IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150006646 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration for promotion to captain (CPT) by a special selection board (SSB). 2. The applicant states: a. He was not selected for promotion by the Fiscal Year 2014 (FY14) CPT Army Competitive Category (ACC) Promotion Selection Board (PSB). Following publishing of the FY14 CPT PSB results and notification that he was not selected for promotion he submitted a request to the U.S. Army Human Resources Command (HRC) for reconsideration for promotion by an SSB. His request was denied. Both the denial of reconsideration for promotion by an SSB and his non-selection for promotion by the FY14 CPT PSB are injustices that he wants corrected. He wants to be promoted to CPT following the same criteria as if he had been selected for promotion by the original FY14 CPT PSB or if he had been granted reconsideration for promotion by an SSB and selected for promotion by that SSB. He wants to receive the same date of rank, effective date, and position on the promotion list he would have received if he had been recommended for promotion by the original board. b. He deserves to be promoted to CPT. He has demonstrated potential to perform and excel as a CPT through his successful execution of duties as a platoon leader (PL), company executive officer (XO), and battalion assistant operations officer. He believes he was not selected for promotion due to material error involving his board file for the FY14 CPT PSB. The denial of an SSB is also an error or injustice. He believes a factor in non-selection was his lack of a Department of the Army (DA) photograph. He believed that being deployed to a combat zone where photographic facilities were not available would exempt him from the photograph requirement and the absence of his photograph would be excused by the promotion board. Now, he knows he was at fault for not having a photograph. He should have had a photograph taken within 90 days of returning from his first deployment and ensured he had a photograph prior to departing for his second deployment. He did not set himself up for success with the board and he accepts full responsibility for that oversight. However, when he certified his board file he attempted to correspond with the board and bring special attention to a matter he considered important during consideration of his file (lack of a photograph). He indicated he was aware that a photograph was absent from his file but he was unable to have it taken due to being deployed to Afghanistan. He indicated he would have one taken following redeployment. His comments to the board were encouraged by his S-1 officer in charge (OIC), Second Lieutenant (2LT) NRW and proofread/verified by his Company Commander, CPT JCB. c. Another factor for non-selection was his board file contained an outdated Officer Record Brief (ORB) when it was reviewed. He began revising his ORB in March 2014, working with his commander and S-1 OIC. All sections of his ORB were updated and were 100 percent accurate; however, when he certified the "My board file (MBF)," the ORB in his MBF was not the updated version. The ORB contained a deficiency in Section IX-Assignment Information. It depicted that he remained a PL in A Company, 2nd Battalion, 12th Infantry (A CO, 2-12 IN) after returning from deployment for 13 months; however, he became an Executive Officer (XO) in C CO, 2-12 IN, on 29 January while deployed. This was inaccurate so he indicated that after his first deployment he remained a PL in A CO for 8 months until 10 August 2013, then he became an XO in C CO. He held the XO position in C CO for 5 months until he deployed to Afghanistan on 29 January 2014 and he held that position after the date of his board. When he certified his MBF he explained the deficiency in his comments to the board, stating that this deficiency had been corrected on his ORB, but the ORB in his file still reflected the incorrect information. As with his comments to the board regarding his DA photograph, these comments were encouraged by his S-1 OIC and commander. d. His SSB request was denied because his "ORB does not equate/constitute a material error for SSB reconsideration." Army Regulation (AR) 600-8-29 (Officer Promotions), paragraph 7-3(b), states that cases will not be considered for an SSB when "an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error on the ORB or in the official military personnel file (OMPF)." He holds that errors in his ORB were not immaterial because he did exercise reasonable diligence in discovering and correcting the errors, but his MBF ORB did not update to the corrected version prior to certification, constituting a material error. e. A third factor contributing to non-selection for promotion was the board file activity/certification seen by the board. The file seen by the board shows he reviewed his MBF only once (2 April 2014) and did not certify his file. This does not adequately reflect his MBF activity. He reviewed his file no less than ten times from March until the day before his file closed (2 April 2014). Additionally, he certified his MBF on 2 April 2014 prior to closing at 2400 hours on 3 April 2014 in accordance with Military Personnel (MILPER) Message # 14-015. When certifying his file he selected the third option, that shows he had reviewed his MBF but it required corrections. He selected this option so he could communicate his awareness of the issues related to his file as recommended by his S-1 OIC. After certifying his file he received an email confirming the entry in his file. His verification was ensured by his company commander and witnessed by his S-1. The MBF activity was not addressed in his SSB request denial, so he asked the reconsiderations point of contact why the board file activity did not constitute a material error. He was told: "The board members do not know if an officer has reviewed or certified his board file. Although it is encouraged from the MILPER Message, it is not mandatory, and again, the board members have no idea about the MBF activity when they review and vote on the files." f. However, MILPER Message # 14-015, paragraph 2-E, links to a DA Secretariat briefing on the board process in which it explains the three board file reviewing selection dials and states: "If you do not review your documents the default will show the DA Secretariat that you did not review your file. Board members will be able to see whether or not you reviewed your file. Reviewing your file is an investment for your success in your military career (in video or in video script, paragraph 9)." He believes incorrect board file activity constitutes material error and contributed to his non-selection. Although these three factors/errors that contributed to his non-selection seem minor individually, together they paint a picture that he does not take his future in the Army or the board process seriously, and it resulted in non-selection for promotion. 3. The applicant provides: * Request (to HRC) for an SSB, dated 26 July 2014 * Self-authored Memorandum for Record (MFR), dated 26 July 2014 * Memorandum from his former company commander, CPT JCB, dated 26 July 2014 * Statement from 2LT NRW, 2-12 IN S-1 OIC, dated 26 July 2014 * Confirmation email of MBF review, dated 2 April 2014 * ORB, dated 26 July 2014, from 2LT NRW * E-notification of SSN denial, dated 11 August 2014 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Regular Army infantry 2LT and executed an oath of office on 21 May 2011. He completed the Infantry Basic Officer Leader Course from August to December 2011. 2. He also completed the Airborne and Ranger Courses in 2012 and he was assigned to Company A, 2nd Battalion, 12th Infantry, Fort Carson, CO, in July 2012. He was promoted to first lieutenant (1LT) on 21 November 2012. 3. On 21 January 2014, MILPER Message 14-015 announced that the FY14 ACC PSB would convene on 8 April 2014 to consider eligible 1LTs on the active duty list for promotion to CPT and recess on or about 29 April 2014. 4. On 2 April 2014, in preparation for the upcoming FY14 ACC PSB, he reviewed the information in his MBF and certified he would take action and submit changes to his file. 5. He was considered for promotion to CPT by the FY14 ACC PSB that convened on 8 April 2014 but he was not selected for promotion. 6. On 26 July 2014, he requested reconsideration for promotion by an SSB. He acknowledged he understood what constitutes an SSB and that he was afforded the opportunity to submit documents for inclusion in his OMPF and corresponded with the PSB regarding administrative errors. He submitted statements from his company commander and S-1 OIC asserting that: * the applicant reviewed his awards, evaluations, and ORB in his MBF prior to 3 April 2014 * he conducted several reviews of his ORB to ensure all entries were correct and he acknowledged the lack of a DA photograph * he submitted a statement to the President of the PSB and he (the company commander) helped him proofread it * he was unable to take a DA photograph due to his deployment to Afghanistan 7. On 11 August 2014, HRC denied his request for an SSB. An official at the Officer Promotions Division stated that there was no material error upon which to base an SSB. The MILPER Message allowed officers to correspond with the promotion board. The ORB is a summary document of information generally available elsewhere in the Soldier's record and minor errors identified, such as the ORB, are not grounds for reconsideration. There is no way to determine why he was not selected for promotion. 8. He corresponded again with HRC on 12 August 2014 and inquired if his MBF activity discrepancy would constitute a material error. HRC responded on the same date indicating that promotion board members do not know if an officer viewed or certified their file. Although it is encouraged in the MILPER Message, it is not mandatory. 9. The applicant was considered by the FY15 PSB and was selected for promotion. He was promoted to CPT on 6 October 2015. 10. An advisory opinion was received on 15 July 2015 from HRC Officer Promotions in the processing of this case. An advisory official stated that based on a review of the records and the information provided, HRC finds the applicant's request for reconsideration for promotion to CPT under the FY14 criteria does not have merit. a. Subsequent to the convene date(s) of any promotion board(s), each candidate such as the applicant had an opportunity to correspond directly with the President of the board and its members, to address any issues that he felt were not readily visible by viewing his respective file, including those which he or other candidates believed were important during consideration for promotion. Failure to do so does not constitute material unfairness or a material error. b. Cases not considered by the SSB per AR 600-8-20, paragraph 7-3, include (but are not limited to) missing DA photographs, errors in the ORB or OMPF; this, along with Title 10, section 628, of the United States Code and Department of Defense Instruction 320.11, specifies that an individual will not be reconsidered if, by maintaining reasonably careful records and in exercising reasonable diligence, the individual could have discovered and corrected the error in the ORB or AMHRR. By his own admission, the applicant acknowledged his awareness of and noncompliance with the photo requirement. c. Furthermore, the exact reason(s) for his non-selection(s) for promotion are unknown because statutory requirements set forth in Title 10, United States 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. 11. The applicant was provided a copy of this advisory opinion to allow him an opportunity to submit comments and/or a rebuttal. He did not respond. 12. AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides for SSBs. a. Paragraph 7-1 states SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. b. Paragraph 7-2 states SSBs may be convened under the law to consider or reconsider commissioned or warrant officers for promotion when DA discovers (1) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required); (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). c. 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 officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. The ORB is a summary document of information generally available elsewhere in the officer’s record. It is the officer’s responsibility to review his/her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them; or when the promotion board did not see an official photograph; or when the promotion 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was considered for promotion to CPT by the FY14 ACC PSB that convened on 8 April 2014 but he was not selected for promotion. He requested reconsideration for promotion via an SSB, but HRC denied his request because he did not prove a material error. Administrative errors on the ORB and/or the absence of a DA photograph are not grounds for an SSB. 2. An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. 3. The applicant did not provide evidence of a material error to HRC and he has not provided evidence of a material error to this Board. He does not meet the criteria for consideration for promotion by an SSB. 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) AR20150006646 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006646 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1