IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150010691 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: 9 June 2016 DOCKET NUMBER: AR20150010691 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: 9 June 2016 DOCKET NUMBER: AR20150010691 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his military service records as specified by his counsel. 2. The applicant states, in effect, he defers to his counsel. 3. The applicant provides documents as identified by his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's military service records to show his promotion to lieutenant colonel (LTC)/pay grade O-5 back-dated to his original promotion eligibility date; all active duty and retired back pay and allowances associated with the promotion; and removal of all adverse comments from two particular DA Forms 67-8 (Officer Evaluation Reports (OERs)) – * an OER covering the period 1 November 1979 through 9 June 1980 (hereinafter referred to as contested OER-1) * an OER covering the period 27 August 1984 through 20 June 1985 (hereinafter referred to as contested OER-2) 2. Counsel states (in 56-page legal brief) the applicant's records show he was an exceptional officer who dedicated himself to the Army, its mission, and Soldiers. He was the target of unjust attacks against his character and performance on two separate occasions. As a result, he was twice non-selected and unjustly denied promotion to LTC. a. He states the Army Board for Correction of Military Records (ABCMR) has a responsibility to determine the true nature of the alleged injustices and take steps to grant the applicant fitting relief. Additionally, the ABCMR should excuse the applicant's failure to timely file within the 3-year statute of limitations in the interest of justice. b. The applicant had a significant and distinguished 20-year career as an Army officer and he received numerous awards, including the Legion of Merit, Bronze Star Medal, Defense Meritorious Service Medal, Meritorious Service Medal, Army Commendation Medal, Joint Service Achievement Medal, Army Achievement Medal, National Defense Service Medal with 1 bronze service star, Vietnam Service Medal, Army Service Ribbon, two Overseas Service Ribbons, Republic of Vietnam Campaign Medal, Parachutist Badge, and Air Assault Badge (Exhibits 1, 3–9, 75, and 124). He contributed another 8 years to the U.S. Army as a Department of the Army Civilian (DAC) and contractor. c. More than 50 senior military officers, noncommissioned officers (NCOs), and Department of Defense (DoD) civilians have written letters to the ABCMR in his behalf (Exhibits 32–36, 48–51, 54–57, 64, 66–73, 77, 80–114); a summarized list of these letter is at Exhibit 115. Counsel also provides excerpts from the applicant's last 12 OERs spanning the period from 12 July 1980 to 29 February 1992 (Exhibits 39, 41–42, 45, 52–53, and 58–63) that offer evidence of the applicant's performance and potential. d. Counsel states the applicant earned his degree in Pre-Law/English from Seattle University (Cum Laude) while serving in the Reserve Officers' Training Corps (Exhibits 1 and 2). He entered the Army on 7 February 1972; completed the Signal Officer Basic Course (Exhibit 10); served in Vietnam under combat conditions (Exhibits 5 and 11); and also served in Germany and South Korea. (1) He provides a summary of the applicant's early military career, which is documented in his OERs (Exhibits 11–16) and two letters of appreciation (Exhibits 17–18); as Distinguished Graduate of the Defense Procurement Management Course at the Army Logistics Management College (Exhibits 19 and 20); and as Distinguished Graduate of the Signal Officer Advanced Course (Exhibits 21 and 22). (2) He provides a summary of the applicant's service in Germany and superior performance, which is documented in his OERs (Exhibits 23, 28–30) and four letters of commendation (Exhibits 24–27); the applicant's own assessment of his leadership, problem-solving, and anti-drug efforts as Commander, Headquarters and Headquarters Company (HHC), 3rd Battalion, 35th Tank Battalion (Exhibit 31); and expressions of surprise by officers and NCOs that the applicant was not selected for promotion to LTC (Exhibits 32–36). (3) Counsel addresses circumstances pertaining to contested OER-1. He states LTC James M. S___ (the rater) assumed command of 3rd Battalion, 35th Armor. LTC S___ dismissed the applicant's concerns that the battalion commander's driver was using drugs. An altercation between the battalion commander's driver and the company commander's (the applicant's) driver resulted in court-martial proceedings against the company commander's driver. Against strong admonitions by the battalion commander, the applicant testified on behalf of his driver, who was subsequently convicted and sentenced to confinement and a dishonorable discharge. Despite the applicant's strong performance and anti-drug efforts as company commander, which he documented in his OER Support Form (Exhibit 37), the rater commented on the applicant's "unsound" judgment and grossly understated his accomplishments. In addition, the senior rater did not recommend the applicant for further command (Exhibit 38). The applicant indicated, "I had very little exposure with COL [Colonel] Larry D. B___ [senior rater]." Counsel adds the rater failed to mention several of the applicant's accomplishments he outlined in his OER Support Form. e. Counsel provides a summary of the applicant's military career during the period July 1980 to August 1983 when he transitioned to the United States. (1) He served as Assistant Professor of Military Science at Creighton University for 3 years. His rater (an infantry officer) and two senior raters (both combat arms officers) offered positive comments on his superior performance (Exhibits 39–42). In addition, the applicant was highly recommended for promotion to LTC, selection to attend Command and General Staff College, and battalion command. (2) The applicant completed Air Assault School and was awarded the Air Assault Badge in August 1982 (Exhibit 43). He was promoted to major (MAJ)/ pay grade O-4 on 1 August 1983 (Exhibit 44). f. He served as the Material Management Officer for the Directorate of Logistics, 1st Signal Brigade in Korea, from 27 August 1983 to 20 June 1984, where he built a reputation as a hard-working young officer. Both his rater (LTC Charles W. A___) and senior rater recommended him for promotion to LTC (Exhibit 45). He completed Command and General Staff College via correspondence during the period June 1984 to June 1985 (Exhibit 46). g. Counsel addresses circumstances pertaining to contested OER-2 (Exhibit 47). He states there is a striking difference between the previous OER the rater (LTC A____) submitted and the contested OER-2 that he submitted. He notes that LTC A___ shrewdly provided both good and bad comments; downgrading the applicant in the following performance and professionalism categories: motivates, challenges, and develops subordinates; performs under physical and mental stress; clear and concise in written communication; displays sound judgment; and sets and enforces high standards. He also noted that the applicant was consistently late with Senior Enlisted Evaluation Reports (SEERs). (1) He states that the rater failed to mention the applicant was the honor graduate for Command and General Staff College and several other accomplishments as outlined in the applicant's personal assessment and his OER Support Form (Exhibits 46, 31, and 123). (2) He also states the rater's assessment was tainted by personal prejudice as evidenced by letters from key staff members alleging the rater was unprofessional and jealous of the applicant, he gave him inconsequential and petty work assignments with short suspense dates, he was demeaning to the applicant (and others), and two warrant officers retired early rather than work for the rater (Exhibits 48–51). h. Counsel provides a summary of the applicant's military assignments during the period June 1985 to February 1992 along with excerpts of his raters'/senior raters' favorable OER assessments and comments (and also letters in support of his application) pertaining to his performance of duty in the following positions: * Operations Plans Officer (Communications War Planner), U.S. Forces Korea, from June 1985 to January 1987 (Exhibits 52–57) * Brigade S-4, 160th Signal Brigade, 5th Signal Command, Germany, from February 1987 to June 1990 (Exhibits 58–61 and 64–67) * Operations Plans Officer, Assistant Chief of Staff, Logistics, 21st Theater Area Army Command, U.S. Army Europe, from June 1990 to February 1992 (Exhibits 62–63, 68–75) i. The applicant became a DAC, Plans Specialist, GS-301-11, and served in Security, Plans, and Operations, 21st Theater Army Area Command, Germany. He received the Commander's Award for Civilian Service, Superior Civilian Service Award, and several Exceptional Performance Awards (Exhibits 76–79). He was selected and attended the Army Management Staff College in 1996 (Exhibit 116). He received outstanding civilian evaluations during the period 2 March 1992 through 15 July 1996 (Exhibits 117–122). Counsel offers excerpts from letters in support of the applicant with particular emphasis on the applicant's performance as Project Leader for the development of the Taji National Depot (TND), which included the initial assessment report for deployment of the depot team to Iraq to design and develop the master plan for TND development (Exhibits 77, 81–103, and 125). j. The authors of the letters of support consistently express a positive narrative of the applicant's professional attributes and outstanding duty performance. They express a theme of disbelief that the applicant was not selected for promotion to LTC and also offer disagreement with the ratings/ assessments contained in the two contested OERs. They strongly urge the Board to rectify the applicant's situation through his promotion to LTC (O-5) and retirement in that grade. k. Counsel states the principles that govern the Board should compel the Board to grant the requested relief. He states, "[a]n examination of the relevant legislative history indicates that Congress 'did not intend any limited or technical meaning' for error or injustice and has liberally construed the powers of correction Boards." The Board may assess a case based on evidence of error with regard to legal and procedural issue, but also based on other considerations such as extreme prejudice suffered by an agency action. (1) He states equity should be granted based on: * the applicant's exceptional service record and potential to serve in the next higher grade * the adverse comments in the two contested OERS are not reflective of the applicant's ability to serve in the next higher grade * his transfer from the Signal Branch to the Quartermaster Branch 1 year prior to the promotion board that put him at a disadvantage * his service as a civil employee/contractor, which demonstrates his continued dedication to the U.S. Army and affirms his capabilities * the testimony of more than 50 senior officers, NCOs, and civilians affirming his leadership, moral character, and duty performance (2) He provides a summary of the information previously presented in the legal brief under the following three topics: * The applicant's military record clearly demonstrates he was an exceptional officer capable of performing at the level of LTC. * The only adverse comments within the applicant's personnel record were made by individuals harboring biased prejudice and they falsely suggest that his performance was less than exceptional. * The applicant was transferred from the Signal Branch to the Quartermaster Branch 1 year prior to his promotion board, thereby placing him at a significant disadvantage for promotion to LTC. 3. Counsel provides copies of 125 documents that are specifically identified in a list of exhibits in the legal brief (and above), and that have been summarized and referenced to periods of service/events during the applicant's military career. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (Signal Corps), and he entered active duty on 7 February 1972. He continued to serve on active duty, attaining the grade of rank of MAJ (O-4) on 1 August 1983. 3. A review of the applicant's military personnel records, in pertinent part, show: * Military Education and Training – * Signal Officer Basic Course, 20 April 1972 * Airborne School, 11 May 1972 * Communications Electronics Staff Officer Course, 11 August 1972 * Defense Procurement Management Course (Distinguished Graduate), 14 November 1975 * Signal Officer Advanced Course (Distinguished Graduate), 28 January 1977 * Air Assault School, 3 August 1982 * Supply and Service Management Officer Course (Distinguished Graduate), 26 August 1983 * Command and General Staff Officer (Nonresident) Course (Honor Graduate), 19 June 1985 * Specialty Skill Identifiers (SSI) – * 70205, Parachutist, 12 May 1972 * 00205, Communications and Electronics Staff Officer, 11 August 1972 * 04825, Electronics Maintenance Officer, 5 February 1974 * 04320, Procurement Officer, 24 February 1976 * 72A, Communications–Electronics Maintenance Officer, 11 June 1979 * 45A, Comptroller, 11 June 1979 * 92A, Supply and Service Management Officer, 26 August 1983 * Overseas Service – * Vietnam from 2 September 1972 through 23 February 1973 * Germany from 1 March 1977 through 7 July 1980 * Korea from 22 September 1983 through 4 February 1987 * Germany from 27 February 1987 through 29 February 1992 * Awards and Decorations – * Legion of Merit * Bronze Star Medal * Defense Meritorious Service Medal * Meritorious Service Medal (2nd Award) * Army Commendation Medal * Joint Service Achievement Medal * Army Achievement Medal * National Defense Service Medal with 1 bronze service star * Vietnam Service Medal * Army Service Ribbon * Overseas Service Ribbons (2nd Award) * Republic of Vietnam Campaign Medal * Parachutist Badge * Air Assault Badge * Sharpshooter Marksmanship Qualification Badge with Pistol Bar 4. Contested OER-1 is a change of duty report for the period 1 November 1979 through 9 June 1980 (7 rated months) for duties performed as Company Commander, HHC, 3rd Battalion, 35th Armor. It shows, in pertinent part, in: * Part II (Authentication) – * block a (Rater): LTC James M. S___, Battalion Commander * block c (Senior Rater): COL Larry D. B___, Brigade Commander * block e (Signature of Rated Officer): the applicant * Part IV (Performance Evaluation – Professionalism), nine ratings of "1" [High Degree], four ratings of "2" and one rating of "3" [ratings of "5" = Low Degree], with the comment, "On too many occasions Captain (CPT) [applicant] displayed unsound judgment in dealing with UCMJ [Uniform Code of Military Justice] cases. After initiating action, he destroyed the government's case through his testimony/indorsements." * Part V (Performance and Potential – Rater) – * block b (Performance during this rating period), an "X" in the box for "Usually Exceeded Requirements" * block c (Comment on specific aspects of the performance), in pertinent part, "Worked hard at improving Soldier morale and discipline – only partially successful, requiring much outside help/involvement." * block d (This officer's potential for promotion to the next higher grade is), an "X" in the box for "Promote with Contemporaries" * block e (Comment on Potential), all positive comments * Part VII (Senior Rater) – * block a (Potential Evaluation), an "X" indicating "Center of Mass" * block b (Comments), "Concur with rater. CPT [applicant] performed very well those actions related to the maintenance and administration of an armor battalion HHC. However, discipline/law and order were not maintained to the same high standards. In the future, CPT [applicant] should be assigned to challenging staff assignments within his specialty which require administrative and planning skills of a high order. Give him tough jobs…he has the drive to accomplish them. I do not recommend for further command." 5. Contested OER-2 is a change of duty report for the period 27 August 1984 through 20 June 1985 (10 rated months) for duties performed as Material Management Officer, HHC, 1st Signal Brigade. It shows, in pertinent part, in: * Part II – * block a: LTC Charles W. A___, Director of Logistics * block c: COL Richard J. M__, Brigade Commander * block e: the applicant * Part IV, nine ratings of "1" and five ratings of "2" with, in pertinent part, the comment, "was consistently late with SEERs" * Part V – * block b, an "X" in the box for "Usually Exceeded Requirements" * block c, shows all positive comments * block d, an "X" in the box for "Promote with Contemporaries" * block e, all positive comments * Part VII – * block a, no box check * block b, "I am unable to evaluate the rated officer because I have not been his senior rater for the required number of days." 6. U.S. Total Army Personnel Center, Alexandria, VA, memorandum, dated 24 November 1989, subject: Nonselection for Promotion, instructed the applicant's immediate commander or supervisor to notify him that an Army Promotion Selection Board (PSB) convened pursuant to Title 10, United States Code, section 611(a) (10 USC 611(a)), to consider officers for promotion to their next higher permanent grade and did not report the applicant as recommended for promotion. 7. An Acknowledgment of Nonselection for Promotion, dated 16 January 1990, shows the applicant acknowledged receipt of the notification pertaining to his nonselection for active duty list promotion to the grade of LTC. It also shows he indicated he would complete 18 years Active Federal Service by 8 February 1990 and that he would be retained past that date until retirement qualified and officially notified of his mandatory retirement date. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 29 February 1992 and transferred to a U.S. Army Reserve Control Group (Retired) for length of service. He had completed 20 years and 23 days of net active service this period. It also shows in – * item 4a (Grade, Rate or Rank): MAJ * item 4b (Pay Grade): O-4 * item 12 (Record of Service), block h (Effective Date of Pay Grade): 1 August 1983 * item 21 (Signature of Member Being Separated), the applicant's signature 9. A review of the applicant's Official Military Personnel File (OMPF) failed to reveal any evidence that he submitted an appeal to the U.S. Army Personnel Command for correction, transfer, or removal of either of the contested OERs. 10. In support of the application the applicant and counsel provide, in pertinent part, the following documents: a. Applicant's self-authored statement in which he identifies three events that he believes are central to him not being selected for promotion to LTC. (1) Being transferred from the Signal Branch to the Quartermaster Branch 1 year prior to being considered for promotion to LTC. He states this was due to the Army's redesign efforts to consolidate supply and service logistic functions under the Quartermaster Branch. He acknowledges that he had a number of logistics assignments in the Signal Branch, so it was not an illogical decision. (2) Contested OER-1 covering his last 7 months as company commander in which he was rated and senior rated by a new battalion commander and a new brigade commander. The applicant was a strong anti-drug advocate and enforcer. His former chain of command saw this as positive. However, his new chain of command saw his efforts as negative (a "bad news story"). The rating he received stemmed from his refusal to submit to the battalion commander. He adds he had very little direct exposure to the brigade commander. The applicant perceived a grave injustice with regard to the court-martial of one of his Soldiers. After informing the battalion commander of his intent to present a "no confinement plea" to the brigade commander, the battalion commander advised him not to do so. (The Soldier was convicted, sentenced to confinement at Fort Leavenworth, KS, and dishonorably discharged.) He expresses his strong objections to the rater's comments and believes the brigade commander followed the lead of the battalion commander in his rating on contested OER-1. (3) Contested OER-2 covering his last 10 months as the Materiel Management Officer. He contends the rater made disparaging comments to him (and others under the rater's supervision), he was disrespectful to him during staff meetings, and he assigned him numerous tasks with impossible deadlines. He asserts the rater colluded with the Director of Personnel to purposely delay the OER until after the senior rater departed in order for the OER to process unchallenged by the new senior rater. He notes the rater agreed to a "Close-Out Change of Senior Rater OER" prior to the senior rater's departure; however, the rater claimed he lost the applicant's OER Support Form on two occasions, during which time the senior rater departed the command. The rater then offered his rating (i.e., "nicely, not abusively") without the scrutiny of the former senior rater. He adds that he is certain the former senior rater would have rendered a strong senior rater evaluation. (4) He concludes by acknowledging, "I know I should have appealed the 'Unjust OERs' earlier, but decided otherwise at the time due to the reluctance of my peers to commit their verbal support in writing." b. Copies of documents directly related to the applicant's military service and post-service civilian employment, including – * OERs that span the course of his military career and show the raters' and senior raters' assessments of his performance and potential * certificates, citations, and orders showing his awards and decorations over the course of his military career * letters of appreciation and commendation related to his performance of military duties * academic evaluation reports, certificates, and diplomas related to his military education and training * civilian evaluation reports related to his post-service employment * certificates and citations related to his post-service civilian awards * letters in support of his petition to the Board from general officers, senior military officers, NCOs, and DoD civilians who express – * a positive narrative of the applicant's professional attributes and outstanding duty performance * disbelief that he was not promoted to LTC * their recommendation for his promotion to LTC * a review of the letters submitted by individuals who were present at the time or who had situational awareness of circumstances involving – * contested OER-1: Five letters (Exhibits 32–36) that show favorable comments about the applicant, but no comments that call into question the accuracy or validity of evaluations rendered by either the rater or senior rater * contested OER-2: Four letters (Exhibits 48–51) that show favorable comments about the applicant, criticism of the rater's professionalism and lack of knowledge in logistics, but no comments that call into question the accuracy or validity of the evaluation rendered by the rater (the senior rater did not meet rater qualification and did not render an evaluation) * a further review of all of the letters submitted failed to show any letters from the rater or the senior rater of either of the contested OERs 11. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, U.S. Army Human Resources Command (HRC), Fort Knox, KY. a. The advisory official found the applicant's request for promotion does not have merit. b. The advisory official noted a review of HRC systems failed to show the applicant was promoted to LTC. The exact reason(s) for his non-selection for promotion are unknown because statutory requirements set forth in 10 USC 613a prevent disclosure of board proceedings to anyone outside of the promotion board in question. Therefore, any comments, conjecture, or hearsay by non-voting board members are purely speculative. c. He added that all PSB announcements allow every officer an opportunity to submit correspondence to the President of the PSB and its members to address any issue(s) the officer feels is/are important during consideration. d. The decision not to select the applicant for promotion to LTC does not mean that he was not a quality officer. Rather, it is indicative of the very competitive nature of the promotion system and the quality of the Army officers that he competed against for promotion. e. The advisory official also indicated, if the applicant believes that prior OERs to be unjust and possibly the sole source of his non-selection, he could file an appeal for review by HRC. 12. On 21 December 2015, the applicant's counsel was provided a copy of the advisory opinion to allow for the opportunity to submit comments or a rebuttal. a. Counsel asserted that the application submitted to the ABCMR provides sufficient documentation to establish that the applicant had an impeccable military record and was one of the Army's top officers. The fact that he was non-selected can be attributed to the only grey areas (i.e. the two contested OERs) on an otherwise flawless military record. He adds the documentation provided shows the two contested OERs were unfair and not reflective of his actual performance during the rating periods. (He also restates previous argument.) b. He states the advisory official's suggestion that the applicant could appeal the OERs to HRC does not take into account the amount of time that has passed since the OERs were issued. The OERs pre-date HRC's jurisdiction to act on the appeal to remove the OERs from his OMPF and would most certainly be denied due to timeliness. The ABCMR is the appropriate authority to adjudicate issues of equity and fairness with respect to the applicant's case. c. He notes that there is ground for seeking resolution of a case with a higher authority before exhausting all administrative remedies (i.e., Darby v. Cisneros). However, appealing to HRC in this case would do little more than to prejudicially delay a final decision in this case by the ABCMR. He concludes the applicant's case merits waiver of the 3-year statute of limitations by the ABCMR. REFERENCES: 1. Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the policies and procedures for the Officer Evaluation Reporting System. It states prompt submission of an appeal is recommended as the likelihood of successfully appealing a report diminishes with the passage of time. Substantive appeals on reports rendered 5 or more years prior are particularly difficult to substantiate with credible evidence. a. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. b. As each case is judged on its merit, no firm guidelines can be established on what is needed to support a claim of substantive inaccuracy. Allegations of inaccurate appraisals of performance because of erroneous perceptions and allegations of rating official's bias are difficult to prove. The appellant must prove clearly that the report is inaccurate before relief will be granted. The evidence in most successful appeals comes from individuals whose perspective closely approximates that of the rating officials. Volume is not a criterion for success. Statements from many individuals who occupied the same relative position to the rater generally carry less weight than statements from individual's who observed from various perspectives. c. The following will provide limited support at best: (1) Statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances). (2) Letters of commendation or appreciation for specific instances of outstanding performance. (3) Citations for awards, even during the same period. 2. Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time, provided policies, preparation, maintenance, control, and use of the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. It shows the DA Form 67-8 will be filed in the performance folder of the OMPF. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 4. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. Paragraph 7-2 states Special Selection Boards may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when the board that considered an officer from in or above the promotion zone did not have before it some material information. A material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's non-selection by a PSB. Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. DISCUSSION: 1. The applicant and his counsel contend that the applicant's military service records should be corrected to show promotion to LTC (O-5) back-dated to his original promotion eligibility date; all active duty and retired back pay and allowances associated with the promotion; and removal of all adverse comments from the two contested OERs as a matter of equity based on: * he transferred from the Signal Branch to the Quartermaster Branch 1 year prior to the promotion board, which placed him at a disadvantage * the applicant's exceptional service record and potential to serve in the next higher grade * the testimony of more than 50 senior officers, NCOs, and civilians affirms his leadership, moral character, and duty performance * the adverse comments in the two contested OERS are not reflective of the applicant's ability to serve in the next higher grade * his continued service as a DoD civilian employee/contractor demonstrates his dedication to the U.S. Army and affirms his capabilities 2. The evidence of record shows the applicant was awarded SSI 92A (Supply and Service Management Officer) on 26 August 1983. The contention that the applicant transferred from the Signal Branch to the Quartermaster Branch 1 year prior to the PSB (in 1988) is noted. It is also noted that the applicant acknowledged this was due to the Army's redesign efforts to consolidate supply and service logistic functions under the Quartermaster Branch. a. The evidence of record shows the applicant successfully completed the Defense Procurement Management Course in July 1975 and the Supply and Service Management Officer Course in August 1983 and, in both instances, he was the Distinguished Graduate. In addition, the applicant acknowledges he had several logistics assignments in the Signal Branch and it was a logical decision. b. The evidence of record clearly shows the applicant was qualified to compete for promotion to the next higher grade in the Quartermaster Branch. 3. The Board does not dispute that the applicant's military record demonstrates he was an officer capable of performing at the level of LTC. In this regard, the statements of the senior officers, NCOs, and DoD civilians affirms the applicant's leadership, moral character, and duty performance over the course of his military career. More importantly, many of the applicant's OERs show his rating chain indicated that he had the potential to serve in the next higher grade (i.e., LTC). However, the selection of an officer for promotion to the next higher grade is not based solely on past duty performance and potential to serve in the next higher grade. The officer's entire record is considered and the PSB develops an order of merit list for the entire population (i.e., by branch) of commissioned officers considered by the PSB. Most importantly, the number of officers that may be promoted in any given branch is constrained by the number of projected vacancies in that branch (as determined by Headquarters, Department of the Army) and congressionally-mandated authorization ceilings. Thus, those officers on the order of merit list who fall below the projected vacancy number may not be selected for promotion (i.e., are considered "non-select" for promotion). However, that does not mean they are not capable of performing at the next higher grade level. The fact is that there simply are not enough vacancies to allow for their promotion. 4. The applicant verified that he had seen the two completed contested OERs and he acknowledged this with his signature. The contested OERs are properly filed in the performance folder of the applicant's OMPF. 5. The two contested OER's have "Thru" dates of 9 June 1980 and 20 June 1985, respectively. a. There is no evidence of record that the applicant submitted an appeal pertaining to either of the contested OERs within the 5-year period after the completion of either OER. There is also no evidence of record that shows he submitted correspondence to the President of either the 1988 or the 1989 LTC PSB to address issues the applicant felt were important (i.e., with respect to contested OER-1 and/or contested OER-2). b. The applicant retired from active duty in the grade of MAJ (O-4) on 29 February 1992. c. His petition is submitted approximately 24 years after he retired from active duty and more than 35 and 30 years, respectively, since the completion of contested OER-1 and contested OER-2. d. The applicant acknowledges that he was unable to obtain the written support of his peers and that he should have appealed the contested OERs earlier. e. The evidence in most successful appeals comes from individuals whose perspective closely approximates that of the rating officials. The applicant and his counsel provide a large number of documents and letters that attest to the applicant's performance during periods of both his military and civilian careers that are not related to the periods of service under review. As such, those letters and documents do not offer an important approximate perspective. 6. With respect to contested OER-1, the applicant identified the underlying issue that resulted in the unfavorable comments and assessments as his disagreement with the advice of his rater regarding the court-martial sentencing of a Soldier in his unit and his decision to appeal the matter directly to the senior rater. Specifically, he indicated that he advocated for no confinement of the Soldier. The Solder was found guilty of the charge(s) against him and sentenced to confinement and a dishonorable discharge. This, in itself, offers important information that sheds light on the applicant's judgement in this particular instance. It is also noted that the senior rater concurred with the rater's evaluation of the applicant. 7. With respect to contested OER-2, the applicant contends the rater was unprofessional, disrespectful to him, and that he treated him unfairly. In fact, he now provides letters from a commissioned officer, two warrant officers and one NCO who served with him and lend evidence in support of these contentions. However, there is insufficient evidence to show the lone negative comment by the rater that the applicant "was consistently late with SEERs" is untrue or inaccurate. (It is noted that the rater marked the 14 professional competence categories with nine ratings of "1" and five ratings of "2" with "1" being "High Degree" and "5" being "Low Degree".) While the applicant contends that the rater delayed contested OER-2 until the senior rater departed, it is also noted the change of duty OER occurred on 20 June 1985 and that the rater signed the OER on 29 June 1985, which does not indicate an inordinate administrative delay on the part of the rater. 8. The applicant failed to provide any letters from the rater or the senior rater of either contested OER indicating an error, unjust, or improper rating. 9. The applicant has failed to submit clear and convincing evidence of a strong and compelling nature that contested OER-1 and/or contested OER-2 do/does not represent the considered opinion and objective judgment of the rating officials at the time or that either of the contested OERs are factually inaccurate. 10. The applicant's continued service as a DoD civilian employee/contractor is noted. However, his post-service civilian career has no bearing on his selection for promotion to LTC. 11. An evaluation report accepted for inclusion in the official file of a rated officer's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. There is insufficient evidence to refute the presumption of administrative regularity with respect to contested OER-1 and/or contested OER-2. 12. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that contested OER-1 and/or contested OER-2, filed in the performance folder of his OMPF is/are untrue, in error, or unjust. 13. After a comprehensive review of the contested OERs and the evidence submitted by the applicant and his counsel, there does not appear to be an error in the processing of either of the contested OERs. Likewise, from a statutory or regulatory standpoint, there is no reason to edit or delete comments, or remove either of the contested OERs from the applicant's records. 14. Records show the applicant was: * promoted to MAJ (O-4) on 1 August 1983 * twice non-selected for promotion to the next higher * notified of his non-selection for promotion to LTC (O-5) * retired from active duty in the rank/grade of MAJ/O-4 * placed on the retired list in the rank/grade of MAJ/O-4 a. There is no evidence of record that shows he was promoted to LTC (O-5). b. Since there is no material error in his records, there is no reason to have his records considered by a Special Selection Board. c. Likewise, there is no basis for LTC (O-5) back pay or retired back pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010691 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010691 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2