IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20150006892


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 request, through Counsel, promotion to the rank of major (MAJ) or, in the alternative, reconsideration for promotion to MAJ by a special selection board (SSB).   

2.  The applicant states, in effect, that he was ordered to go on a deployment and to attend schooling, both which conflicted with a scheduled Captain Career Course (CCC) date of 4 January 2010.  He was promised that he would be re-deployed in time to attend the CCC, a promise which was broken, in order to have completed it prior to his MAJ promotion selection board, and as a result was a non-selection for promotion.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests promotion of the applicant to the rank of MAJ with an appropriate date of rank or, in the alternative, reconsideration for promotion to MAJ by an SSB.  

2.  Counsel states, in effect, that: 

* the applicant was caused an injustice by being ordered on a deployment and then not being returned in time for completion of the CCC, after being told he would be
* not attending the CCC affected the applicant's ability to meet the requirements for his MAJ promotion board; thus, he was non-selected for promotion
* the applicant was selected for and graduated from the Interservice Physician Assistant Program (IPAP) in 2002
* in 2009, Lieutenant Colonel (LTC) F___, the U.S. Army Medical Command (MEDCOM) Physician Assistance (PA) Consultant informed the applicant that he needed to fill a deployment tasker
* about the same time of receiving news of his deployment, the applicant was also selected for a Long Term Health Education Training (LTHET) program for a PhD in Modeling and Simulation at the University of Central Florida (UCF)
* the applicant informed LTC F___ that he was non-deployable due to a pending maxilla-facial surgery
* the applicant informed LTC F___ that he also had a reservation for the CCC with a report date of 4 January 2010
* LTC F___ instructed the applicant it would "look bad" for him to get out of the deployment and he would get back to him on a different return date from deployment before both events occurred 
* the applicant did not return from deployment until on or about 8 March 2010 
* the applicant was told by LTC F___ "not to worry" because no one had ever been passed over for promotion for not having CCC while in LTHET
* in August 2010, the applicant attended LTHET schooling at UCF
* the applicant was first considered by the MAJ promotion board that met in the summer of 2011, despite not having completed Phase II (resident-course) of CCC
* the applicant was notified on 7 December 2011 that he had been passed over for promotion to MAJ
* the applicant was pulled out of the LTHET program per Army regulations as a promotion non-select with less than 65% of their program completed
* the applicant was put on orders, 29 February 2012, to Fort Hood, Texas and in November 2012, he was notified of his second non-selection for promotion to MAJ
* since the applicant had an active duty service obligation (ADSO) for school, he would be looked at for promotion each year until his mandatory retirement date (MRD) of 30 June 2015
* the applicant followed orders and his superior failed to follow through on his word

3.  Counsel provides a memorandum with 19 attachments.  

CONSIDERATION OF EVIDENCE:

1.  Following prior enlisted service, the applicant graduated from the IPAP and was commissioned in the United States Army Reserve and ordered to active duty on 24 May 2002.  He was awarded the area of concentration (AOC) 65D (Physician Assistant) in the Army Medical Specialist Corps. 

2.  On 1 September 2005, he was promoted to captain (CPT) and on 
20 November 2007, he was appointed as a Regular Army commissioned officer.

3.  A review of his record reveals the U.S. Army Human Resources Command (HRC) issued him a memorandum on 5 December 2012, subject:  Mandatory Retirement Date Due to Non-Selection for Promotion, which stated in pertinent parts:

     a.  The Department of the Army Fiscal Year 2012, Major, Army Nurse Corps (AN), Medical Service Corps (MS), Army Medical Specialist Corps (SP) and Veterinary Corps (VC) Promotion Selection Boards convened pursuant to U.S. Code (USC), Title 10, section 611(a), to consider officers for promotion to the next higher grade.  The established strength ceiling limited the number of eligible officers that could be selected.  Therefore, much to our regret, many highly qualified officers could not be promoted. 

     b.  Unfortunately, you were not among those selected from promotion by the board.  In its comparative judgment of future potential, the board considered such factors as performance reflected by Officer Evaluation Reports, assignments, military and civilian training, and education.  Your non-selection reflects the unavoidable fact that not all of our highly professional officer corps can be promoted through each successive grade.

     c.  Pursuant to USC, Title 10, section 632, you must retire from the Army not later than the first day of the seventh month from the approval of the board, unless on this date you have an active duty service obligation (ADSO), in which case you will be retained on active duty until you complete the ADSO.  Therefore, your mandatory retirement date (MRD) is established as 30 June 2015.  

     d.  In accordance with Army Regulation 600-8-24 [Officer Transfers and Discharges], you may request voluntary retirement to be effective on or before your MRD.  If you do not request voluntary retirement, your retirement will be approved 45 days prior to your MRD as involuntary retirement.  The retirement benefits, orders, and certificates for either voluntary or involuntary retirement are the same.

4.  In a memorandum for the Commander, HRC, subject: Acknowledgement of Mandatory Retirement Date (MRD) due to Non-Selection for Promotion, the applicant initialed next to the sentence: "Voluntary retirement to be effective not later than my MRD of 30 June 2015.  I understand that I will not be eligible for separation pay, as I will be retirement eligible.  The SPD [separation program designator] code on my DD Form 214 [Certificate of Release or Discharge from Active Duty] will be permanently recorded as RBD, sufficient service for retirement."  He signed and dated the memorandum on 7 December 2012.  

5.  His record does not contain a DD Form 214 nor does he provide one as supporting evidence to his application. 

6.  On 15 June 2015, in the processing of this case an advisory opinion was obtained from the Chief, Officer Promotions Special Actions Branch, HRC.  This official stated the applicant's request for promotion to MAJ did not have merit.  The advisory official states: 

     a.  The applicant has not been recommended and/or approved for promotion to MAJ.  Any adjustment of [the applicant's] rank can only occur upon a selection and appointment for promotion to the next higher grade (unless proven otherwise ineligible).  Deployment orders are not uncommon for any Army unit based on mission requirements announced or set forth by the Department of Defense (DOD) which can happen at a moment's notice.  Subsequent to the convene date(s) of any promotion board(s), each candidate such as [the applicant] had an opportunity to correspond directly with the President of the board and its members, to address any issues that he felt were not readily visible by viewing his respective file, including that of which he or other candidates believed were important during consideration for promotion.  Failure to do so does not constitute material unfairness or a material error.

     b.  The Army's Captains Career Course (CCC) is not a prerequisite for promotion to MAJ for Active Army Officers (only Reserve Officers).  Even if his records reflected CCC graduate during the FY11 promotion selection board (PSB), there is or would be no guarantee that he would have been selected.  Upon further review, it appears that his records did reflect that he was a CCC graduate for the FY12, FY13, and FY14 PSB however; he remained a non-select [sic].  The exact reason(s) for [the applicant's] non-selection for promotion is unknown because statutory requirements set forth in Title 10, USC section 613a prevent disclosure of board proceedings to anyone who was not a member of the presiding board.  It can only be concluded that the promotion board determined that [the applicant's] overall record when compared with the records of his contemporaries, did not reflect as high a potential as those selected.  

7.  On 8 July 2015, counsel provided a response to the advisory opinion in which he stated:  

     a.  The advisory opinion focuses on issues not entirely relevant to [the applicant's] case.  

     b.  Counsel and [the applicant] are both well aware of the fact that deployment orders are a part of military life and can on rare occasions impact promotion cycles and opportunities.  However, in the case of [the applicant], his supervisory chain (LTC F___) was well aware of his promotion board date and made affirmative representations to him that he would be returned from deployment in time for completion of the in-residence CCC course.  LTC F___ also direct him to fix the problem with his maxial-facial [sp] surgery and said he would get back to him for a different return from deployment date which would be before the date for surgery and CCC.  LTC F___ did not live up to his promise and as a result, [the applicant] did not return from his deployment in time to attend his CCC slot.

     c.  The failure to complete the in-residence CCC certainly was a detrimental fact in [the applicant's] non-selection to major.  The fact he had been selected to the highly competitive PhD program discussed in the brief is a testament to the quality of [the applicant's] record and indicates he would surely have been promoted to major had he not been prevented from attending CCC.   

8.  Counsel provides the following documents as evidence:

     a.  An email confirmation of a dental appointment for the applicant on 
16 December 2009.

     b.  A webmail course reservation verification for the applicant to attend the AMEDD CCC with a report date of 4 January 2010 and an end date of 10 March 2010.

     c.  Orders 125-1103 issued by Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, dated 5 May 2009, deploying the applicant in a temporary change of station (TCS) status in support of Operation Iraqi Freedom (OIF) to the 
307th Combat Support Forward, Fort Bragg, NC.  He will proceed on 19 June 2009 with an estimated return date of 2 August 2010.  

     d.  Numerous email correspondence with HRC, LTC F___ and CPT B___, his deployment replacement, which discuss his issues.

     e.  Orders 132-701 issued by Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, dated 12 May 2010, assigning him to Army Medical Department (AMEDD) Student Detachment with duty at UCF with a reporting date of 
2 August 2010  

     f.  Orders assigning CPT B___, to replace the applicant on the deployment with an 13 February 2010 report date. 
     
   g.  DD Form 4187 (Personnel Action), undated and not signed, requesting an 180 day curtailment to return early from his deployment (from 25 August to 26 December 2009) to attend CCC, his surgery and attend the LTHET program. 
    
 	h.  DA Form 4037 (Officer Record Brief) shows his MRD of 30 June 2015 and having completed the CCC in 2012.

     i.  Three letters of support, two from former supervisors, that state the applicant is a dedicated officer who deserves promotion to the rank of MAJ. 

     j.  Five-page authored document from the applicant recapping his issues as stated by his counsel.

9.  Title 10, U.S. Code, section 618(f) (Actions on reports of selection boards) states except as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board. 

10.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.

     a.  Promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army.  For centralized promotions, eligibility is based on an officer’s active date of rank (ADOR) and time in grade (TIG).  Promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports.  Promotions to the grade of major and above must be confirmed by the Senate in accordance with Title 10, U.S. Code (USC), section 624c.

     b.  The Secretary of the Army will provide guidance and instructions in an MOI to the board.  The Secretary or his or her designee may modify, withdraw, or supplement the MOI before the board adjourns; however, once the board has convened, the maximum number of officers to be selected may not be increased without the written permission of the Office of the Secretary of Defense.

     c.  Promotion selection boards will (1) base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI; and (2) keep confidential their reasons for recommending or not recommending any officer considered.  For commissioned officers, one of the following methods of selection is used, as directed by the MOI:
		
      (1)  The "Fully Qualified" method, when the maximum number of officers to be selected, as established by the Secretary, equals the number of officers above, in, and below the promotion zone.  Although the law requires that officers recommended for promotion be "Best Qualified" for promotion when the number to be recommended equals the number to be considered, an officer who is fully qualified for promotion is also best qualified for promotion.  Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade.  The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill.

		(2)  The "Best Qualified" method, when the board must recommend fewer than the total number of officers to be considered for promotion.  However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion.  As specified in the MOI for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion.

     d.  SSBs are convened to consider commissioned officers for promotion when HQDA discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request, through Counsel, for promotion to the rank of major (MAJ) or, in the alternative, reconsideration for promotion to MAJ by a special selection board (SSB) was carefully considered.  

2.  The applicant and his Counsel contend that his non-selection to MAJ was a direct result of him not being a CCC graduate.  This was caused by LTC F___ placing the applicant on an OIF deployment and then failing to keep a promise to re-deploy the applicant back in time for attendance to a CCC class date in January 2010 that had been previous scheduled.  

3.  Promotion selection boards use the "whole file concept" when making promotion recommendations.  Board members do not put undue focus on any one item.  They review all evaluation reports, a record of the officer's training history, civilian and military education and other critical elements, the photograph, and awards and decorations.  

4.  Each 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 MOI, 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 are not selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, who are not selected because of selection capability restrictions.

5.  It is unfortunate that the applicant was not selected for promotion to MAJ; however, after a comprehensive review of the evidence in his record and his contentions and arguments in support of his application, other than his dissatisfaction and belief of the reason, the applicant failed to show, by a preponderance of the evidence, that his non-selection for promotion was a result of material error, inaccuracy, injustice, and/or inequity.

6.  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.  The applicant has not provided any evidence that shows a material error existed in his records that would meet the criteria for consideration by an SSB; rather, he stated it was his belief that the board did not select him based on the absence of being a CCC graduate.  However, he was a CCC graduate in subsequent boards and unfortunately, was still not selected by those boards.   

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting his 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)                                         AR20140000849



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ABCMR Record of Proceedings (cont)                                         AR20150006892



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