BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20150003379 


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 reconsideration for promotion to major (MAJ) by the 2009 and 2010 Chaplain special selection board (SSB). 

2.  The applicant states:

	a.  In a previous application addressed in Army Board for Correction of Military Records (ABCMR) Docket Number AR20090014960, dated 27 May 2010, the Board determined he had not received the appropriate constructive credit for civilian ministry experience and directed correction of his record to show he was appointed in the Chaplain Corps of the U.S. Army Reserve (USAR) at the rank of captain (CPT) effective 20 June 2003.  The Board determined he had not appeared before subsequent promotion boards for his appropriate year group and directed SSBs for MAJ under the 2009 and 2010 criteria.   

	b.  While the ruling corrected the initial injustice, the ruling perpetuated an additional injustice.  If the SSB only considers his record up to the point of that promotion year criteria, in comparison to those who had the full opportunity of their rank, along with the inherent advantage of positions of greater responsibility and the corresponding officer evaluations, the playing field is not level, and the process is inherently flawed and tilted against him.  Instead of correcting the injustice consequential to having been appointed at the incorrect rank, it only perpetuates it.  One can only conclude since he was not selected for promotion by the SSB, that the SSB determined that his overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected.  He would submit that given the circumstances and criteria, it could not have reflected as high a potential.

	c.  He requests his record be reconsidered and that the SSBs be directed to consider the whole of his military record, what he achieved, and when he achieved it, and to consider what he might have achieved had he been given equal opportunity.  In fairness, he should be allowed, at minimum, the opportunity to provide a letter to the Board President explaining the reason his record is not as complete as those with whom he is competing.  He is only requesting what would have been afforded him if his record appeared in regular order before the 2009 and 2010 CH (MAJ) Promotion Boards.

3.  The applicant does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he submitted an application for appointment as a commissioned officer in the USAR, Chaplain Corps, on 20 May 2003.  

2.  On 19 June 2003, by memorandum, the U.S. Total Army Personnel Command, St. Louis, MO (now called U.S. Army Human Resources Command (HRC)) notified him that he was appointed as a USAR commissioned officer, Chaplain Corps, as a first lieutenant (1LT).  He was credited with 3 years of constructive service credit.  

3.  He executed an oath of office on 20 June 2003.  His date of rank (DOR) to 1LT was established as 20 June 2002, based on 3 years of constructive service credit.

4.  On 16 March 2005, he completed Phase I of the USAR Chaplain Officer Basic Course and on 1 September 2005, he completed Phase II of the USAR Chaplain Officer Basic Course.  

5.  On 10 May 2005, HRC published Orders B-05-603627 promoting him to CPT in the USAR with 13 April 2006 as his effective date and DOR.

6.  On 14 February 2006, by memorandum, HRC, notified him that his DOR to 1LT was in error as 20 June 2002, and that the HRC Soldier Data System was updated to reflect his new DOR as 20 June 2001. 

7.  On 21 September 2007, he petitioned this Board (ABCMR Docket Number AR20070012941) for correction of his records to show he was appointed in the USAR as a CPT vice 1LT, correction of his DOR to CPT to 20 June 2003 instead of 13 April 2006, and all back pay.  However, on 7 February 2008, the Board determined his appointment grade was correct and denied his request.

8.  On 3 April 2008, he petitioned this Board (ABCMR Docket Number 20080006558) for a waiver of the requirement to complete the Chaplain Officer Basic Course (OBC) in order that he may be considered for promotion to CPT by the 2005 Chaplain CPT Promotion Selection Board criteria.  In the alternative, he requested reconsideration of his request for adjustment of his CPT DOR due to an error in the initial determination of his grade as 1LT.  However, on 10 June 2008, the Board determined there were no errors in his records and denied his request.

9.  On 20 August 2009, he petitioned this Board (ABCMR Docket Number AR20090014960) for correction of his records to show he was appointed as a CPT instead of 1LT.  On 27 May 2010, the Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommended his records be corrected by:

* showing he was initially appointed to the rank of CPT on 20 June 2003
* paying him all back pay and allowances from that date
* if eligible for promotion consideration based on this change, placing his records before all promotion selection boards for which he was entitled to consideration providing he was otherwise eligible

10.  On 21 July 2010, HRC issued him a corrected appointment memorandum reflecting his appointment grade as CPT.  

11.  On 16 March 2011, HRC published Orders B-03-1015098 promoting him to MAJ with an effective date and DOR as 15 March 2011. 

12.  On 9 March 2011, HRC notified the applicant that he was considered for promotion to MAJ by an SSB under the 2009 criteria (MAJ Chaplain Promotion Selection Board) but he was not selected for promotion.  

13.  On 8 March 2012, HRC notified the applicant that his records would also be considered for promotion to MAJ by an SSB under the 2010 criteria.  This consideration was based on the ABCMR's directive which corrected his appointment grade.  

14.  On 13 February 2013, HRC notified the applicant that he was considered for promotion to MAJ by an SSB under the 2010 criteria but he was not selected for promotion.
15.  An advisory opinion was received on 22 April 2015 from HRC in the processing of this case.  The Chief of Officer Promotions recommended denial of the applicant's request and opined that the request did not have any merit.  He stated: 

	a.  Each year the Secretary of the Army, The Deputy Chief of Staff for Personnel (DCS, G-1) and the Army G1 establish and approve promotion selection criteria based on (not all inclusive or limited to) the Army's needs, goals, personnel strength, mission(s) and prior selections.  The selection board members recommend those who, in their collective judgment, are best qualified for promotion who meet or exceeded the specific criteria and guidelines for the particular board year in question.  HRC cannot allow current to-date documents such as year 2015 to be seen under the 2009 or 2010 criteria; to do so would be viewed as an unethical practice.  

	b.  HRC cannot say why the applicant did not utilize his option to communicate with a letter to the president of the board per Army Regulation  135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 3-12, 3-13, or the appropriate Military Personnel Message once he was aware of the ABCMR's decision/directive to conduct the SSBs.  Department of Defense Instruction (DODI) Number 1320.11, pursuant to section 628(b), 14502(b); Army Regulation 600-8-29 (Officer Promotions), chapter 7; and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19, prohibit consideration of any person who by maintaining reasonably careful records may have discovered and taken steps to correct that (said) error or omission on which the original board based its decision of non-selection.  Therefore, HRC cannot conduct any reconsideration(s) for the prior SSBs without ABCMR directive.

	c.  Therefore, pending an ABCMR directive, the entire process may take 12 months or more to complete before the results are approved for release by the appropriate signature authority.  Any adjustment of rank or associated back-pay or allowances may only occur upon a favorable outcome that leads to a promotion selection to MAJ under the FY09 or FY10 criteria (unless proven otherwise ineligible)

16.  The applicant was provided with a copy of this advisory opinion and responded on 2 June 2015.  He requested the ABCMR direct HRC to adjust his DOR to 2009 or 2010.  He added that he makes this request due to the fact that there is no possibility for him to be competitive with his peers in either 2009 or 2010 year groups, given his DOR to CPT in 2006.  He was promoted to MAJ under the 2011 criteria.  One can only deduce from this that had the error that led to his incorrect CPT DOR in 2003 not occurred, his evaluative record would have been complete and would have allowed him to fairly compete for promotion in the primary zone of 2009 or above the zone in 2010.  This injustice that led to his incorrect DOR was corrected by the ABCMR; however, the injustice brought about by the 2003 error is compounded and is affecting his MAJ DOR. 

17.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  Chapter 3 of this regulation prescribes special requirements and procedures for appointment of qualified members of the clergy for assignment as chaplains.  It states, in pertinent part, applicants for initial appointment in ranks above second lieutenant and former officers without prior service as chaplains must  possess a baccalaureate degree of not less than 120 semester hours and complete 3 resident years of graduate professional study in theology or related subjects (normally validated by the possession of a Master of Divinity or equivalent degree or 90 semester hours), that lead to ecclesiastical endorsement as a member of the clergy fully qualified to perform the ministering functions of a chaplain, at a graduate school.  Applicants for initial appointment must also receive endorsement from an ecclesiastical endorsing agency recognized by the Armed Forces Chaplains Board.  In granting ecclesiastical endorsement, endorsing agents must use DD Form 2088, Ecclesiastical Endorsement, which certifies that the applicant is a fully qualified member of the clergy of a religious faith group represented by the certifying endorsing agency and is qualified spiritually, morally, intellectually, and emotionally to serve as a chaplain of the Army.

18.  Entry grade and date of rank in commissioned officer grades will be determined by the entry grade credit awarded on appointment.  The entry grade credit awarded will be the sum of the prior commissioned service allowed.  This includes the amount of constructive service credit allowed.  A period of time will be counted only once when computing credit.  Applicants without prior commissioned service will be credited with 3-years of service in an active status. They will be appointed in the rank of first lieutenant.  Reserve Component commissioned officers will be ordered to active duty with assignment to the Chaplain Branch.  Assignment will be in their Reserve grades unless a higher grade, below that rank of major is authorized.

19.  Army Regulation 135-100 provides in table 3-1, in pertinent part, that a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment or assignment as a commissioned officer in a professional field will be awarded 3 years of constructive credit upon initial appointment and 1 additional year for 7 or more years of extensive practical experience in a ministry as documented on the DD Form 2088.

20.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  It states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the APL (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon his appointment in the USAR, the applicant's constructive service credit was incorrectly computed.  As a result of his petition to this Board, in May 2010, the Board granted him relief in that the Board recommended his records be corrected by:

* showing he was initially appointed to the rank of CPT on 20 June 2003
* paying him all back pay and allowances from that date
* if eligible for promotion consideration based on this change, placing his records before all promotion selection boards for which he was entitled to consideration providing he was otherwise eligible

2.  As a result of the Board's directive, the applicant was reissued a corrected updated appointment memorandum indicating his appointment grade as CPT.  His records also appeared before a promotion board via an SSB under the 2009 and the 2010 criteria.  In each case, he was not selected for promotion.  

3.  The intent of an SSB is to correct a material error.  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.  The advisory official noted that the SSB does not allow current to-date documents such as year 2015 to be seen under 2009 or 2010 criteria; to do so would be viewed as an unethical practice. 

4.  In any case, the applicant was in fact considered by two SSBs under the 2009 and 2010 years criteria but he was not selected.  The reason for the applicant's non-selection is unknown.  The selection board members recommend those who, in their collective judgment, are best qualified for promotion who meet or exceeded the specific criteria and guidelines for the particular board year in question.  

5.  Because the applicant had already received the opportunity to have his records considered by an SSB under the years that he would have had it not been for the error, and because he does not provide new evidence of any other material error, there is no reason to convene any other SSB for him.  He should not receive 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)                                         AR20150003379





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ABCMR Record of Proceedings (cont)                                         AR20150003379



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