IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005474 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: 25 August 2016 DOCKET NUMBER: AR20150005474 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005474 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 records by invalidating his Fiscal Year 2010 (FY10) through FY14 non-selections for promotion to lieutenant colonel (LTC). In effect, he requests his records be submitted before Special Selection Boards (SSB) for consideration under each respective year's criteria. 2. The applicant states the following: a. He is requesting relief in order to remedy the adverse effects of a recent change to his Active Date of Rank (ADOR), which he believes should have resulted in SSB promotion reconsideration. Based on the recommendation of the Personnel, Planning, and Training Office (PP&TO) of the Judge Advocate General's Corps (JAGC), he submitted an SSB request pertaining to this issue. However, the request was denied, which he and others senior to him with whom he has spoken to believe was due to the U.S. Army Human Resources Command (HRC) Promotions Branch not fully understanding the significance of the incorrect ADOR and its material effect on his promotion file. b. To be made whole, he respectfully requests the Army Board for Correction of Military Records (ABCMR) review his complete file, facts, and circumstances comprehensively, in order to render a determination of whether or not the issue related to his incorrect ADOR and its subsequent/recent correction is material and should therefore warrant convening of SSBs so that his promotion files, with the corrected DOR, may be considered against the proper populations of officers. c. This request includes a second issue for which he is requesting relief, which is undocumented professional military education (PME) waivers. The PME waiver issue is related to the incorrect ADOR and therefore integrated in the ADOR issue but also stands as an independent matter that arose prior to the incorrect ADOR discovery and is more thoroughly discussed below. At the heart of the PME waiver issue is The Judge Advocate General's (TJAG) 2008 waiver of his Judge Advocate Graduate Course (Graduate Course) attendance. Acting on the incorrect ADOR and other factors, TJAG waived this mandatory assignment in an effort to more immediately align his career with others of his rank. However, as an unintended consequence, the waiver created the unexplained absence in his file of a Graduate Course and an otherwise mandatory educational assignment when being considered for promotion due to HRC policies restricting the types of documents that can be included in a promotion file. If it is determined his situation warrants SSB reconsideration, regardless of how that determination is made, any such reviews should occur only after his promotion files are corrected such that there is an acceptable and inconspicuous credit reflected for his Graduate Course waiver. Likewise, if his promotion files are reviewed by SSBs, his FY11 promotion file must also include the approved award described below that was omitted from the FY11 file due to administrative error. d. In September 2013, the PP&TO of the Army's Office of the Judge Advocate General (OTJAG) discovered they had miscalculated his ADOR when he reentered the active component of the JAGC in October 2008. The new ADOR is significant because it shifted his primary zone (PZ) for LTC consideration from FY10 to FY11. Consequently, he was inadvertently and prematurely considered for LTC in the PZ in FY10. Incorrect PZ consideration in FY10 meant he was also considered in the incorrect zones and against the incorrect populations of promotion candidates in the FY11-FY14 LTC promotion boards. Further, the incorrect ADOR contributed to what he contends are a myriad of prejudicial effects reflected on his promotion file, as assignment decisions, PME attendance, and evaluation report sequencing were all understandably influenced by the assumptions that his ADOR was correct and that he was PZ for LTC in FY10. e. Notably, career manager decisions that he would not attend the mandatory Graduate Course and a resident version of intermediate level education (ILE) were also understandably influenced by the prematurely senior ADOR. In fact, as discussed below, seniority was one of the factors when TJAG made the rare move of waiving his Graduate Course attendance requirement to fill a critically short billet, and was more than likely a factor when PP&TO later decided not to send him to Graduate Course after that assignment, since he was incorrectly screened as a more senior major (MAJ) than in fact he was (as reflected by the subsequent adjustment of his ADOR). This reflects yet another career management decision that was exacerbated by the incorrect ADOR and was made at the expense of his promotion file's competitiveness. f. The cascading and direct effects of the incorrect ADOR are palpable and difficult to overlook. Every time his inaccurate file was reviewed for promotion and non-selected when it might have been selected under the correct information represents another juncture at which the incorrect ADOR had a lasting material effect. In their DOR computation documents, PP&TO envisioned an SSB as the appropriate remedy for their correction of his ADOR. The misunderstanding or disconnect must be substantial when the personnel management division of the JAGC recommends what he petitioned for and the Army's Promotion Branch arrives at a completely opposite conclusion. Further, the absence of mandatory PME is also a promotion file discriminator that could have been ameliorated with a less senior ADOR. To him and others senior to him in the JAGC with whom he has spoken, the absence of Graduate Course on his record, without explanation as to why it is missing, is enough of a discriminator in itself to justify an SSB with instructions that board members should refrain from drawing negative inferences to the conspicuously missing educational milestone. However, he believes the Promotions Branch did not comprehend the gravity of not having this mandatory educational experience in his JAGC record when they denied his SSB requests. g. His petition below comprises two major components, in accord with his past SSB requests, and provides a more detailed account of this summary and background. His overall theme is that, when reentering the active component in 2008, his expectations were that of a contract between the Army and him. His obligation in the contract was volunteering his service for the Army in a time of high operational tempo and limited manpower. As a return obligation, while he did not expect automatic advancement, he did expect the Army to situate him for as fair a chance at career progression as possible. h. This petition highlights two situations in which he believes the Army breached their commitment to such an extent that the shortcomings ought to be addressed. When he reentered the Army in 2008, he detrimentally relied on the assumption the Army would not miscalculate his ADOR and zones of promotion consideration. He also detrimentally relied on the assumption that TJAG's Graduate Course waiver would be adequately accounted for when it came time for promotion consideration or he would have been afforded the opportunity to attend at some opportune point in his career; in fact he hinged his decision to follow through with his active duty accession on that very assumption. Since neither of those assumptions was verified, he now seeks the Board's help in redressing their harmful effects. i. While it is impossible to reverse engineer every promotion file effect resulting from the incorrect ADOR or TJAG Graduate Course waiver, the FY11-FY14 promotion boards should at least be afforded the opportunity to review his promotion file with the corrected ADOR, in the correct promotion zones, and against the correct population of promotion candidates. The margin of error is much too small and the risk of prejudicial effect due to the incorrect ADOR is much too high to not reopen his corrected record for reevaluation. While he is aware requests for SSBs are not a forum for contesting the rationale for a board's decision and he does not intend to do so here, he refers to a small margin of error because his assignment history and evaluations are consistent with those characteristics of selected officers, as delineated in PP&TO's most recent promotion board analyses for FY13 and FY14 made available to JAGC officers. As such, any objective criteria would conclude the board results must have been close, and if the results were close, errors in his file should not be taken lightly. j. For the reasons stated above, and as fully discussed in the following detailed petition, he respectfully requests the ABCMR determine that his incorrect ADOR and its subsequent/recent correction is material and that his promotion file should updated to reflected his newly corrected ADOR, that he should meet appropriate SSBs, and any other remedy that the Board finds appropriate. k. His request is based on two primary issues as follows: (1) SSBs should have been convened for the FY10-FY14 promotion boards due to the incorrect ADOR in his board file and the negative and prejudicial effect the incorrect ADOR had on his promotion competitiveness. His ADOR was corrected from 29 November 2005 to 6 May 2006. (2) SSBs should have been convened for the FY10-FY14 promotion boards due to the lack of official annotation or explanation for the absence of the Judge Advocate Graduate Course and Satellite ILE in his board file, when his non-attendance at those otherwise required PME courses was decided by the Army and not a personal choice. l. The centerpiece of his argument is that the Promotion Branch's SSB denials were flawed in three primary ways and that their incorrect conclusions coupled with fundamental fairness and equity warrant his requested relief: (1) Promotions Branch failed to consider that an incorrect ADOR directly impacted, among other things, performance evaluation sequencing in his promotion file, assignment sequencing decisions by his career managers, and his ability to attend career PME requirements. (2) Promotions Branch failed to consider that the incorrect ADOR, on its face, is a significant material and prejudicial error in his promotion file that, now corrected, is worthy of SSB reconsideration on its own merits. (3) Regarding the undocumented waivers of Graduate Course and Satellite ILE, Promotions Branch's assertions about PME are inaccurate and contradictory, and avoid addressing the circumstances that contributed to the absence of his mandatory military education requirements which to members of Judge Advocate promotion boards can be immensely consequential. (4) Summary. An objective assessment of the history of his missed schooling, misaligned evaluations, and modified career management due to the incorrect ADOR, coupled with involuntarily waived schooling requirements that were exacerbated by the incorrect ADOR, would conclude that SSB promotion reconsideration relief is warranted. m. Background. In September 2013, the JAGC PP&TO discovered that his ADOR was incorrect due to their miscalculation when he transferred from the Reserve to the active component in October 2008. PP&TO corrected the ADOR from 29 November 2005 to 6 May 2006 and encouraged him to apply for SSB relief. He did so contending that the incorrect ADOR on his FY10-FY13 promotion files constitutes "material error" or an absence of "material information" per Army Regulation (AR) 600-8-29 (Officer Promotions), chapter 7 (SSBs), criteria for convening SSBs. n. PP&TO indicated that they supported his request in the remarks section of the attached "Computation of Date of Rank" Form 100 ("Due to this major material error, the officer was erroneously boarded for the LTC/JAGC PZ during the FY2010 PSB when he should have been boarded in the PZ in FY2011.") and in the remarks section of the "Promotion Consideration" Form 75 ("Officer's correct ADOR of 6 May 2006 warrants an SSB for the FY11, LTC, JAGC, PSB in the Primary Zone."). Although this supporting documentation only suggests an SSB for FY11, he contends that logically, the same incorrect ADOR coupled with the collateral effects of that error detailed in this request, demand SSBs for FY12 through FY14 boards, as well. o. SSB Request Denial. The SSB's denial was based on the premise that "the board members vote the files with the PZ and the Above the Zone (AZ) mixed in together" and thus, it does not matter whether he was PZ or AZ in FY10 and FY11. While this statement is technically true regarding how board files are considered, it sidesteps the following 6 important realities, identified as effects 1 through 6 below, about how board files are competitively selected. p. Effect 1: Incorrect zones of consideration for FY10-FY11 boards: (1) FY10 board. The new ADOR pulls his file outside of the FY10 PZ. Therefore, his promotion file should not have been considered PZ in FY10. The incorrect ADOR resulted in the inherently unfair consideration of his PZ file against the wrong population of officers. (2) FY11 board. His promotion file was considered AZ for the FY11 board but should have been considered in the PZ. The selection rate for AZ candidates is much lower than the rate for PZ candidates for any given promotion board. Therefore this material error resulted in the inherently unfair consideration of his AZ file with its corresponding outdated ADOR, misaligned evaluations, and career sequencing being considered against PZ candidates. (3) Statistical Disadvantages. PP&TO provided him with the attached chart depicting promotion rates for FY06 through FY13. Comparing the FY10 and FY11 board results, the LTC PZ selection rate for Judge Advocates was higher in FY11 (76.4%) than it was in FY10 (70.8%) or FY12 (64.6%). Thus, with the correct ADOR, he would have been PZ during an FY that had a higher PZ selection rate. Further, being AZ in FY11 was also to his disadvantage as the FY11 AZ selection rate was lower than in FY12. Based on FY11's PZ and AZ selection rates, the probability of his selection to LTC would have been higher if his promotion file was in the FY11 PZ population rather than in the FY12-14 AZ populations, as it should have been. (4) Effect 1 Summary. In denying his SSB by simply pointing out that PZ and AZ files are evaluated together, Promotions Branch overlooked that his promotion file should have been evaluated PZ against the correct FY11 population of officers, which would have resulted in: a) Competing against a different population of PZ officers who had not been PZ in FY10. b) Competing against a different population of AZ officers in FY12, FY13, and FY14, some of who were not AZ in those years and all of who were in different zones of consideration (PZ, first time AZ, second time AZ, etc.). c) A different set of OERs arrayed in anticipation of the appropriate PZ look. d) A likely different array of assignments as his career managers aligned his assignment history before the appropriate PZ board. e) A different record of completion of PME. q. So, while it may be true that PZ and AZ board files are considered together during a promotion board, it overlooks the fact that his ADOR correction also changed him to an entirely different year group, which meant a different PZ consideration year with the different circumstances laid out above. The promotion boards are not conducted in a vacuum; there are variables in every one of them. He was not afforded the opportunity to compete against the correct populations of officers; therefore, appropriate SSBs should be convened. r. Effect 2: Disadvantageous OER sequencing effect on FY10-14 board files: (1) A 28 February 2010 OER (Center of Mass - 5 month rating period) was added to his file immediately prior to the FY10 board. He was informed by his rating chain that this OER was generated only because he was facing a PZ consideration in April 2010 and his rating chain deemed it important to document his combat theater service before the important PZ look. Had his rating chain known at the time that the FY10 board was not, in fact, his PZ look, this 5 month OER would never had been added to his file. (2) The out-of-cycle extra OER in his promotion file created two unfavorable situations that materially affected his promotion file competitiveness: a) The Extra OER reflected an abbreviated 5-month rating period. This also resulted in a shortened (8 months) subsequent OER. Because of senior rater profile constraints within the abbreviated period, the extra OER was "center of mass." ) To summarize, if his ADOR had been correct the OER strength of his promotion file would not have been weakened with an extra center of mass OER and his promotion file would have contained one 12-month above center of mass OER for that period, a far more advantageous situation than having two short-term OERs, one of which was a center of mass. s. Effect 3: Deprived actual PZ promotion file of 16 months development. (1) The FY10 promotion board was unique in that it convened in April 2010 due to HRC's move to Fort Knox, KY. This created a 16-month gap between the FY10 and FY11 boards. Ordinarily, there is a 12-month gap between FY boards. (2) On its own, the incorrect ADOR deprived his PZ promotion file of 12 months of development before the appropriate FY11 PZ board reviewed it. With the FY10 board in April 2010 and the FY 11 board in August 2011, the incorrect ADOR actually deprived his promotion file 16 months of development before the appropriate FY11 PZ board. t. Effect 4. Contributed to non-attendance at Graduate Course and ILE. (1) Graduate Course (see Graduate Course waiver details below). While TJAG initially waived his Graduate Course requirement in 2008 to fill a critically short billet, a corrected ADOR would have given him more time flexibility to complete this career educational requirement once completed with that assignment. Thus, the incorrect ADOR contributed to his non-attendance of a 10-month resident career educational requirement. The absence of Graduate Course on his promotion file is a significant material effect of the incorrect ADOR. (2) Satellite ILE. Because his Graduate Course requirement had been waived, he was initially prioritized to attend a 4-month Satellite ILE course. However, upon his assignment to the newly formed Fort Bliss, TX, Brigade Combat Team (BCT) that was deploying within a year and was in dire need of a dedicated Judge Advocate, PP&TO also waived his ILE Resident or Satellite requirement and directed him to complete the Reserve component correspondence version of ILE Common Core (CC) known as the "Distance Learning" (DL) of ILE-CC. (3) Since he was PZ in FY10 (due to the incorrect ADOR), in order to be as competitive as possible for the FY10 board, he took it upon himself to complete ILE-CC (DL) via correspondence during the busy months prior to and during the first half of their deployment in order to finish it in time for the April 2010 PZ board. Indeed, he scheduled his rest and recuperation leave in March 2010 to ensure a dedicated two weeks to complete ILE prior to the FY10 PZ board. (4) Once he had hurriedly completed ILE prior to the FY10 board that turned out not to be his PZ consideration, there was no reversing course. From that point forward, the ILE on his record was a correspondence course version that was completed in reliance of the now incorrect ADOR. (5) As with the Graduate Course, a corrected ADOR would have given him more time flexibility to complete this career educational requirement once those operational needs were satisfied. Thus the incorrect ADOR contributed to his non-attendance of both a 10-month and a 4-month resident career educational requirement. (6) Amplified effect of 6-month ADOR change. While the change to his ADOR was just under six months (29 November 2005 to 6 May 2006), it might not be obvious how he contemplate satisfying both the 10-month Graduate Course and 4-month ILE if his ADOR was correct. As mentioned above, the 6-month ADOR change actually translates into 16-months of additional career development time between PZ considerations since, a) his PZ changed from FY10 to FY11 because of the ADOR change (12 months), and b) the HRC move in 2010 resulted in boards being held in April of that year instead of the traditional August dates (4 months). Thus, the 6-month ADOR error actually translated into 16 more months of career and promotion file development between the incorrect and correct PZ boards. u. Combined Effects of no Graduate Course or Satellite ILE: (1) Educationally incomplete. Without Graduate Course and Satellite ILE, he lacked the two requirements to be Joint Professional Military Education (JPME I) qualified per Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management):" .. [u]pon graduation from the Graduate Course, judge advocates must complete ILE either in residence at Fort Leavenworth, KS or at a satellite location. After completion of the Graduate Course and ILE, the judge advocate will be JPME I qualified." (2) Different ILE Academic Evaluation Report (AER) than peers. Correspondence ILE results in a watered-down AER compared to Satellite or Resident ILE as "Contribution to Group Work" and "Evaluation of Student's Research Ability" are not evaluated for distance learning ILE. (3) Different magnitude of ILE than peers. The FY13 JAGC LTC PSB analysis attached illustrates the difference in promotion success between those who attended the full one-year Command and General Staff College (CGSC) (100% selection rate) versus those who attended a non-resident version such as Satellite ILE or correspondence course (40% selection rate). Since his ADOR error deprived him of 16 months of career development time, he was unable to even compete for the more viable CGSC version of ILE. (4) Further discriminating promotion file. While most Judge Advocate candidates for LTC have completed Graduate Course and a resident-version of ILE, he has completed neither, further adversely distinguishing his promotion file from virtually everyone else in consideration. (5) Resident ILE. With the correct ADOR, he would have had more time and a more developed record to allow him to compete for attendance at the prestigious yearlong ILE (otherwise known as CGSC) residence course at Fort Leavenworth, KS. However, he was not even able to compete for such selection once he hastily completed correspondence ILE in advance of the incorrect FY10 PZ board. v. Effect 5: "Domino Effect" on multiple career management decisions. (1) Rarely will PP&TO consider a JAG MAJ for a competitive, career enhancing next assignment when that officer is non-selected in PZ. As a result, his incorrect ADOR had immediate negative effects on his assignment history and has a lasting impact on his future promotion files. (2) To illustrate this dynamic and to show how his incorrect ADOR directly impacted his assignment history, he provides the following timeline of events: (a) Spring 2010, while deployed to Iraq in the competitive, TJAG-selected position of BCT Judge Advocate, FY10 board incorrectly reviews his file as PZ and does not select him for promotion. (b) Fall 2010: PP&TO contacts him in Iraq (via his leadership at Fort Bliss), offering his next assignment as the Judge Advocate assigned to the US Sending State at the US Embassy in Rome, Italy. This is an uncompetitive posting within the JAGC. He declined the offer for that very reason. (c) Winter 2010: As an alternative, PP&TO selects him for the JAG civilian LLM (Master of Laws) study program at the University of Virginia for his next assignment. At the time, the civilian LLM program, although not as uncompetitive as the Embassy position, was also an uncompetitive assignment. His preference was to go to the previously waived Judge Advocate Graduate Course as his next assignment (3) There is nothing cryptic about the turn of events, above. He had been passed over once and since PP&TO knows the chances of AZ selects are significantly lower, they only offer him non-competitive postings, despite his strong record as a deployed BCT judge advocate in Iraq. However, if his ADOR and PZ were correct and his promotion file had not been considered at all in FY10, PP&TO would have likely offered him competitive postings since he would be facing a PZ consideration the next year. w. Effect 6: Incorrect ADOR reflected on FY10-FY13 promotion files: (1) On its face, the incorrect ADOR on his FY10-FY13 promotion boards is enough of an error to warrant SSBs. The error is even more noticeable to promotion board members because the promotion file ADOR involves an altogether different year (2005) than his corrected ADOR (2006), and not just an adjustment of a few days, weeks, or months within the same year. (2) For the FY11-FY14 promotion boards, the incorrect ADOR is not only a material error but also carries the added negative inference of prior non-selection(s). Rightly or wrongly, promotion board members can see dates of rank, are aware of which ADORs fall outside of that board's PZ, and consider those files in the PZ more earnestly for promotion. That trend is why promotion rates for PZ are much higher than AZ. Consequently, that is why more emphasis is placed on developing an officer's record before the important PZ consideration. Thus, an incorrect ADOR that categorized him as AZ in FY11 when he should have been PZ was an immensely consequential and discriminating error. Further, chances of selection for promotion diminish after each non-selection. Thus, consideration as a second time AZ in FY12 when he should have been first time AZ (and third time AZ in FY13 when he should have been second time AZ, etc.) is also a promotion board discriminator and illustrates the unique set of circumstances as to why the ADOR error demands SSBs for each of the promotion considerations affected by the error. x. Issue 1 Request: For his FY11-FY14 boards, he requests SSBs be convened for the material error of an incorrect ADOR (FY11-13 boards) and the incorrect ADOR and PZ's negative and prejudicial effect on his promotion file competitiveness (FY11-FY13 and FY14 boards). Once convened, he requests: (1) The ADOR be corrected on his FY10-13 board files. (2) Board members should be advised not to draw any negative inferences from the effects of the incorrect ADOR, such as non-attendance at Graduate Course and Satellite ILE, assignment to the civilian LLM program, and broken up periods of evaluations within the two years prior to the board's consideration. y. Issue 1: Immaterial Error and Reasonable Diligence. AR 600-8-29 (Officer Promotions) paragraphs 7-3(b) or 7-11(c) require administrative errors or omissions to have a material effect on a promotion file and that the petitioner has exercised due diligence in rectifying the errors. Accordingly, issue 1 does not constitute an immaterial error or a lack of reasonable diligence situation for which an SSB would not be authorized for the following reasons: (1) Materiality. As a reservist MAJ entering active duty with 2 years time in grade and an approaching PZ window, ensuring a correct ADOR was extremely material because a prematurely senior ADOR would have permanent evaluation and military education effects on his promotion file, not to mention it would affect the very PZ window he would fall in. (2) Due diligence. Because of this materiality, PP&TO and he engaged in discussions in 2008 about possible courses of action that would adjust his ADOR to make me less senior MAJ and availing him more time in grade for critical evaluations and schooling prior to the LTC PZ board. However, PP&TO inadvertently overlooked an Army regulation provision that would correct his ADOR to a less senior one, and only discovered their oversight in September 2013. He, as the member, has been negatively affected by PP&TO's error. z. Issue 2: PME requirement waivers: (1) Summary of Request. In this section, he provides details about a second issue for which, on its own merits, he believes SSBs should have been convened. Similar to the ADOR issue, he previously submitted SSB requests regarding his PME waivers, however, those requests, too, were denied. He believes Promotions Branch did not fully understand the significance of the lack of Graduate Course--without official explanation or credit for its absence--and its material effect on his promotion file. To be made whole on this issue, he respectfully requests the ABCMR determine that the absence of Judge Advocate Graduate Course on his record without credit or explanation, is an absence of material information and his promotion file, updated with either constructive credit or appropriate board instructions, should meet appropriate SSBs and any other remedy that the Board finds appropriate. He further requests that Board members should be advised not to draw any negative inferences from his completion of ILE via correspondence instead of at a satellite location or the full residence version. (2) Background. In the normal course of an Active Component Army Judge Advocate's career, JAG captains who get selected for promotion to MAJ are required to either attend Graduate Course, defer it for a year (some have been known to defer for up to 2 years), or decline to attend Graduate Course and separate from the Army. As a junior MAJ transitioning from Reserve to Active Component JAG Corps, he was projected to attend the 57th Judge Advocate Graduate Course in August 2008 following his selection for Active Component earlier that year. aa. For Graduate Course funding purposes, there were concerns his Active Component accession would not get Senate approved prior to the start of the 57th course. Accordingly, alternate courses of actions were considered, such as initially funding his Graduate Course attendance from Reserve Component resources. However, two weeks prior to the start of the 57th Graduate Course, TJAG) waived his attendance because, according to his telephone communications with PP&TO: (1) Senate approval of his active component accession, delayed during the election year, had become increasingly unlikely to occur before the 57th Graduate Course commenced. (2) The newly-formed and soon-to-deploy 1st BCT, 1st Armored Division, Fort Bliss, TX, was critically short its BCT Judge Advocate. (3) JAGC leadership was concerned he would be too senior in rank to defer Graduate Course attendance to a later year. (4) He had completed the two-week, in-residence, Reserve Component Judge Advocate Officer Advanced Course. bb. Based on the factors above, combined with his prior military leadership experience, experience as a Reserve Component and civilian attorney, maturity, professional judgment, and readiness to serve immediately as a BCT Judge Advocate, TJAG waived his Graduate Course attendance. The waiver allowed him to immediately serve as a BCT Judge Advocate and permanently waived his requirement for Graduate Course attendance. However, the waiver does not provide for an Officers Record Brief (ORB) or Army Military Human Resource Record notation of "Graduate Course completion." Nor does it reflect as constructive credit for Graduate Course as he believes it should. When PP&TO articulated the factors above to him in August 2008, they were essentially telling him TJAG was convinced, based on all factors, that he did not need graduate course and was confident he was ready for the demanding post-graduate BCT JA Assignment. cc. The major concern he has with this arrangement is that promotion board members are not aware of the background factors for him not attending Graduate Course. All they see is that Graduate Course is missing from his record and is not where they normally see the course fall somewhere in the first 2 years of a JAG officer's time in grade as a MAJ. There is a failure to distinguish him, an officer who TJAG granted an equivalency of attending based on his background and performance, from an officer who elected not to attend Graduate Course or started but failed to complete its requirements, neither of which are career enhancers in the eyes of the promotion board members. But those scenarios must be distinguished from his in order to deflect any negative inferences promotion members might draw from his lack of Graduate Course. dd. The other major concern he has with the arrangement is that in his conversations with both leadership and PP&TO shortly after the waiver, he learned that the critical fill at Fort Bliss was ultimately the weightiest of the above factors that drove the decision to waive his Graduate Course. After arriving at Fort Bliss, his Staff Judge Advocate confided to him that PP&TO's determinative factor for his Graduate Course waiver was that the new 1st BCT at Fort Bliss had been overlooked and was in critical need of a BCT JA. During a subsequent Article 6 visit to Fort Bliss, the Chief of PP&TO also indicated that his unexpected availability (after the Graduate Course waiver) was fortuitous because it provided them someone to fill the Fort Bliss slot. ee. Regarding this issue, while he was happy to assist the Army and JAGC during a high operational tempo and in a time of limited personnel resources, his concern is that it became clear to him that his future promotion file effects from waiving Graduate Course did not immediately concern his personnel managers as much as it did him. Further, it helped him understand why there was not a more concerted effort to work alternate solutions for his attendance at the 57th Graduate Course such as allowing him to attend as a Reservist with Reserve Component funds in the face of the immediate obstacle of waiting for Senate approval of his accession. ff. He is providing a 20 July 2012 memorandum from the Chief of PP&TO, as documentation of the Graduate Course waiver since most of the communications surrounding the waiver in 2008 were telephonic. In 2012, PP&TO produced the memorandum at his request and it was intended as a document he could ask the promotion board members to consider, if he chose to do so caveated by their recommendation that he avoid exercising the letter to the president option so as to not draw undesirable and potentially discriminating attention to his promotion file. However, the memorandum implies that the correspondence and 2-week resident "JAOAC" served as an adequate substitute for the 9-month, American Bar Association (ABA) accredited LL.M producing Graduate Course. Logically, Graduate Course is not anywhere close to being a replacement for JAOAC, particularly in the eyes of promotion board members, and simplifying his lack of Graduate Course to this singular reason sidesteps the other factors listed above that prompted TJAG's waiver. gg. He foresaw this dilemma from the outset as he was very uncomfortable with the idea of embarking on a Judge Advocate career without this critically important educational requirement on his record, so much so that he almost elected not to follow through with his active component accession. He articulated these concerns and made clear his preference was to attend Graduate Course in August 2008 as was originally decided and as all other similarly situated JAG MAJs were attending. Not prevailing at that juncture, he thereafter made attending Graduate Course a personal top priority. Most notably, he tried to attend as a senior MAJ after the Fort Bliss assignment enlisting the support of his Staff Judge Advocate to advocate for his attendance. Whether it was because they considered him too senior of a MAJ or they had him alternatively tracked once he was passed over for promotion, PP&TO was adamant that there was no reversing TJAG's waiver and that he would not attend Graduate Course. Nonetheless, his non-attendance of Graduate Course was obviously not for lack of effort on his part. Every colleague and supervisor from 2008 through 2011 can attest to the enormous amount of energy he put towards attending Graduate Course with future career progression, assignments, and promotion boards in mind. hh. He has have also exhausted every option for getting Graduate Course waiver adequately credited on his file. Given the circumstances of the waiver, the current unexplained gap where Graduate Course should be annotated is unsatisfactory. TJAG's Graduate Course waiver has created an untenable 'rock and a hard place' situation. On one hand, it is not permissible for PP&TO to insert any after-the-fact Graduate Course documentation into his promotion file. On the other hand, they discouraged his use of a letter to the president of the board. Further PP&TO advised him that constructive credit for the course was not an option due to the unlikelihood of obtaining ABA acquiescence to simply audit one of their accredited courses. The lack of a viable and acceptable option of accounting for the lack of Graduate Course in his promotion file unfairly left him with no viable and acceptable solutions. ii. For these reasons, and as more fully detailed in the following sections, he respectfully request the ABCMR determine that the absence of Judge Advocate General Course on his record without credit or explanation is material and his promotion file updated with either constructive credit or appropriate board instructions should meet appropriate SSBs and any other remedy that the Board finds appropriate. He further requests that board members should be advised not to draw any negative inferences from his completion of ILE via correspondence instead of at a satellite location or the full residence version. jj. Issue presented. His FY10-14 promotion files lacked official annotation that TJAG waived his Graduate Course requirement, a lack of "material information" per AR 600-8-29 paragraph 7-2a(3) that makes convening of an SSB absolutely essential. PP&TO's explanation for the waiver's absence and recommended solution were: (1) That after-the-fact documents such as a waiver explanation are not allowed to be inserted in promotion files. (2) An officer has the prerogative to include a letter to the Board President to bring such issues to the Board's attention. However, PP&TO also recommends against submitting such letters. (3) PP&TO indicated that a Graduate Course constructive credit annotation would not be a viable option since it was highly unlikely the ABA would approve such non-attendance credit for an ABA accredited LL.M program. kk. SSB Request Denial. In a 2 January 2013 email denying him request for an SSB, Promotions Branch's response seemed to be premised on three incorrect and/or contradictory assertions: (1) "Military education is not a requirement for selection of promotion." (2) "Your non-selection was not based on education and unfortunately there is no way to determine why you were not selected for promotion." (3) "The reasons for your non-selection are unknown ..." ll. While it is technically correct that the reasons for any promotion non-selections are unknown, the Promotions Branch cannot immediately precede that by declaring that his non-selection was not due to education requirements, as if they indeed knew why he was not selected. Moreover, from his interpretation of the regulations, their assertion that military education is not a requirement for selection to promotion is incorrect. But even if that were correct, education is certainly a factor that board members must consider. Finally, he doubts anyone who has sat on a Judge Advocate's LTC promotion board would agree that absence of Graduate Course and Satellite ILE would not have an impact on their evaluation and are not prejudicial discriminators on a promotion file. mm. Graduate Course as an educational requirement: The following directives identify Graduate Course as a mandatory assignment and educational requirement for Judge Advocate MAJs and ostensibly a requirement for promotion to LTC. If not a requirement for promotion, these references, at minimum, demonstrate that an absence of Graduate Course would not only be a material omission from an officer's promotion file but a noticeable and significant gap in his/her record: (1) Memorandum for Officers Selected for Promotion to Major by the FY2014 MAJ JA PSB (20 November 2014). This attached memorandum provided to every JAG CPT selected for promotion to MAJ, provides great insight into the importance the JAGC ascribes to its Graduate Course by declaring it "critical to your career progression" and providing the promotion selectees three options: a) attend the 64th Graduate Course; b) request a deferral for operational or personal reasons; or c) decline the course and separate from active duty upon completing their existing active duty service obligation (ADSO). In essence the JAG Corps has made the Graduate Course a mandatory assignment and a retention requirement. If it is a requirement for retention in the Army, it is difficult to fathom how it is not also a requirement for promotion. (2) Department of the Army (DA) Memorandum 600-2 (Policies and Procedures for Active-Duty List Officer Selection Boards). "Military education and training. The board will evaluate the appropriateness and extent of military training as outlined in DA Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management.)" It further states "A Master of Laws degree (LL.M.) is the first postgraduate law degree (after the Juris Doctor or Bachelor of Laws degree). Since 1988, all judge advocates receive an LL.M. in military law upon completion of the resident Judge Advocate General Course." (3) DA Pamphlet 600-3. Regarding the educational requirements that, in his case, TAG waived, DA Pamphlet provides: "Education. The centerpiece of junior officer professional development is attendance at the 10-month Judge Advocate General Course. Judge advocates are selected to attend the yearlong Judge Advocate General Course upon selection for promotion to MAJ or earlier if the officer's career time line allows earlier attendance ...Upon graduation from the Graduate Course, judge advocates must complete ILE either in residence at Fort Leavenworth, KS or at a satellite location. After completion of the Graduate Course and ILE, the judge advocate will be JPME I qualified." (4) Educational Summary. Promotion boards are directed to evaluate the extent of military training outlined in DA Pamphlet 600-3. For Judge Advocate MAJs, the Graduate Course and Satellite ILE are squarely what promotion board members should be looking for. He attended neither due to circumstances outside of his control. The Graduate Course, itself, is referred to as the "centerpiece of junior officer professional development" (DA Pamphlet 600-3), "critical to your career progression" (20 November 2014 memorandum listed above), and "The "flagship" course at The Judge Advocate General's Legal Center and School" (The Judge Advocate General's Legal Center and School Course Catalog, Fiscal Year 2015). In short, the Judge Advocate General Course's importance cannot be overstated. Similarly, the prejudicial effect from his lack of Graduate Course without explanation cannot be overstated. nn. Summary of prejudicial education effects: Absent any indicia of Graduate Course attendance or constructive equivalent on his Officer Record Brief (ORB), he is unfairly prejudiced before promotion selection boards. The absence of any mention of the Graduate Course does not capture the distinction between simple non-attendance and the background of his TJAG waiver and the logical credit that follows. This lack of distinction is open to a host of negative promotion board inferences as to why he failed to complete Graduate Course such as failure, refusal to attend, etc., none of which are applicable in his case. Therefore, it is imperative that promotion boards are instructed not to draw negative inferences from his lack of Graduate Course completion. Such instructions were not provided to board members who reviewed his file between FY11 and FY14. oo. Evaluations and award affected by Graduate Course waiver: The incorrect ADOR was not the only thing that affected his promotion file contents. TJAG's Graduate Course waiver, alone, precipitated evaluation, award, and assignment sequencing that would otherwise not have occurred had the waiver not occurred. When he was projected to attend the 2008 Graduate Course, he was in the middle of a 6-month mobilization to Fort Stewart, GA. In anticipation of his 57th Graduate Course attendance (that commenced prior to the end of his 6-month tour), his mobilization permanent change of station (PCS) award and Officer Evaluation report (OER) were presented in July, just 3 months into the mobilization. Since he did not end up attending Graduate Course, he completed the full 6-month mobilization tour and should have received an award and OER that reflected those 6 months of service instead of 3. Therefore, the oscillation from projecting that he would attend Graduate Course to waiving the course altogether, in itself, prejudicially affected his promotion file as it directly contributed to a shortened award period and an underdeveloped OER. pp. He requests SSBs be convened for the material error of absence of official annotation (for his FY10-FY14 boards) or any mention whatsoever (for his FY11 and FY13 boards) of TJAG's Graduate Course waiver. Once convened, he requests: (1) His SSB board file ORB reflect inconspicuous constructive credit for Graduate Course attendance in Section VI (Military Education) and section VII (Civilian Education), or in the alternative; (2) Board members should be advised to consider Graduate Course completed and to not draw any negative inferences from the absence of its documentation. (3) Board members should be advised not to draw any negative inferences from completing ILE via correspondence instead of at a satellite location or the full residence version. qq. Immaterial Error and Reasonable Diligence. This does not constitute an immaterial error or a lack of due diligence situation for which an SSB would not be authorized per paragraphs 7-3(b) or 7-11 ( c) for the following reasons: (1) Reasonable diligence - concerns articulated. While he understand the decision to waive his Graduate Course requirement was made in the interests of mission accomplishment, at the time of the waiver (July 2008) he strenuously voiced his concerns about the material gap the waiver would create on his future promotion files. Only after assurances from PP&TO that future boards would see that his Graduate Course requirement was waived did he accept the offer to enter active duty. He interpreted those assurances as meaning constructive credit or official document annotation would appropriately justify the absence of Graduate Course attendance. That this never happened is perhaps the most crucial part of the Graduate Course waiver issue because he based his decision to reenter the active component on those reassurances. (2) Reasonable diligence - requests to attend Graduate Course. At several junctures he requested to attend the Graduate Course in order to rectify this career educational void. (3) First request. His preference was to attend in August 2008 as PP&TO had originally decided. However, once TJAG waived his Graduate Course, PP&TO advised him that despite his preference, Graduate Course was not an option at that juncture. (4) Second request. In a second effort to satisfy this educational requirement, he listed Graduate Course as his number one assignment preference to follow his 2008-2011 assignment as BCT JA at Fort Bliss and continued to press the issue after the initial assignment slate came out. However, apparently due to his FY10 non-select and seniority as a MAJ, PP&TO would not entertain the notion of sending him to Graduate Course. This career management decision illustrates another prejudicial effect of the incorrect ADOR. (5) Reasonable Diligence-Alternate courses of annotation. As promotion boards approached, he reminded PP&TO about the Graduate Course waiver and was advised Promotions Branch does not allow such 'after the fact' documents to be inserted into a board file. He was told the only such item that may be added into a promotion file is a letter from me to the President of the Board. However, PP&TO also advised against the wisdom of submitting such a letter. He heeded that recommendation and did not submit a letter for the FY11 and FY13 boards but have since concluded that: (a) It was an ill-advised recommendation because his file went before promotion boards without addressing missing educational requirements. (b) For a waiver of such a critical a career requirement, he, as the rated officer, should not have to shoulder the burden of explaining the matter via a letter to the board president. Any such identification and explanation of the Graduate Course waiver should have been officially added to his file at the time of the waiver, in 2008. A TJAG waiver of the "centerpiece" of the JAG Corps' junior officer educational development is too critical of a career event to be addressed solely with a letter begging indulgence of the President of the Board. (c) To be clear, he did submit letters to the presidents of the FY10, FY12, and FY14 promotion selection boards and included the PP&TO memorandum with his FY12 letter. However, as he has stated above, relying on the letter to the president option, particularly when such option carries the perils warned by PP&TO, is not an acceptable or viable option for this situation. rr. Issue 3, omission of PCS award before FY11 board: Meritorious Service Medal (MSM) (9 August 2011). His Fort Bliss PCS award was approved on 9 August 2011 but was not added to his file before the FY11 board convened on 10 August 2011, the following day. In fact, due to administrative error at 1st Armored Division, the award was lost and not rediscovered until 5 months later. Since the loss of the award was not his fault, as part of his SSB requests regarding Graduate Course, he asked to ensure the award be included in his FY11 file. ss. SSB denial: In denying him SSB request, Promotions Branch stated, "The MSM Award was issued on 9 August 2011, (1 day prior the board's convene date of 10 August), and uploaded into iPERMS [Interactive Personnel Records Management System] on 9 January 2012; therefore, it was not eligible for board consideration." That statement is consistent with the fact that for 5 months, 1st Armored Division lost his PCS award. But to use that as the rationale for not including the award in his FY11 file improperly penalizes him for that administrative error. tt. He understands AR 600-8-29 does not authorize convening of SSBs for omissions of awards lower in precedence than the Silver Star. However, because his Fort Bliss PCS award (MSM) was approved prior to the convening of the FY11 board, he request it be included in his FY11 promotion file if it is determined my situation warrants SSBs. 3. The applicant provides: * AHRC -PDV-PAO Form 100 (Computation of Date of Rank) * FY13 and FY14 JAGC LTC Promotion Selection Board (PSB) Results Analyses * his SSB request, dated 2 May 2012 * HRC's denial to his SSB request, dated 7 June 2012 * his rebuttal to his SSB request denial * HRC's response to his rebuttal to the SSB denial, dated 2 January 2013 * His SSBs request, dated 9 June 2014 * HRC's denial of his 9 June 2014 SSB request * HRC Orders Number 280-001, dated 7 October 2013 * Historical Promotion Rates JAGC * DA Form 1059 (Service School Academic Evaluation Report) * memorandum from The Office of the Judge Advocate General, PP&TO dated 20 November 2014, pertaining to attendance at the 64th Judge Advocate Officer Graduate Course * Judge Advocate Graduate Course waiver memorandum, dated 20 July 2012 * MSM Certificate * ORB CONSIDERATION OF EVIDENCE: 1. After having served in the Regular Army and through several active and inactive U.S. Army Reserve (USAR) periods of service, the applicant was ordered to active duty on 24 October 2008, as a Regular Army commissioned officer in the rank of MAJ/O-4, in the JAG Corps. He entered active duty on 30 October 2008. 2. HRC Orders Number 064-002, issued on 5 March 2009, established his ADOR as 29 November 2005. 3. Although not documented in his Official Military Personnel File (OMPF), an email from HRC provided by the applicant shows he was considered but not selected for promotion by the FY 2010 LTC JAG PSB. The same email shows he was considered but not elected for promotion by the FY11 LTC JAG PSB. 4. By letter dated 2 May 2012, the applicant requested to HRC consideration by an SSB under the FY11 criteria. By email dated 7 June 2012, HRC denied his request and stated: a. "The reasons for your non-selection are unknown because statutory requirements in Title 10, USC, Section 618, prevent disclosure of board proceedings to anyone not a member of the board." b. "Your file, when considered by the promotion board, included your pertinent documents that were eligible for viewing by the board. Your completion of ILE-CC was viewed by the board. The resident ILE and Graduate Course waivers were not noted in your board file. The education is not a requirement for selection of promotion; therefore, your non-selection was not based on education." c. "Any waivers granted to you should have been provided for inclusion in your file prior to the board. All officers in the zone of consideration may, if desired, submit correspondence to the President of the board to address issues deemed important in his consideration of promotion. He can also submit correspondence from 3rd party personnel as long as the correspondence is submitted with the correspondence to the board by the officer." d. "An ORB is not a source document. Information on the ORB is information that should be posted in your OMPF, and is used for informational purposes only. Documents for the promotion board had a submission date of no later than 29 July 2011." e. "The MSM award was issued on 9 August 2011, (1 day prior the board's convene date of 10 August), and uploaded into iPERMS on 9 January 2012; therefore, it was not eligible for board consideration. Also, an award below the Silver Star is not a basis for SSB consideration." 5. By letter dated 2 November 2012, the applicant requested reconsideration of HRC's denial of his SSB request. By email dated 2 January 2013, HRC denied his request for reconsideration and stated the following: a. "A second review of your board file along with the information provided does not equate/constitute a material error for SSB reconsideration, and unfortunately, your request is denied." b. "The military education is not a requirement for selection of promotion. All officers were considered as educationally qualified for the FY11 LTC JAG PSB. Your DA Form 1059 completion of ILE-CC was viewed by the board." c. "Your non-selection was not based on education and unfortunately there is no way to determine why you were not selected for promotion. The reasons for your non-selection are unknown, because the statutory requirements in Title 10, USC, Section 618 prevent disclosure of board proceedings to anyone that is not a member of the board." d. "The decision to recommend an officer for promotion is based on the selection board's collective judgment as to the relative merit of an officer's overall record when compared to the records of other officers being considered. The decision not to select you for promotion at that time does not mean you were not a quality officer; rather it is indicative of the very competitive nature of the promotion system." e. "As noted in the MILPER Message (#11-150, #4, paragraph A), all officers were allowed to include their concerns deemed important to the promotion board members by submitting a letter to the President of the board. We have also affirmed that on 7 August 2011 you did review and certify that the information in your 'My Board File (MBF)' is correct and complete to the best of your knowledge as mandated within your MILPER Message (#11-150, #6, paragraph H prior to the convene date of the regularly scheduled promotion selection board which convened on 10 August 2011. Failure to do so does not constitute material unfairness or a material error." 6. HRC Orders Number 280-001, issued on 7 October 2013, amended HRC Orders Number 064-002, issued on 5 March 2009, by changing his ADOR to 6 May 2006. 7. By letter dated 9 June 2014, the applicant requested to HRC consideration for promotion by SSBs under the FY10, FY11, FY12, and FY13 criteria. In an email dated 20 June 2014, HRC denied his request and stated the following: a. "A review of your SSB request provided, your DOR adjustment does not equate/constitute a material error for SSB reconsideration, and unfortunately, your request is denied." b. Based on your DOR Adjustment: (1) "FY10: You should have been seen as a BZ candidate, which is a free look and does not count against you if not selected. We do not run SSB's for Below Zone candidates." (2) "FY11: You were boarded as an AZ candidate, and not selected for promotion. You should have been boarded as an IZ [in the zone] candidate: however, the board members vote the files with the PZ and the AZ mixed in together. There are no separate select objectives for PZ vs. AZ candidates. The decision to recommend an officer for promotion is based on the selection board's collective judgment as to the relative merit of an officer's overall record when compared to the records of other officers being considered." (3) "FY12: You were board correctly as an AZ candidate and not selected for promotion. You should have been seen with the FY12 MAJ JAG SELCON [selective continuation] Board, of which you were deleted from. We have already completed a SELCON SSB on you for this and the results are currently at the DMPM [Director of Military Personnel Management] for final approval." (4) "FY13: You were board correctly as an AZ candidate and not selected for promotion." (5) "FY14: You are currently scheduled to be boarded for this board which convenes on 11 August 2014." c. "Also, the military education is not a requirement for selection of promotion. All officers were considered as educationally qualified for the LTC JAG Promotion Selection Boards. Your non-selection on these boards was not based on education, and unfortunately, there is no way to determine why you were not selected for promotion. The reasons for your non-selection are unknown, because the statutory requirements in Title 10, USC, prevent disclosure of board proceedings to anyone that is not a member of the board. The decision not to select you for promotion at that time does not mean you were not a quality officer; rather it is indicative of the very competitive nature of the promotion system." d. "You may pursue your case by contacting The Army Board for Correction of Military Records." 8. During the processing of this case, an advisory opinion was obtained from HRC, Officer Promotions Management. It states: a. Their office conducted a review of the applicant's DOR, his non-selection by the FY2011, LTC JAG's PSB; and his reconsideration for promotion by the aforementioned PSB. b. A review of his Army Military Human Resources Record (AMHRR) determined that the MAJ DOR was awarded based on his acceptance by Army Reserve into JAG rather than his appointment into the active duty list. His DOR was re-calculated in accordance with AR 600-8-29, paragraph 1-44e(3). AHRC-PDVPAD, order 064-002, dated 05 March, 2009, was amended by AHRC-PDV-PAO, order 280-001, dated 07 October, 2013, which awarded him an adjusted DOR of 6 May 2006. c. Due to the MAJ DOR adjustment, and in accordance with Military Personnel Message 10-035, dated 27 January, 2010, he should have not been considered for promotion in the PZ; therefore his non-selection by the FY11 (sic) board was removed from his record. d. Regarding his request for reconsideration by an SSB for FY11 through FY14 boards; per AR 600-8-29, para 7-3c, cases not considered by SSB include (but not limited to) letters of appreciation, commendation, or other commendatory data for awards below the Silver Star that may be missing from the officer's AMHRR. It would have been unrealistic to believe that his MSM approved on 9 August 2011 would have been available for viewing by the FY11 board that convened on 10 August 2011. His MSM was added to his AMHRR on 9 January 2012, approximately 153 days after the FY11 board convened. e. Additionally, they are uncertain of the request, to wit "absence of Judge Advocate Graduate Course." There are numerous documents within his file that reference branch, specialty, and courses completed as a JAG officer that were available for review during the PSB. He was considered as fully eligible during promotion consideration by the FY11 through FY14 boards; however, he was not selected. Furthermore, the exact reason(s) for his non-selection for promotion 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. Therefore, any presumption, suspicion, comments, conjuncture, or hearsay for non-selection are purely speculative. It can only be concluded that the promotion board determined that his overall record when compared with the records of his contemporaries, did not reflect as high a potential as those selected for promotion. 9. The advisory opinion was provided to the applicant to afford him the opportunity to respond to its contents. He responded and stated: a. HRC's advisory opinion does not add much value in addressing the merits of his ABCMR petition because of the following reasons: (1) HRC is the agency from which he unsuccessfully sought promotion reconsideration relief via SSBs, so it is not surprising that their advisory opinion is consistent with their denial of his SSB requests. (2) HRC, as an agency, does not have the best perspective to address the issues he presents to the Board. Therefore, their advisory opinion does not focus on the critical issues he presents. (3) HRC's opinion focuses on the process of convening promotion boards. This is their area of expertise and for which their comments are technically correct. However, their opinion does not address the issues in his petition, which focus on the substantive development of a promotion file before promotion boards meet. (4) HRC's opinion spends an inordinate amount of time discussing the least critical issue he presents to the board, i.e. the missing MSM from his FY11 promotion file. b. HRC's opinion takes the focus away from the central questions in his ABCMR petition. Those central questions are: (1) Whether the incorrect ADOR in his AMHRR and in his FY11-FY13 promotion files, alone, warrants promotion reconsideration before SSBs. The "Computation of Date of Rank" and "Promotion Consideration" paperwork generated by the JAGC's PP&TO (tab 1 in original ABCMR petition) refers to the incorrect ADOR as a "major material error" that "warrants an SSB for the FY11, LTC, JAGC, PSB in the PZ." (please note the arguments in his ABCMR petition and below as to why the incorrect ADOR also warrants SSBs for FY11-FY14 boards, not just FY11). (2) Whether the incorrect ADOR in his AMHRR and on his promotion files, which a) prematurely and incorrectly placed his promotion file in the FY10 PZ of consideration for promotion to LTC, b) placed his promotion file in the incorrect above the zones of consideration for the FY11-FY13 promotion boards, warrants promotion reconsideration before SSBs. (3) Whether the incorrect ADOR in his AMHRR affected the overall content of his FY11-FY14 promotion files in terms of the sequencing and nature of his evaluations, assignments, and military education, such that his promotion files that entered HRC's promotion board process (referenced above) would have been so significantly different had the ADOR been correct; that promotion reconsideration is not only warranted, but absolutely essential. c. HRC's opinion does not address how the incorrect ADOR or corresponding effects to his promotion files, addressed above, would be viewed in the eyes of JAGC career managers, or, equally importantly, in the eyes of JAGC LTC promotion board members charged with comparing his promotion file with all others. d. HRC's advisory opinion reaffirms what we already know. That is, when he entered active component in 2008, an analyst's misconstruing of the instructions on his appointment letter resulted in an improper determination of his ADOR (derived from the language in the attached "Computation of Date of Rank" paperwork). That analyst's error was not discovered until a September 2013 review of his official record by PP&TO. It was corrected via order 280-001, dated 7 October 2013. e. HRC's advisory opinion correctly points out that because of the ADOR correction, his PZ for promotion shifted from FY10 to FY11. Therefore, he should not have been considered PZ in FY10 (note: the advisory opinion incorrectly identifies FY11 as the board he should not have been considered for. He is assuming this is a typographical error). Where HRC's opinion falls short is that an after-the-fact shifting of an entire zone of consideration has impacts on an officer's promotion file that cannot be overstated. HRC's opinion does not address these impacts. f. Missing MSM from FY11 promotion file. The HRC advisory opinion spends a disproportionate amount of time discussing his ABCMR petition's least pressing issue. Due to clerical error out of his control, the MSM that was approved before the FY11 board convened was not included in his promotion file. It was such an egregious administrative error that it took, as HRC's advisory opinion pointed out, 153 days of his searching for the award to finally discover 1st Armored Division awards section had simply misplaced it and failed to send it to HRC once approved. Bottom-line, while this is the least critical issue in his petition, the administrative error outside of his control should not be held against him and the award should have appropriately been included in his FY11 promotion file. g. HRC's advisory opinion states "we are uncertain of the request to wit "absence of Judge Advocate Graduate Course," there are numerous documents within his file that reference branch, specialty and courses completed as a JAG officer that were available for review during the promotion selection board." This excerpt illustrates how HRC simply does not have the perspective to address one of the most significant byproducts of the most significant issue he presents before the ABCMR. That is, the incorrect ADOR significantly contributed to The Judge Advocate General's decision to waive his Judge Advocate Graduate Course requirement. Thus, the appropriate question to ask is, 'if his ADOR had been correct, yielding 16 more months of career development time before his appropriate PZ consideration in FY11, would he have likely attended the Judge Advocate Graduate Course?' He cannot imagine how an advisory opinion from an agency with appropriate perspective on that matter would conclude anything other than "yes." h. The second Graduate Course issue that the HRC opinion is unable to address is the consequence of that course's absence from my promotion file. For added emphasis, he provide the attached references that he included in his original petition (tab 12 in original ABCMR petition) which demonstrate how critical the Graduate Course is to a JAG officer's career development. Given the language of the 20 November 2014 PP&TO Chief's memorandum, one can easily infer how glaring of an omission it would be if a JAG MAJ's promotion file does not include the Judge Advocate Graduate Course. i. Further, it is not simply the Judge Advocate Graduate Course that suffered from his prematurely senior ADOR. His ability to attend a satellite ILE course was also curtailed by his having 16 less months than he should have had to attend career education requirements prior to his PZ consideration. j. The problem with these educational waivers is that they do not allow for an obvious ORB or AMHRR notation of course completion, and so there is no way to officially annotate in a promotion file the reasons why they were waived. This is particularly problematic now that one of the key reasons why they were waived (time before the LTC PZ consideration) has been retroactively removed due to the corrected ADOR. However, with that accomplished, he cannot retroactively go back to attend Judge Advocate Graduate Course or Satellite ILE at the time in his career that he should have attended those courses. To avoid negative inferences that very likely will be drawn by promotion board members, SSB members must be provided some type of board instructions advising them to ignore the absence of those two educational requirements. k. HRC's opinion notes that "the exact reason(s) for his non-selection are unknown" because of statutory requirements and that "any presumption, suspicion, comments, conjecture, or hearsay for non-selection is purely speculative." HRC's opinion is technically correct about what we do not know. However, what we do know is that his promotion file reflected an incorrect ADOR and the file, itself, would have been significantly different had the ADOR been correct from the beginning. This has nothing to do with speculation about why he was not selected. It has everything to do with the fact that his promotion files reviewed by the boards were inaccurate and would have also contained materially different information had his ADOR been accurate. l. To better illustrate why his promotion file is the type contemplated for review by SSBs, it is probably more instructive to look at which situations AR 600-8-29 considers to be among "(c)ases not considered" for SSBs (underlining added). Cases not considered by SSBs are those where "[a]n administrative error is immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or Official Military Personnel File." (AR 600-8-29, paragraph 7-3(b)). His situation falls squarely outside of this definition of "(c)ases not considered" for three reasons: (1) The administrative error of his incorrect ADOR is very material because it shifted his zones of consideration, and promotion board members do take into consideration ADORs and promotion zones. This is illustrated by the fact that officers in the PZ have a higher selection rate than AZ and officers in their first AZ consideration have a higher selection rate than those in their second AZ consideration, etc. (2) The administrative error of his incorrect ADOR is even more material because it negatively impacted his promotion file by altering the sequencing and nature of his evaluations and assignments and prevented him from attending mandatory military education requirements such as the Judge Advocate Graduate Course. (3) Exercising reasonable diligence. He could not have discovered this administrative error as his ADOR was only determined by PP&TO to be incorrect after the FY10-FY13 promotion boards had already occurred. m. In addition to the aforementioned effects, military assignment and officer evaluation decisions are routinely made with the ADOR in mind. In fact, an officer's entire career progression uses the ADOR and corresponding promotion zones of consideration promotion as starting points for determining when that officer should start and leave assignments and when evaluations are generated. n. With that in mind, he refers the Board to the attached letters from Colonel (COL) (ret) G and COL S in support of his efforts to adjust my Officer Evaluation Reports (OERs) that were generated in reliance of the incorrect ADOR. While it is yet to be determined if he can successfully make these OER changes, this reveals yet another way his promotion file would have been different had his ADOR been correct. Both his senior rater and rater acknowledge that 1) he has been prejudiced by the ADOR error, and 2) that they would have sequenced his evaluations differently had the ADOR been correct. o. While his assessment is that the HRC advisory opinion does not provide much value addressing the concerns he highlighted in his ABCMR petition, he asks the Board to focus on the real and tangible changes in his promotion files that were a direct result of the incorrect ADOR. The most noteworthy of those changes include: * an incorrect ADOR on my FY11-FY13 promotion files * a promotion file that was in the incorrect zones of consideration for the FY11-FY13 promotion boards, where board members do notice ADORs and do take zones of consideration into account * missing military educational requirements in FY11-FY14 promotion files as a direct result of the incorrect ADOR * underdeveloped and misaligned evaluations and assignments in FY11-FY14 promotion files as a result of the incorrect ADOR. 10. The applicant provided: a. AHRC -PDV-PAO Form 100 which addresses the applicant's erroneous ADOR. The form also includes the following statement: "Due to this major material error, the officer was erroneously boarded for LTC/JAG Corps, primary zone during the FY2010 PSB when he should have been boarded in the PZ in FY2011." b. FY13 and FY14 JAGC LTC PSB Results Analyses which provide statistical data and "key takeaways" pertaining to the board's selection process. c. JAGC Historical Promotion Rates which also provides statistical date on the personnel selected for promotion. d. A DA Form 1059 that show he successfully completed the U.S. Army Command and General Staff College, ILE (CC) on 12 April 2010. e. Memorandum from The Office of the Judge Advocate General, PP&TO dated 20 November 2014, pertaining to attendance at the 64th Judge Advocate Officer Graduate Course. f. Judge Advocate Graduate Course waiver memorandum, dated 20 July 2012, indicating that, upon the applicant's accession onto active duty, The Office of the Judge Advocate General waived the requirement that he attend the Graduate Course based on his prior successful completion of the course while serving in the USAR in 2008. g. MSM Certificate that shows he was awarded the MSM on 9 August 2011 for service during the period 1 December 2008 to 27 July 2011. 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. AR 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 ADOR and time in grade. 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 MAJ 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 an 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 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. e. Failure to be selected for promotion from below the zone of consideration will neither count as a non-selection for promotion nor reflect unfavorably on an officer. DISCUSSION: 1. The applicant’s request for promotion consideration by SSBs was carefully considered. 2. The applicant contends his non-selection to MAJ was a direct result of his erroneous ADOR, incorrect zone of consideration for the FY10 and FY11 promotion boards, and issues with his PME. 3. The record shows he was ordered to active duty as a Regular Army commissioned officer in the rank of MAJ, JAGC, and he entered active duty on 30 October 2008. His ADOR was initially established as 29 November 2005. Based on the established ADOR, he was eligible for and considered by the FY10 LTC JAGC PSB in the PZ; however, he would have been considered BZ had his DOR been correct. He was then considered for promotion AZ by the FY11 board (he should have been considered PZ for the FY11 board.) 4. His ADOR was corrected in October 2013 to reflect 6 May 2006. 5. In reference to the applicant's zone of consideration for the FY11 board, as stated by HRC in their SSB denial on 20 June 2014, the board members considered the promotion files with the PZ and AZ in one group without separate selection objectives and he was considered fully qualified for promotion; however, he was not selected for promotion. 6. In reference to his military education, the evidence shows that all promotion candidates were considered "educational qualified" for the FY11 through FY14 promotion boards. Therefore, his contention that military education was a factor in his non-selection is purely speculative. 7. 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. 8. 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 duties at the next higher grade, who are not selected because of selection capability restrictions. 9. 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. 10. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005474 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005474 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2