IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003788 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003788 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 AR20140002985, dated 3 December 2014. ______________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. IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003788 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, through his Member of Congress, requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20140002985 on 3 December 2014. Specifically, he requests promotion to chief warrant officer four (CW4). 2. The applicant, through his Member of Congress, states: a. The Army Board for Correction of Military Records (ABCMR) made a decision in his case but there was something missing in the record of proceedings. b. In his previous request, he explained in detail that he was told at the time of his promotion board in 1995, his promotion to CW4 was denied because he did not have enough Officer Evaluation Reports (OER) while serving in the rank of CW3 to qualify for promotion. c. The lack of OERs results from the fact that he was a CW2 from 1990 to 1993 while an investigation into the initial problem in 1987 was underway. d. His promotion to CW3 was backdated to 1990. He would have been accruing OERs in the rank of CW3 if he had actually been promoted when he should have been in 1990. e. The OER question was not addressed in the ABCMR decision letter from the Board, dated 9 December 2014. 3. A Congressional staff member provides the following question: "Would the lack of OER's and a lower rank, preclude someone from being promoted, strictly based on that lack of OER's and no other evaluation of the Warrants record?" 4. The applicant provides an undated and unsigned personal statement that starts on page 3 and ends on page 10 and a second statement to his Member of Congress dated on or about 9 October 2015. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140002985, on 3 December 2014. 2. The applicant, in his first request, stated the following: * in 1995, he was denied promotion to CW4 because he had been given a retaliatory OER in 1988 while holding the rank of CW2 * he petitioned this Board to have the OER removed and his petition was approved; however, this led to having too many OERs as a CW2 and not enough as a CW3 * he feels he was punished twice for the same OER; when the Board corrected the injustice, it allowed another to begin * in order to fully understand what occurred in his case, one must read his current petition and previous appeal in its entirety as well as the findings of the Board at the time 3. In the previous Record of Proceedings, it was established that: a. Having had prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army on 15 May 1982, with concurrent call to active duty. b. He completed the Nuclear Weapons Technician Entry Course and the Nuclear Weapons Technician Advanced Course. He was promoted to chief warrant officer two (CW2) on 14 May 1984. He executed a Regular Army oath of office on 14 May 1987. c. Around December 1987, he was assigned to the 70th Ordnance Company, 528th U.S. Army Garrison (USAG), Southern European Task Force, Turkey, as a nuclear weapons maintenance technician. d. During January 1989, he received a "change of duty" OER covering the period 1 September through 31 December 1988, wherein he was rated as a maintenance management officer while assigned to 70th Ordnance Company. His rater rated his performance as "Usually Exceeded Requirements." His senior rater rated his potential evaluation as "4" on a scale from high to low with "1" being the highest and "9" being the lowest. e. Around January 1989, he was assigned to the USAG, Fort Lewis, WA, with duty at the Directorate of Plans, Training, and Mobilization as an operations officer and then as a range operations officer. f. Around April 1990, he was assigned to Headquarters and Headquarters Company, I Corps, Fort Lewis, with duty at the G-3, as a nuclear effects officer and in September as a range facilities officer. g. In 1992, he submitted an application to the ABCMR requesting correction of his records by removing the OER that covered the period 1 September through 31 December 1988 (contested OER), reconsidering him for promotion to CW3, and by paying him back pay and allowances. h. On 25 March 1992, the Officer Special Review Board (OSRB) reviewed his records as a result of his application to the ABCMR and recommended the removal of the contested OER from his records and that the rating period be declared unrated. Based on the OER removal, the OSRB also recommended the consideration of his records by a Special Selection Board (SSB) for promotion to CW3 under the 1989 promotion criteria. i. On 20 August 1992, the ABCMR notified the applicant that as a result of the OSRB review, the contested OER was removed from his records and his records were considered by an SSB that selected him for promotion to CW3 with an effective date and date of rank of 1 January 1990. j. Orders issued on 21 August 1992 promoted him to CW3 with an effective date and date of rank of 1 January 1990. k. In March 1993, he completed the Signal Systems Maintenance Technician WO Basic Course. In or around July 1993, he transferred to the 4th Aviation Regiment, Fort Carson, CO, as a company executive officer, and in October 1994, to the 124th Signal Battalion, also as a company executive officer. l. He retired on 31 December 1995 in the rank of CW3. He retired based on sufficient length of service. 4. During the processing of the applicant's previous case, an advisory opinion was obtained from the U.S. Army Human Resource Command (HRC), Officer Promotions Special Actions Branch. The advisory opinion states: a. Based on a review of their records and the information provided, they find that the applicant's request for reconsideration for promotion to CW4 by an SSB does not have merit. b. In its original determination, in ABCMR Docket Number AC91-09256, dated 26 August 1992, the ABCMR directed the removal of a contested OER for the period 1 September 1988 through 31 December 1988 from the applicant's records. It was replaced with a statement of non-rated time and he was granted an SSB for reconsideration for promotion to CW3, which resulted in a recommendation and promotion with a date of rank of 1 January 1990. c. There are no records available to support his claim that he was denied promotion to CW4 based on the retaliatory OER received in 1988. As noted in the documents provided to them, the OER in question was removed from his record prior to the SSB and his promotion to CW3; therefore, such a report could not exist for any additional boards. d. The exact reason(s) for the applicant's non-selection for promotion(s) are unknown because statutory requirements set forth in Title 10, U.S. code, 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(s) board determined that his overall record when compared with the records of his contemporaries, did not reflect as high a potential as those selected. Any further comment(s), remark(s) or statement(s) in regards to his non-selection are purely speculative. 5. The applicant provided a response to the advisory opinion stating: * it does not appear HRC read his appeal or understood what actually happened * regardless of HRC's opinion, there is sufficient evidence to support his request for promotion * he understands why HRC found him unfit for promotion; his record was lacking the necessary OERs * HRC's indication that they corrected the record, backdated promotion, and removed the OER is misleading * although he was granted a date of rank of 1 January 1990, this did not happen until 1993; he spent almost 4 years being rated as a CW2 * when the CW4 promotion board met in 1995, he only had 4 OERs as a CW3; others had an average of 8 to 10, it was unfair to him * when he called HRC about his then non-selection, he was told he did not have enough OERs in his records * a senior officer at Fort Carson even confirmed to him (the applicant) that with this number of OERs he did not stand a chance * he served in very senior positions with a high level of responsibility and he received multiple awards, including the Legion of Merit, and he also received outstanding OERs 6. In support of his previous request, he provided a self-authored narrative stating the following: * in 1992, U.S. Army investigators reviewed much of the documentation and determined those who were responsible did in fact perform outside the regulations * their actions resulted in an unfair treatment even after an illegal OER was removed from his records * both officers (rater and senior rater) responsible for this matter were removed from the service * he was denied promotion due to his backdated date of rank and lack of OERs at the grade of CW3 * the unit commander tried to blame him for a missing nuclear weapon locking device to cover for the person who actually lost the device * the applicant was cleared of any wrongdoings and the contested OER was removed from his records * although promoted retroactively, the lack of OERs at the higher grade affected his promotion opportunities * he was forced out of the military by the illegal actions of those who failed their responsibilities REFERENCES: 1. 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. 2. Army Regulation 600-8-29 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 date of rank and time in grade (not the number of OERS on record). 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 CW3 and/or major and above must be confirmed by the Senate in accordance with Title 10, U.S. Code, section 624c. b. The Secretary of the Army will provide guidance and instructions in a Memorandum of Instruction (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 Headquarters, Department of the Army (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. 3. Army Regulation 623-105 (Officer Evaluation Reporting System (OERS)) in effect at the time, established the policies and procedures for the OERS. The primary function of the OER is to provide information to HQDA for use in making personnel management decisions. The information provided on the OER, combined with the Army’s needs and individual officer qualifications, is used as a basis for personnel actions to include promotion, elimination, retention on active duty, reduction in force, command selection, school selection, assignment, specialty designation, and Regular Army integration. Thus, each OER must be a comprehensive appraisal of the officer’s abilities, weaknesses, and potential. Evaluation reports are mandatory for these events: annually (12 months), change of rater, change of duty, performance of temporary duty or special duty, officer failing selection by a mandatory Regular Army promotion board, relief for cause, or directed by HQDA. Reports are optional for senior rater or rater optional reports. An OER may be generated after a minimum of 90 days of rating by the rater. 4. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. It provides that: a. The ABCMR considers individual applications that are properly brought before it. b. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. c. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. d. The ABCMR will decide cases on the evidence of record. It is not an investigative body. DISCUSSION: 1. The applicant's request for reconsideration of his previous request for promotion to CW4 is based on his contention that he was not selected for promotion due to not receiving sufficient OERs while serving in the rank of CW3. 2. In many instances, Army officers are selected for promotion by SSBs with backdated dates of rank. Several of these officers are subsequently considered for promotion to the next higher grade with a limited number of OERs in their files due to the circumstances surrounding their previous promotion. Some of these same officers are selected for promotion to the next higher grade and, unfortunately, some are not. However, the non-selection for promotion of these officers does not constitute an injustice or a material error. 3. As stated in the previous Record of Proceedings, selection boards use the "whole file concept" when making promotion recommendations. Board members do not put undue focus on any one item to include the number of OERs received in particular grade. Selection board members review all evaluation reports, a record of the officer's training history, civilian and military education, the photograph, awards and decorations, and other critical elements. 4. Title 10, U.S. Code, section 613a prevents disclosure of board proceedings to anyone who was not a member of the presiding board. Therefore, any presumption, suspicion, comments, conjuncture, or hearsay for non-selection are purely speculative. Therefore, by law any comments made by officers or personnel managers concerning the applicant’s promotion file for CW4 are speculative, hearsay, or their personal opinion. These individuals made speculative comments that have aggravated the applicant for more than 20 years based on his lengthy personal statement reviewed by the previous board and this board. The applicant provided no sworn statements from these individuals to support his contention that he was not selected for promotion based on an insufficient number of OERS as a CW3. Evaluation reports are written for a myriad of reasons as defined by the applicable regulation. At a minimum each report must cover a period of 90 days. Therefore, the number of OERs in an officer’s personnel file is dependent on many factors notably what regulatory requirement was met to generate a report. 5. Each promotion selection board considers all officers eligible for promotion consideration (zone of consideration based on time in grade and time in service, not the number of OERs on record) but it may only select a number within established selection constraints as determined by HQDA. The Secretary of the Army, in his MOI, establishes limits on the number of officers to be selected for promotion. Therefore, the decision not to select him for promotion at that time does not mean he was not a quality officer; rather, it is indicative of the very competitive nature of the promotion system and the ultimately the needs of the Army. 6. SSBs are convened to consider commissioned officers for promotion when HQDA discovers that an officer was not considered for promotion by a regularly scheduled board due to an administrative error or when the action by a board, which considered an officer, was contrary to law or involved a material error. 7. It is not part of the ABCMR's mission to act as a promotion board. Based on this fact, the ABCMR can only direct that the applicant's records be reviewed by an SSB for promotion to CW4; however, in order for an officer to qualify for an SSB, his/her record must show that material error existed at the time which precluded their selection for promotion. There is no such evidence in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003788 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003788 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2