IN THE CASE OF:  	  

		BOARD DATE:  14 April 2015	  

		DOCKET NUMBER:  AR20150000032 


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 correction of his military records by affording him reconsideration for promotion to colonel, pay grade O-6.

2.  The applicant states he was not afforded fair consideration for promotion in July 2003 by the Officer Promotion Board for colonel.  As a result of an Inspector General Action Request (IGAR) he was made aware that his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 20030211 through 20030701) was not considered by the promotion board because it did not arrive at the Department of the Army (DA) by the July 2003 cut-off date.  The failure to meet the cut-off date was not his fault.  His compliance was timely.  The ensuing actions and events placed him in a decisively negative position for promotion consideration to colonel.  His promotion status was certified and valid.  He had no negative history associated with promotional considerations to colonel.  He served overseas tirelessly and without any hesitation for several years in support of Operation Enduring Freedom and Operation Iraqi Freedom.  He maintained excellent relations with all assigned organizations and made a positive impact in all assigned duties.  He maintained all educational standards for promotion consideration, including his attaining a master's degree in logistics management.  During his active duty from November 2002 through September 2005, he had continually and dutifully worked, without falter, in high visibility positions requiring higher levels of responsibility.  He requests promotion reconsideration to colonel.  He maintains that his promotional status to colonel is and has always been unquestionably satisfactory, meeting the U.S. Army standards.  He asks for a favorable reconsideration and that it effective with the July 2003 Officer Promotion Board for colonel.
3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 20 November 2001, the applicant was ordered to active duty as a lieutenant colonel, pay grade O-5, United States Army Reserve (USAR), in support of Operation Noble Eagle and Operation Enduring Freedom.

3.  In a letter dated 18 September 2002, the applicant was notified of his eligibility for retired pay at age 60 (20-Year Letter).

4.  The applicant received an OER for the period 20 November 2002 to 1 July 2003.  This evaluation was submitted as a senior rater option report.  It was signed and dated on 23 October 2003.  A copy of the report was forwarded to the applicant on 28 October 2003.

5.  Letter Orders C11-499170, U.S. Army Human Resources Command (HRC), dated 20 November 2014, announced the applicant's placement on the Army of the United States Retired List in the rank of lieutenant colonel, pay grade O-5 effective 28 November 2014.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC.  After a review of HRC records it was determined that the applicant's request for reconsideration for promotion to colonel did not have merit in accordance with Title 10, United States Code section 628, Army Regulation 600-8-29, chapter 7, or Department of Defense Instructions 1320.11.  Military Personnel Message Number 03-153, subject: Fiscal Year 2003 Colonel Promotion Board Zones of Consideration, dated 
28 April 2003 stated that in order to be considered by the board, all mandatory or optional OERs must have been received, error free, in the Evaluations Reports Branch, HRC, no later than close of business on 22 July 2003.  The message also advised that all commanders needed to make a special effort to ensure any applicable evaluation report for eligible officers was expeditiously processed.  Optional OERs were submitted at the discretion of the rating officials, provided all requirements were met in accordance with Army Regulation 623-105 (Officer Evaluation Reporting System).  Because optional reports were not mandatory, the absence of them at the time of a selection board's review did not provide a basis for reconsideration, unless the absence was due to administrative error or a delay in processing after receipt by HRC Evaluations Branch.  The applicant's senior rater option OER with a through date of 1 July 2003 was not received at HRC until 3 November 2003, 126 days after the established cut-off date.  Furthermore, there is no proof that an IGAR altered fair consideration.  Such matters from the IG or from the Criminal Investigation Command  were not made available to promotion board members for review.  It is concluded that the applicant's overall record when compared with the records of his contemporaries did not reflect as high a potential as those who were selected for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by affording him reconsideration for promotion to colonel, pay grade O-6 because his senior rater option OER for the period ending on 1 July 2003 was not provided to the promotion selection board.  He argues that this omission caused his unfair consideration.

2.  The evidence shows that the subject OER was an optional report that was not processed by his rating chain until 23 October 2003.  The established cut-off date for all OERs to be received at HRC was 22 July 2003.  This made the subject OER more than 3 months late in arriving at HRC.

3.  Because optional reports are not mandatory, the absence of them at the time of a selection board's review does not provide a basis for reconsideration, unless the absence was due to administrative error or a delay in processing after receipt by HRC Evaluations Branch.  The applicant's senior rater option OER with a through date of 1 July 2003 was not received at HRC until 3 November 2003, 126 days after the established cut-off date.

4.  In view of the above, the applicant's request should be denied.  There is no injustice or error requiring correction.



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)                                         AR20150000032





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000032



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1