BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005120 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, in effect, his records go before a Special Selection Board (SSB) for promotion consideration to captain (CPT) in the Michigan Army National Guard (MIARNG). 2. The applicant states, in effect: a. Due to mistakes which were out of his control, he was not selected for promotion to CPT by the Fiscal Year (FY) 2014 CPT Army Medical Department (AMEDD) Mandatory Selection Board (MSB). * this was the second time he was not selected for promotion to CPT * his unit submitted a complete-the-record (CTR) officer evaluation report (OER) for consideration by the FY 2014 CPT AMEDD MSB, however, due to errors in the report, it was rejected by the U.S. Army Human Resources Command (HRC); because of this, the board never saw the OER (implying, had the board seen the OER, he would have been selected) * following his non-selection, he received orders which were discharging him from the MIARNG as of 6 May 2015; this discharge would not only end his military service in the MIARNG, but also terminate his Federal Technician position as a State Occupational Health Specialist, resulting in the loss of both sources of income b. There were additional contributing circumstances which the Board should consider: * he was promoted to first lieutenant (1LT) on 8 November 2008 and became eligible for promotion to CPT in November 2010 * he was scheduled to deploy around that time, but had been assigned to a position with promotion potential only to 1LT; he was denied the opportunity to be placed in a CPT slot, even though CPT positions were available elsewhere in his State * the deployment set back his career progression by 1 year * on his return in August 2011, his unit underwent a number of personnel changes intended to correctly slot him and other officers; these changes took nearly a year to accomplish * he was recognized for his duty performance while deployed, receiving eight awards and one Certificate of Appreciation; he also successfully completed continuing education courses, was given an outstanding OER, and improved his Army Physical Fitness Test (APFT) results * unfortunately, by the time he was transferred to the correct slot, he was no longer eligible due to his new status * in November 2012 he was instructed by his leadership to review his official military personnel file (OMPF) to ensure it contained all necessary and required documentation * he felt certain his OMPF complete as he had just returned from deployment; he, nonetheless, checked and was able to verify the necessary documents were there * he then attempted to review his board file, but received a message stating his file had closed; he never had the opportunity review it * when he informed his leadership his file had closed without his review, he was told it should not matter as long as his OMPF contained the required documents; he learned later this was not the case * he was passed over for promotion because the performance section of his officer record brief (ORB) was virtually empty; his ORB barely contained any of his awards, assignments, deployments, or education c. He took steps to be better prepared for the second CPT selection board. * he meticulously reviewed and vetted his packet; he also enlisted the aid of senior leaders to assess his packet * he completed all recommended and required sections * it was at this time when the CTR OER was rejected by HRC; as further aggravation of the problem, HRC also rejected the corrected copy because it was erroneously identified as being a duplicate d. The above-mentioned errors were substantial and caused him to be passed over for promotion to CPT and, as a result, he faces discharge from the MIARNG. 3. The applicant provides: * memorandum, dated 14 July 2014, from the applicant to HRC * memorandum, dated 25 August 2014, from HRC to the applicant * memorandum for record, dated 10 November 2014, from the MIARNG * applicant's ORB * memorandum of support, dated 11 March 2015 * printout showing the statuses of the applicant's OERs being submitted to HRC * CTR OER for the period 2 August 2013 through 21 March 2014 CONSIDERATION OF EVIDENCE: 1. After prior enlisted service in the U.S. Army Reserve, and the Alabama (ALARNG) and MIARNG, the applicant was commissioned as a second lieutenant in the Medical Service Corps of the MIARNG. He executed his oath of office on 25 January 2006. 2. He was promoted to 1LT with a date of rank and effective date of 10 November 2008. 3. His OMPF contains the following OERs: a. As a second lieutenant: * Annual report for duty as a Health Services Materiel Officer, period: 25 January 2006 through 24 January 2007, Part V (Performance and Potential Evaluation (Rater) shows Satisfactory Performance, Promote; Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows Fully Qualified, Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) has no block checked * Referred Annual report for duty as a Patient Administration Officer, period: 25 January 2007 through 24 January 2008, Part V shows Unsatisfactory Performance, Do Not Promote; Part VIIa shows Do Not Promote , Part VIIb has no block checked; no indication the applicant provided a response * Referred Change of Duty report for duty as a Patient Administration Officer, period: 25 January 2008 through 30 September 2008, Part V shows Satisfactory Performance, Promote, Part VIIa shows Do Not Promote , Part VIIb has no block checked; no indication the applicant provided a response b. As a 1LT: * Annual report for duty as a Medical Platoon Leader (Field Medical Assistant), period: 1 October 2008 through 30 September 2009, Part V shows Outstanding Performance, Must Promote, Part VIIa shows Best Qualified , Part VIIb has no block checked * Referred Annual report for duty as a Medical Platoon Leader (Field Medical Assistant), period: 1 October 2009 through 30 September 2010, Part V shows Satisfactory Performance, Promote, Part VII shows Fully Qualified, Part VIIb has no block checked; the applicant provided comments but they are not included with the OER * Change of Duty report for duty as a Medical Platoon Leader (Field Medical Assistant) while deployed to Kuwait, period: 1 October 2010 through 1 August 2011, Part V shows Satisfactory Performance, Promote, Part VIIa shows Fully Qualified, Part VIIb has no block checked * Referred Annual report for duty as a Medical Platoon Leader (Field Medical Assistant), period: 2 August 2011 through 1 August 2012, Part V shows Satisfactory Performance, Promote, Part VIIa shows Fully Qualified, Part VIIb indicates a below-center-of-mass, retain rating ; the applicant elected not to provide comments * Referred Annual report for duty as a Patient Administration Officer, period: 2 August 2012 through 1 August 2013, Part V shows Satisfactory Performance, Promote, Part VIIa shows Do Not Promote, Part VIIb indicates a center-of-mass (COM) rating; the applicant elected not to provide comments * CTR report for duty as a Patient Administration Officer, period: 2 August 2013 through 28 December 2013, Part V shows Satisfactory Performance, Promote, Part VIIa shows Fully Qualified, Part VIIb indicates a COM rating * the applicant's OMPF shows the CTR OER with through date 28 December 2013 was added to his file on 13 August 2014 4. His OMPF has the following additional relevant documents: a. Two memoranda which notified him he had not been selected for promotion to CPT: * memorandum, dated 27 March 2013, sent to the applicant by the MIARNG, subject: Notification of Promotion Status; FY 2013 CPT, AMEDD, MSB results * memorandum, dated 31 July 2014, sent to the applicant by the MIARNG, subject: Notification of Promotion Status; FY 2014 CPT, AMEDD, MSB results b. Orders Number 021-098, dated 21 January 2015, issued by the MIARNG, showed the applicant was to be honorably separated from the MIARNG effective 6 May 2015. He was transferred to the Retired Reserve. c. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably separated from the MIARNG on 6 May 2015. He completed 9 years, 3 months, and 12 days of net service with 14 years, 4 months, and 10 days of prior Reserve Component Service and 4 months, 8 days of prior active Federal Service. The narrative reason for separation was non-selection for promotion. His NGB Form 22 reflects he was awarded or authorized: * Army Reserve Components Overseas Training Ribbon (2nd Award) * Army Service Ribbon * National Defense Service Medal * Army Achievement Medal * Army Commendation Medal (2nd Award) * Army Reserve Components Achievement Medal (6th Award) * Armed Forces Reserve Medal (2nd Award) and with "M" Device * Michigan Outside of the U.S. Service Ribbon (2nd Award) * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Overseas Service Ribbon 5. The applicant provides: a. a self-authored Memorandum, dated 14 July 2014, addressed to HRC, wherein he requested reconsideration by an SSB for promotion to CPT. In his request he stated he understood, in effect: * the SSB would not consider cases where, by reasonably careful maintenance of records, the Soldier would have discovered and corrected whatever error or omission might have been a basis for non-selection * that he was afforded the opportunity to submit documents to his OMPF, his board file, and to correspond with the board president on any matter he considered important, and failure to do so would not constitute a material error * any documents received outside the established limits, as outlined in the appropriate Military Personnel (MILPER) message would not be considered a cause for reconsideration b. a Memorandum, dated 25 August 2014, from HRC to the applicant denying his request for SSB. The basis for disapproval was: * MILPER message 13-370, issued 20 December 2013, stated OERs must be received, error-free, in the Evaluation Records Branch of HRC not later than 28 March 2014 * this guidance was strictly enforced by the Evaluation and Selection Promotion Division Panel when making their decision c. a Memorandum, dated 10 November 2014, from the Human Resources Technician, ARNG, subject: CTR OER Actions re: [applicant], in which Chief Warrant Officer Two (CW2) SKF essentially stated: * there were two OERs received by HRC on 24 March 2014, which was 4 days before the board cut-off; the first was an annual report and the second OER was a CTR for the period 2 August 2013 through 21 March 2014 * the CTR OER was rejected, corrected, and resent; HRC received it on 1 April 2014 * CW2 SKF received an email from the applicant stating HRC had told him they never received the corrected CTR OER; when she checked she found it was being shown as a duplicate * after verifying it was not a duplicate, but the corrected copy, she resent the CTR OER and it was accepted d. a Memorandum, dated 11 March 2015, from Lieutenant Colonel LDR of the MIARNG, in which he states, in effect: * he highly supports the applicant's efforts to correct his military records * he has known the applicant since 2004 when he assisted him with an administrative error as the Inspector General * he has an outstanding track record as well as expertise in his area of concentration * after first being passed over, he strongly advised the applicant on how to prepare for his final promotion opportunity * he noticed the applicant was going to be in the middle of an evaluation period when the selection board reviewed his file; based on this he recommended the applicant receive a CTR OER * he contends the applicant has a proven and verifiable record of accomplishments * the applicant has taken on the responsibility of the grade above him on numerous occasions and excelled * he recommends the applicant's entire file be taken into account with the inclusion of the CTR OER when the Board considers him for re-evaluation 6. MILPER Message 13-370, issued 20 December 2013, stated, in part, in order for an OER to be reviewed by the board, all OERs must be received in the Evaluation Reports Branch, HRC, no later than 28 March 2014. 7. Army Regulation 600-8-29 prescribes the policies and procedures for promotion of active duty officers. a. Paragraph 7-2 of the regulation states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned officers for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. b. Paragraph 7-3 states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the board did not consider correspondence to the board president that was delivered after the cutoff date for such correspondence established in the promotion board zone of consideration message. c. Paragraph 7-11 states officers who discover that a material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC. Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error. 8. Army Regulation 623-3 (Personnel Evaluation - Evaluation Reporting System) paragraph 3-33 details the preparation and submission requirement of evaluation reports. It states, in part, evaluation reports will be forwarded error-free to reach HQDA no later than 90 days after the "thru" date of the evaluation report. The senior rater is responsible for ensuring the timely submission of the OER. Evaluation reports for selection board consideration must be received at HQDA no later than the receipt date established in the MILPER message announcing the board. The receipt of OERs at HQDA after a suspense date directed by an HQDA selection board will not be an automatic basis for appealing the report or selection board results. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his records should go before an SSB for promotion consideration to CPT because an OER he received for the rating period 2 August 2013 through 28 December 2013 was not available for the board to review. He further asserts he would have been selected for promotion had the OER been in his board file. 2. Promotion reconsideration by an SSB may only be based on erroneous non-consideration or when non-selection occurred as a result of a material error existing at the time of consideration. In addition, the message associated with this board, MILPER Message 13-370, clearly stated documents, to include OERs, had to have been received by HRC not later than 28 March 2014 in order to be considered by the board. 3. The evidence of record confirms the final version of the CTR OER in question was received by HRC after the cutoff date of 28 March 2014. a. It appears the initial version was received at HRC on 24 March 2014, 4 days before the cutoff. This version was rejected, however, because it was administratively incorrect. The final version was not received by HRC until after the board's cutoff date. b. He requested the SSB reconsider his case in light of the above, however he request was denied. The basis for denial was the board's strict adherence to the requirements outlined in MILPER message 13-370 with regard to the cutoff date for documents. c. Although it appears the circumstances which caused the OER in question to be rejected were out of the applicant's control, the applicant provides no evidence showing the fact the CTR OER was not considered resulted in a material error. * the CTR OER was an optional report and there already were eight OERs on file and available for the board's review * five of the eight reports were referred to the applicant for comment * three of the eight reports indicated he should not be promoted * one report from among the eight rated the applicant as outstanding, best qualified * the CTR OER was a COM report which indicated he was performing satisfactorily and was fully qualified d. His contention that he would have been selected for promotion if the OER had been available for review is speculative. As promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, the specific reasons for the promotion board's recommendations are not known. 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) AR20150005120 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005120 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1