BOARD DATE:  14 July 2015

		DOCKET NUMBER:  AR20140018495 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for promotion to captain (CPT) by a special selection board (SSB).

2.  Counsel states in a new argument that in the original Record of Proceedings (ROP):

	a.  The Board found that, "the applicant did not exercise reasonable diligence in discovering he had missing Officer Evaluation Reports (OERs) and undocumented rating time."

	b.  The Board placed tremendous weight against the applicant for the missing OERs by stating he should have obtained either a memorandum declaring his non-rated time or an OER from the unit with which he was performing command-approved rescheduled training (RST) which could have been submitted to the U.S. Army Human Resources Command (HRC).

	c.  The Board simply ignored placing any fault for the missing OERs on the applicant's command or the Army, and failed to distinguish this action with the requirements of MILPER Message 12-283, which stated that Army "Commanders at all levels must make special effort to ensure any applicable evaluation reports for eligible officers are expeditiously processed."
	d.  Unaware that the Board was going to place sole blame for the missing OERs on the applicant, his efforts to secure the OERs were not listed in the original request.

	e.  The memorandum for record provided by Major (MAJ) R______ Y. K____, Operations Officer, 303rd Information Operations Battalion, reports some of the efforts made concerning the applicant's missing OERs.

	f.  The Board noted the applicant was passed over for promotion on 21 April 2011 and 27 November 2012.  The Board only briefly mentions the fact that during much of the time related to the two boards, the command disallowed the applicant's participation in activities and only allowed such after the applicant's earlier request to participate was allowed. 

	g.  As a result of the failures of the applicant's command his non-promotion was both in error and unjust.  The promotion boards did not have the complete OER's because of failures by his command to process them, as well as not transferring the applicant to the Individual Ready Reserve (IRR) when he was not participating.

3.  Counsel provides –

* a memorandum for record (MFR) from MAJ R______ Y. K____
* email notes regarding the applicant's separation and drill status 

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 AR20140000849, dated 17 July 2014.

2.  The applicant provides new evidence and a new argument through his counsel.  This new evidence and new argument constitute new evidence and as such warrant consideration by the Board. 

3.  The applicant served in the Regular Air Force from 16 July 1991 to 15 July 1996.  He later served in the Air Force Reserve.  On 16 March 2008, he was commissioned as a Medical Service Corps second lieutenant in the U.S. Army Reserve.  He achieved course standards and successfully completed all the requirements for graduation from his Basic Officers Leaders Course on 22 April 2009.   

4.  On 15 September 2009, he was promoted to first lieutenant (1LT).
5.  His records are void of documentation indicating he received an OER for any period from 30 July 2010 forward.  He was apparently not participating in his unit's drills and battle assemblies due to legal issues with a foreign country.

6.  The applicant was not selected for promotion to CPT by two mandatory promotion boards.  As he had more than 18 years of qualified service toward non-regular retirement, by law he was retained in his unit to attain 20 years so as to qualify for non-regular retirement.

7.  As new evidence the applicant provides:

	a.  An MFR from MAJ K____, Operations Officer, 303rd Information Operations Battalion.  MAJ K____ states that:

		(1) The applicant was assigned to his unit on 1 November 2013 and records revealed the applicant was missing multiple OERs dating back to 30 July 2010.

		(2) MAJ K____'s research revealed that the applicant's previous unit had submitted the missing OERs, but "HQDA had rejected them because the rater had attempted to put three years of rated information (20100729-20130729) on one single OER."  

		(3) New corrections were made and the OERs were resubmitted.  "Unfortunately HQDA again rejected the corrected OERs based upon the guidance outlined in paragraph G-5g of AR 623-3, as well as the derogatory comments stated in the OERs." 

		(4) "In light of this, HQDA refuses to accept any OERs on behalf of [the applicant] for the period that he was physically absent.  This, as a result, prevented the 352D CSH from resubmitting [the applicant's] missing OERs for the period that he was a nonparticipant."

		(5) The issue of the applicant's missing OERs could have been avoided had he been involuntarily transferred into the Individual Ready Reserve (IRR) during the period of nonparticipation in battle assemblies.

	b.  Email notes show the applicant's legal advisor informed the company commander that pending the applicant's separation he should be allowed to drill and/or RST.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policy and procedures used for selecting and promoting commissioned officers.  It states promotion boards will be provided a promotion consideration file for each eligible officer.  The promotion consideration file contains the performance portion of the Official Military Personnel File (OMPF) to include OERs, academic evaluation reports, commendatory information, disciplinary information and the Officer Record Brief. For U.S. Army Reserve officers a DA Form 2-1 (Personnel Qualification Record) will also be included in the promotion consideration file.  The promotion board members will receive written instructions on behalf of the Secretary of the Army that outline the zone of consideration and direct them to review each OER to determine the officer's qualification.  The instructions state officers will be selected using the fully or best-qualified method.  A fully qualified officer must be

* eligible for consideration
* participating satisfactorily
* qualified physically, morally and professionally
* capable of performing duties at the next higher grade under mobilization conditions
* educationally qualified
* must possess appropriate Area of Concentration

To select officers who are best qualified, the promotion board must first determine which members of the group are fully qualified.  The best qualified are then selected from that group. 

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes the policies, responsibilities, and procedures to assign, attach, detail, remove or transfer USAR Soldiers.  Officers may be involuntary released from assignment when their degree of efficiency and manner of performance require such action and their involuntary separation is not appropriate.  A relief for cause OER is required to support involuntary reassignment.  An officer may request voluntary assignment to another USAR unit or to the Individual Ready Reserve (IRR) by submitting a written request, normally a DA Form 4651 (Request for Reserve Component Assignment or Attachment), through his or her chain of command. 

10.  Army Regulation 623-3 (Evaluation Reporting System) states the rated Soldier has considerable responsibility in the evaluation process.  Normally to be eligible for an evaluation report, a Reserve Soldier must complete 120 calendar days in the same position under the same rater.  The rated Soldier will:

* perform each assigned or implied duty to the best of their ability
* always try to improve on the accomplishment of the unit's mission
* evaluate their own performance, when in doubt seek the advice of the rating officials
* participate in counseling 
* provide rating officials with duty description, performance objectives (include fostering a climate of dignity and respect and preventing and eliminating sexual harassment and assault in their units)
* counseling will occur within 30 days of each new rating period and at least quarterly thereafter
* describe duties, objective, and significant contributions 
* periodic assessments will be conducted by the Soldier and rating chain during the period
* rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise and accurate
* review and sign the evaluation after completed by the senior rater before departing with the Soldier's signature verifying the administrative data and confirming they reviewed the report

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for promotion to captain (CPT) or, in the alternative, reconsideration for promotion to CPT by an SSB was carefully considered.  

2.  The author of the MFR opines that the unit should have involuntarily transferred the applicant to the IRR.  By regulation, such a move on the part of the unit would have generated a "relief for cause" OER.  It is the applicant who had the opportunity given his circumstances to request voluntary transfer to the IRR.  The evidence of record does not show that at any point the applicant completed a DA Form 4651 and voluntary requested transfer so as to devote his attention to his personal affairs.  It is noted he sought legal counsel and his company commander was informed that the applicant was authorized to attend Unit Battle Assemblies until decisions were reached concerning his potential involuntary separation.  

3.  Notwithstanding counsel's arguments that the previous Board placed considerable emphasis on the applicant to ensure his OERs where completed, the regulatory guidance clearly states the rated officer has significant responsibility to ensure accurate, concise and timely OERs are completed.  In fact, the regulation uses the term "will" when outlining the rated Soldier's responsibilities.  As evidenced by the lack of OERs for nearly a 3 year period, the applicant appears not to have exercised due diligence to insure that his promotion record was complete and accurate.  The unexplained non-rated periods could have been explained by a memorandum and filed in his OMPF.
4.  The applicant's and counsel’s current criticism of the emphasis the original Board placed on the non-rated periods is based upon the unsupported assumption the “missing” OERs were the reason for the applicant’s non-selection for promotion.  Their rationale is speculative at best.  Officers who are selected for promotions meet the criteria of best qualified from the pool of officers who are fully qualified.  As previously discussed in the initial ROP, the promotion board deliberations are private amongst the board members and any conjecture on the part of the applicant, his counsel or this Board is purely speculative. 

5.  The applicant and his counsel have not provided sufficient and compelling evidence to show a material error occurred in the preparation of his promotion consideration file.  Therefore, his request for an SSB is without merit and his application should be denied.

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 AR20140000849, dated 17 July 2014.



      _________ ______________________
               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)                                         AR20130013745



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ABCMR Record of Proceedings (cont)                                         AR20140018495



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