IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140019109 


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 her records go before a Special Selection Board (SSB) for promotion consideration to lieutenant colonel (LTC) under the criteria of the Fiscal Year 2012 (FY12) and FY13 LTC Judge Advocate General's Corps (JAGC) Promotion Selection Board (PSB).

2.  The applicant state she contends her non-selection for LTC by the FY12 and FY13 LTC JAGC PSBs were contrary to law.  On 1 October 2014, she submitted a request for an SSB to the U.S. Army Human Resources Command (HRC) in accordance with Army Regulation (AR) 600-8-29 (Officer Promotions), paragraph 7-2(a)(2).  On 15 October 2014, HRC denied her request.  She is now specifically requesting the Army Board for Correction of Military Records (ABCMR) consider her request. 

3.  The applicant provides:

* a self-authored memorandum addressed to HRC, dated 25 September 2014
* 16 statements of support addressed to HRC, dated between 7 April and 11 August 2014
* a memorandum for record, dated 14 November 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant Reserve commissioned officer in the U.S. Army Reserve (USAR) on 13 May 1995.  She was appointed as a first lieutenant (1LT) Reserve commissioned officer in the JAGC with a concurrent call to active duty on 7 January 2000.  Her adjusted date of rank (DOR) to 1LT was 7 July 1998.

2.  She attended and successfully completed the JA Officer Basic Course from 7 January through 7 April 2000 at Charlottesville, VA.  She was promoted to the rank/grade of major (MAJ)/O-4 in the Regular Army on 1 June 2007.

3.  She attended and successfully completed the JA Officer Graduate Course from 10 August 2007 through 22 May 2008 at Charlottesville, VA.  

4.  In September 2009, she received an Officer Evaluation Report (OER) for the rating period 23 May 2009 through 22 May 2010 for her duties while serving as the Chief, Military Justice/Afghan Prosecutions, Combined Joint Task Force (CJFT) - 82, Afghanistan.  Her rater was a LTC and her senior rater was a colonel (COL).  Her rater rated her as “outstanding performance, must promote” and her senior rater as “best qualified - above center of mass.”

5.  In July 2011, she received an OER for the rating period 23 May 2010 through 22 May 2011 for her duties while serving as the Deputy, of The JAG (TJAG) Pre-deployment Preparation Program, Office of the TJAG (OTJAG).  Her rater was a LTC and her senior rater was a COL.  Her rater rated her as “outstanding performance, must promote” and her senior rater as “best qualified - center of mass.”

6.  In January 2012, she received an OER for the rating period 23 May 2011 through 6 January 2012 for her duties while serving as the Deputy, Training Policy Branch, OTJAG.  Her rater was a LTC and her senior rater was a COL.  Her rater rated her as “outstanding performance, must promote” and her senior rater as “best qualified - above center of mass.”

7.  She was considered for promotion to LTC by the FY12 LTC JAGC PSB and was not selected for promotion.

8.  She attended and successfully completed the Intermediate Level Education (ILE) course from 13 February through 14 December 2012 at Fort Leavenworth, KS.  

9.  In July 2013, she received an OER for the rating period 7 January 2012 through 4 May 2013 for her duties while serving as an Administrative Law Attorney, U.S. Army Central Command, MacDill Air Force Base, FL.  Her rater was a LTC and her senior rater was a COL.  Her rater rated her as “outstanding performance, must promote” and her senior rater as “best qualified - above center of mass.”

10.  The applicant provides a memorandum for record, dated 15 November 2013, subject:  FY13 JAGC LTC PSB Results Analysis, wherein the Chief, Personnel, Plans and Training Office, outlined the key takeaways, specific data points, and selection percentages (%) of the PSB.

11.  On 21 November 2013, by memorandum, she was notified by HRC that she had been considered for promotion to LTC by the FY13 LTC JAGC PSB and was not selected for promotion.  However, a subsequent selection board was convened to consider twice non-selected officers for continuation on active duty and she had been selected for selective continuation (SELCON).  If she declined, she would be honorably separated no later than 1 May 2014 and if she accepted, she may serve until 31 January 2020, unless sooner discharged under other provisions of the law.  She accepted the SELCON and acknowledged her mandatory removal date (MRD) would be no later than 31 January 2020. 

12.  In a memorandum, dated 25 September 2014, she submitted a request to HRC for reconsideration for promotion by an SSB to LTC and contended her non-selection by the FY12 and FY 13 LTC JAGC PSBs were contrary to law as she felt her non-selection was based on her political views, race, and gender. With her request to HRC, she submitted 16 statements of support, wherein, in part, her instructor, senior rater, several COLs, LTCs, other officers, noncommissioned officers (NCO), and a general officer, all stated, they supported her request for an SSB, she stood out from her peers, she was an officer and attorney of the highest caliber, and she should be promoted to LTC.  On 15 October 2014, HRC denied her request. 

13.  In the processing of this case, an advisory opinion, dated 23 December 2014, was received from the Chief, Officer Promotions Special Actions, HRC.  The advisory official recommended disapproval of the applicant's request and opined, in part, that:

	a.  Based on a review of their records and information provided, they found the applicant's request for an SSB did not have merit in accordance with Title 10, U.S. Code (USC), section 628 (SSB), AR 600-8-29, or Department of Defense Instruction (DODI) 1320.11 (SSB).  

	b.  There are no records to support any claims that the boards were conducted contrary to law or that the applicant was disadvantaged from promotion consideration or selection by any board member based on race, gender, religion, or political views.  Therefore, any presumption, suspicion, conjuncture, comments, or hearsay for non-selection by non-voting or third party personnel are purely speculative.

	c.  The exact reasons for the applicant's non-selection for promotion are unknown because statutory requirements set forth in Title 10, USC, section 613a (Nondisclosure of Board Proceedings) prevent disclosure of board proceedings to anyone who was not a member of the presiding board.  Her comments or beliefs of improper senior officer statements or exchanges should have been addressed via an AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation, Equal Opportunity (EO) complaint, or correspondence to the president of the PSB.  Failure to do so does not constitute material unfairness or a material error.  It can only be concluded that the PSB determined the applicant's overall record when compared with her contemporaries did not reflect as high a potential as those selected.

	d.  The Army's Promotion/Selection System is reviewed continually and they are confident that it supports the Army's mission by filling authorized spaces with the best qualified officers through an extremely managed and regulated system. The LTC boards results ending in a non-selection for the applicant is not unusual or uncommon, nor does it mean that she is not a quality officer; rather, it is indicative of the very competitive nature of the promotion system.

14.  In a response to the advisory opinion, dated 27 February 2015, the applicant stated:

	a.  The advisory opinion reflects a failure to comprehend the core aspects of her original request for an SSB and stated there are no records to support any claims that the boards were conducted contrary to law or that that she was disadvantaged from promotion consideration or selection by any board member based on race, gender, religion, or political views.  Her claim is that at least one member of each board unlawfully considered one or more of her constitutionally protected factors resulting in her non-promotion including her political views, race, and gender.  

	b.  As evidence that such sentiments surrounding her existed, she specifically notes that a senior JA who was a member of the FY13 PSB explicitly stated her non-selection, at least regarding the FY12 PSB, was likely the result of these unlawful factors (emphasis added).  It is not unreasonable to contend that these same factors also were relevant during the FY13 PSB.  As the senior JA was a member of the FY13 PSB, it is disingenuous for HRC to assert that any presumption, suspicion, conjuncture, comments, or hearsay for non-selection by non-voting or third party personnel are purely speculative.

	c.  That there is no specific document, email, recording, or other item that contains board members mentioning her by name, hurling racial or other epithets, or otherwise explicitly stating he/she would not, or did not, fairly review her file is hardly surprising.  For HRC to assert there are no records to support her claim is quite simplistic.

	d.  The advisory opinion states the exact reasons for her non-selection are unknown because statutory authority prevents disclosure of board proceedings.  That they are confidential does not preclude their review if there is evidence they may have been conducted unlawfully.  However, even if none of the proceedings are available for review to reveal a discrepancy by a member, this is not dispositive regarding whether an SSB should be granted.  Key components of her argument are that her record, coupled with the sentiments expressed by a respected, senior JA regarding how her views adversely affect how she is perceived in the JAGC, were unlawfully considered and resulted in her non-selection.  

	e.  Thus, how an individual voted may be a relevant question but it is not dispositive.  What is crucial is that a third party, objective review of her files, which would happen at an SSB, should be conducted as she contends this would verify that she was not selected for promotion based on external factors and not her record.  Such a consideration of external factors does violate AR 600-8-29, paragraph 1-32, DODI 1320.14 (Commissioned Officer Promotion Program Procedures), the FY12 and FY13 Memorandum of Instruction, and Department of the Army (DA) Memorandum 600-2 (Policies and Procedures for Active-Duty List (ADL) Officer Selection Boards), and the Constitution's equal protection clause.

	f.  Regarding the use of the EO, AR 15-6, or other processes, none of these directly address the remedy she is seeking which is specifically the convening of an SSB.  She has followed the procedure outlined in AR 600-8-29 and her request is consistent with Title 10, USC, section 628(b)(1)(A).  It is incorrect to assert that her request should have been addressed via EO or AR 15-6.  

	g.  Regarding the senior officer exchange which HRC asserts should have been the catalyst for these venues, it misreads her claim.  She is not asserting the senior JA's comment were inappropriate; she agreed with his comments.  He was speaking directly about his senior JA/leader thoughts regarding what issues may impact her chances for promotion and not about the FY13 PSB that he sat on.  At the time of the conversation, he did not know he was going to sit on the FY13 PSB.  However, it is her assertion that his assessment is shared by other JA board members, such sentiments were unlawfully considered, and when these beliefs are viewed in light of the strength of her file verses her peers, such unlawful considerations culminated in her non-selection for promotion.
	h.  She wholeheartedly agrees with the advisory opinion's argument that the promotion process is a very competitive one and the promotion rates have been dropping over the last few years.  She does not agree that it could only be concluded that her file did not measure up to her peers.  The JAGC is a very small organization and she personally knew at least five of the six JA board members.  She also personally, or knows someone who knows personally, every single LTC JA selectee for FY12 and FY13.  Objective analysis of the JA board files conducted by the JAGC could not produce an explanation for her non-selection in FY12 or FY13.

	j.  She is not asserting that her file was the number one file or she should have been promoted over all of her peers.  She is simply asserting that given the extraordinary content in her record as compared to the selectees, the sentiments espoused by the senior JA, and the key takeaways document produced for the FY13 board, her situation is in fact unique and warrants further analysis via an SSB.

15.  AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Chapter 7 provides for SSBs.  SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. 

	a.  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:

		(1)  An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required).

		(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.  A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.

DISCUSSION AND CONCLUSIONS:

1.  Each promotion board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instructions, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

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.  A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. 

3.  Notwithstanding the applicant's contention that the FY12 and FY13 JAGC PSBs unlawfully considered her political views, race, and gender, or the senior JA's opinion that the FY12 JAGC PSB likely considered these factors resulting in her non-selection, she has not provided any conclusive evidence that shows a material error existed in her records that would meet the criteria for consideration by an SSB.  In addition, as stated by the advisory official, her contention that she would have been selected for promotion if the PSBs had not considered her political views, race, and gender for review is speculative at best.  

4.  By law, promotion selection boards are not authorized to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known.  It can only be concluded that for the applicant the FY12 and FY13 PSBs determined that her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.  Inasmuch as the ABCMR does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20140019109





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ABCMR Record of Proceedings (cont)                                         AR20140019109



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