal Child Nursing, dated 26 September 2014
* memorandum of support from CPT H, USAF, LRMC NICU Officer in Charge, dated 1 October 2014
* memorandum from the U.S. Army Human Resources Command (HRC), subject:  Notification of Separation Due to Non-selection for Promotion, dated 15 August 2014
* the applicant's acknowledgement of mandatory separation, dated              2 September 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer of the Army, in the Army Nurse Corps (AN), on 13 June 2009.  She entered active duty on         8 October 2009 and was promoted to the rank of first lieutenant on 14 April 2011.

2.  Her ORB, dated 6 September 2012, shows her PULHES data as "311111" as of 31 October 2011.

3.  Military Personnel (MILPER) Message 13-002, issued by HRC on 6 January 2013, announced the zone of consideration for the FY13 CPT, AN, MSC, and Army Medical SP PSB.  This document provided specific guidance on the procedures for reviewing, auditing, and updating personnel records.  It also offered guidance for individuals to report to the President of the board "those matters deemed important in the consideration of an officer's record."

4.  It appears she was considered but not selected for promotion by the FY13 CPT, AN, MSC, and Army Medical SP PSB, which convened on 2 April 2013.  
5.  She provided a DA Form 3349, dated 24 June 2013, that shows her PULHES data was corrected to show "111111."

6.  By memorandum dated 15 August 2014, HRC informed her that she was considered but not selected for promotion by the FY14 CPT, AN, MSC, and Army Medical SP PSB.  The memorandum explained the board, in its comparative judgement of future potential, considered such factors as performance reflected by OERs, assignments, and military and civilian training and education.  Her non-selection reflected the unavoidable fact that not all of their highly professional officer corps could be promoted to each successive grade.  She was also informed that due to non-selection for the second time, she was required to separate from the Army no later than 1 February 2015.

7.  In the processing of this case, an advisory opinion was obtained from the HRC, Officer Promotions Special Actions Branch.  The advising official recommends denial of the applicant's request and stated:

	a.  The exact reason(s) for the applicant's non-selection(s) for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613a (Nondisclosure of board proceedings) prevent disclosure of board proceedings to anyone who was not a member of the presiding board.  Therefore, any presumption, suspicion, comments, conjecture, or hearsay for non-selection are purely speculative.

	b.  Army Regulation 600-8-29 (Officer Promotions), paragraph 7-3 (Cases not considered) prohibits SSB approval for administrative errors on the ORB.  In addition, promotion board members are briefed and cautioned that some ORBs as well as the board file itself may contain incorrect or incomplete data during review, yet they must base their evaluations on the information provided and contained in each officer's file that is furnished to the promotion selection board. All promotion selection board military personnel message announcements remind and afford all officers the opportunity to view and correct any deficiencies on the ORB or documents within the Official Military Personnel File (OMPF).  The announcements also inform any officer of the option to submit correspondence to the president of the board to address any issues he or she feels is important during consideration.  Failure to do so does not constitute material unfairness or a material error.

	c.  There are no records of proof available to support any claim(s) that the board(s) were conducted contrary to law or that the applicant was denied or disadvantaged from promotion consideration or selection by any board member(s) based on her PULHES codes.  It can only be concluded that the promotion board(s) determined her overall record when compared with the records of her contemporaries did not reflect as high a potential as those selected.  Therefore, based on the above, reconsideration of promotion to CPT by an SSB can only occur as a directive by the Army Board for Correction of Military Records. 

8.  The advisory opinion was provided to the applicant to afford her the opportunity to submit comments and/or a rebuttal.  She responded and stated, in effect:  

	a.  She took the opportunity to view and correct all deficiencies on the ORB or documents within her OMPF.  She made every effort possible to correct the error on her PULHES and she was informed by personnel at HRC that her PULHES with the permanent P-3 was correct prior to the 2012 board.  They wrongfully maintained there was no error and that she did not need it to be changed.  She believed HRC personnel so she stopped trying to correct her PULHES code.  Her record then retained the error of a P-3 non-deployable profile and went before the 2012 (sic) board.

	b.  Having been given the false impression that her record was correct, she did not have a reason to write to the president of the board.  Had she known that her PULHES was in fact incorrect, she would have continued to try to correct the error.  Had she known the permanent P-3 was wrong prior to the board, she would certainly have written to the president explaining the error, the reason it had not been removed, and most importantly, that there was no reason for a permanent P-3 non-deployable profile in her record.

	c.  The record that went before the April 2012 board is the same record that was submitted for the inter-service transfer to the USAF in December 2011.  The USAF also noticed the P-3 permanent profile and they required additional documentation to verify that it was a mistake on her record.  She was selected for the inter-service transfer from the same military records.  In the USAF award letter it states:  "You can be justifiably proud of this notable achievement as the board was very selective."  She understands the services are different; however, they both look for potential to succeed, leadership abilities, and many other similar attributes.  

	d.  The advisory opinion pointed out that "there are no records or proof available to support any claim(s) that the board(s) were conducted contrary to law or that she was denied or disadvantaged from promotion consideration based on her PULHES code."  Although this technically may be correct, it should also be stated that there is no record stating that the error on her PULHES code is why she was not selected.  There is, however, documentation showing that she was advised by HRC incorrectly, that her PULHES was incorrect at the time of the board, and that while she was not selected for promotion to CPT, she was chosen for a very selective inter-service transfer.

9.  The applicant provided:

	a.  email from LTC H, in reference to her DEROS, that shows she was attempting to change her ORB PULHES entries prior to the FY13 promotion board;

	b.  email from Doctor T, pertaining to her PULHES entries, indicating her PULHES entries were corrected on 24 June 2013 to show "111111";

	c.  her ORB, dated 2 October 2014, showing her PULHES entries as "111111";

	d.  her Seattle University College transcripts and Bachelor of Science in Nursing Certificate, awarded on 13 June 2009;

	e.  State of Washington Registered Nurse License, first issued on 24 July 2009;

	f.  four OERs covering the period 20 April 2010 through 19 April 2014 showing she was continuously rated as “best qualified”;

	g.  ARCOM Certificate that shows she was awarded the ARCOM for meritorious service as a Clinical Nurse during the period 31 December 2009 to 14 January 2014;

	h.  MFR, subject:  Overseas Tour Extension and Inter-service Transfer, dated 11 May 2012, and a memorandum from the LRMC Commander, subject:  Request for Inter-service Transfer, dated 15 November 2012, supporting her request for an overseas tour extension and an inter-service transfer based on outstanding performance as an Army Nurse;

	i.  letter from the USAF Personnel Center, dated 16 June 2014, informing her of her selection for an inter-service transfer to the USAF;

	j.  email pertaining to the cancellation of her acceptance for inter-service transfer based on non-select information not being included in the original inter-service transfer packet;

	k.  memorandum of support from MAJ P, USAF, LRMC Chief, Maternal Child Nursing, dated 26 September 2014, attesting to the applicant's outstanding performance of duty and supporting the reconsideration for promotion to CPT based on the incorrect PULHES entries;

	l.  memorandum of support from CPT H, USAF, LRMC NICU Officer in Charge, dated 1 October 2014, praising the applicant's character and professionalism and supporting her request for reconsideration for promotion.  

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  

	a.  Numerical designator "1" under all factors indicates an individual is considered to possess a high level of medical fitness and consequently is medically fit for any military assignment.  

	b.  Numerical designators "2" and "3" indicate an individual has a medical condition or physical defect that requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

	c.  Numerical designator "4" indicates an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

11.  Army Regulation 40-501, paragraph 7-9 (Profiling pregnant Soldiers) provides that under factor "P" of the physical profile, indicate "T-3."

12.  Army Regulation 600-8-29 (Officer Promotions), chapter 7 (Special Selection Boards SSB) provides:

	a.  SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following:

		(1)  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error.  
		(2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

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

	b.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error on the ORB or in the OMPF.  The ORB is a summary document of information generally available elsewhere in the officer’s record.  It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and/or to notify the board, in writing, of possible administrative deficiencies in them.

13.  Title 10, U.S. Code, section 613a, provides that the proceedings of a selection board may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her record should be submitted to an SSB for reconsideration for promotion to CPT under the FY13 promotion board criteria.  She bases her request on an administrative error on her ORB pertaining to her physical profile status.  

2.  The evidence shows the applicant discovered a possible discrepancy on her ORB well before the convening of the FY13 promotion board.  MILPER Message 13-002 provided clear guidance for individuals to report to the president of the board "those matters deemed important in the consideration of an officer's record."  It appears she failed to do so.  

3.  It should also be noted that her PULHES data was corrected in June 2013 and that she was considered but not selected by the FY14 promotion board.  Therefore, her contention that she would have been selected for promotion by the FY13 promotion board if her PULHES entries had been correct is purely 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.  

4.  The applicant's outstanding service as an Army nurse was noted and her desire to have her record reviewed by an SSB is understood; however, based on the fact that the reason(s) for non-selection are unknown and the fact that she could have alerted the president of the board to a possible error on her ORB, she has failed to show that a material error existed in her records that would meet the criteria for consideration by an SSB.  In addition, there is no evidence indicating the promotion board(s) failed to act in accordance with law or regulation.  

5.  Based on the foregoing, there is no basis to grant the applicant's 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)                                         AR20140018151





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ABCMR Record of Proceedings (cont)                                         AR20140018151



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