BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150013547 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 the rank of lieutenant colonel by a special selection board under the Fiscal Year 2013 promotion criteria. 2. The applicant states: * he is requesting relief based on the adverse effect that attending intermediate level education (ILE) at the satellite location at Fort Belvoir, VA, had on his promotion chances * the satellite course met all the requirements of promotion and was approved by the Office of the Judge Advocate General (OTJAG) Personnel, Plans, and Training Office * only after the Fiscal Year 2013 promotion board was completed did he learn that the satellite course option, as opposed to attending the resident course at Fort Leavenworth, KS, had a negative effect on his chance for promotion * the compelling reasons he attended the satellite course as opposed to the resident course were material information that the promotion board should have known when making its decision * he should be given the opportunity to be reconsidered with his primary zone peer group along with a letter explaining the circumstances surrounding his attendance at the satellite course * had this information been available to the board at the time, it is reasonable to believe there would have been a good chance he would have been selected for promotion to lieutenant colonel * the lack of a letter to the president of the promotion board in his records should have resulted in the U.S. Army Human Resources Command's approval of his request to convene a special selection board for his promotion reconsideration * such a letter would have explained the compelling reasons for his unconventional military assignment history and his attendance at the satellite ILE course * he did not submit a letter for the Fiscal Year 2013 promotion board because the pertinent data was unknown to him at the time of the board * in May 1996 he was commissioned as an officer in the U.S. Army Military Police Corps * while serving as an active duty military police officer, he applied for the Funded Legal Education Program, which would have allowed him to attend law school while serving on active duty and become a judge advocate upon graduation * he was not accepted into the program, thus he ended his active military service in June 2001 to attend law school and joined the California Army National Guard upon separation from active duty * he began law school in August 2001 and when the terrorist attacks of 11 September 2001 occurred, his Army National Guard unit was activated and he volunteered to mobilize with the 49th Military Police Battalion to Fort Lewis, WA, for 10 months * he reenrolled in law school upon his return and completed his law degree in 2005 * he passed the California bar examination in the summer of 2005 and was accepted into the active duty Army Judge Advocate General's (JAG) Corps in January 2006 * with his prior service time and delay in completion of his legal education due to mobilization, he was one of the most senior captains in the active duty JAG Corps upon graduation from the officer basic course * based on time in service, he was eligible for the major promotion board in June 2006, but requested removal of his name from promotion consideration in order to obtain more practical legal experience * this produced the side effect of adding another year to his time in service * he submitted his promotion packet to the 2007 major promotion board and was assigned to a challenging position as a brigade judge advocate while he awaited the results of the 2007 promotion board * his son was born in October 2007 with end-stage renal failure * this necessitated his compassionate reassignment to Fort Sam Houston for his son's prolonged hospitalization and daily dialysis * he was selected for promotion and was promoted to major effective 20 March 2008 * ordinarily after promotion to major, a JAG Corps officer is assigned to attend the JAG School graduate course at the University of Virginia in Charlottesville, VA * at the time of his promotion, he was the Chief of Justice at Fort Sam Houston and had to balance the demanding professional schedule with frequent surgeries and constant medical appointments for his son * his son's condition had worsened and it was determined he would require a kidney transplant, thus he requested to stay at Fort Sam Houston for 1 more year to allow his son to medically stabilize and begin testing for possible donors before moving to the Charlottesville area * his requested deferral of the graduate course was approved and over the next year he was determined to be a perfect match for donating a kidney to his son * he began attendance at the graduate course in the summer of 2009 after researching that the Children's Hospital at the University of Virginia Medical Center had a strong pediatric transplant team and the surgery could be done there while he attended the school * on 17 December 2009, he successfully donated his kidney to his son and returned to his graduate course after the Christmas holiday without missing any time due to medical appointments * 5 months later, he graduated then deployed to Afghanistan for 1 year * after his tour of duty in Afghanistan ended, he was assigned to the Pentagon OTJAG Labor and Employment Division where he prepared his personnel file for the lieutenant colonel promotion board * the only requirement he had left to fulfill was military education, specifically ILE * normally every JAG Corps officer is considered for the resident course taught at Fort Leavenworth over a 10-month period * due to deferral of his graduate course and subsequent deployment, he had very little time remaining before his promotion board to take the resident course and discussed viable options with his personnel office * Fort Leavenworth does not have the facilities to handle medical cases as complex as his son's and his new office needed manning for the next 18 months, thus he requested to take the satellite course * he was therefore removed from the resident course consideration board, but at no time in his coordination with the personnel office was he advised that this would have a detrimental effect on his career or promotion opportunities * all his personal research before the promotion board showed attendance at the satellite course was an equally viable way to meet his educational requirements * he did not know until after the board results were published that he had significantly hindered his chance for promotion by making the decision to attend the satellite course * the Fiscal Years 2013 and 2014 promotion boards put improper emphasis on the resident ILE course, to the degree that it is violation of the spirit of the Secretary of the Army's guidance to the boards * according to regulatory guidance, a material error or an absence of material information is a reason to hold a special selection board, yet the U.S. Army Human Resources Command denied his request for a special selection board despite the board's lack of material information * he contends he did not have all the facts and statistics at the time of the Fiscal Year 2013 promotion board, thus he didn't write a letter to the board * the statistics he submitted with his request for a special selection board were facts, not conjecture or hearsay, but unfortunately he had never seen such published statistics prior to the 2013 board * those statistics clearly show those officers who attended the resident ILE course had a distinct advantage over those who did not * the statistics show that every single officer who attended the resident ILE course was selected for promotion by the 2013 board, thus attendance at the resident course was the greatest single factor in determining who was promoted * the JAG Corps personnel office advises officers against having correspondence in their promotion packets as it tends to slow down the evaluation process and he followed that advice * after the published analysis from the Fiscal Year 2013 board, he decided to submit a letter to the Fiscal Year 2014 board, which really ought to have been seen by the Fiscal Year 2013 board when he was looked at in the primary zone * the chance to be selected for promotion in the above-the-zone category for Fiscal Year 2014 was 7 percent versus the rate for the primary zone of 70 percent * the members of the Fiscal Year 2013 board would naturally assume by virtue of his attendance at the satellite course that he applied for the resident course but was not selected * he has prior service as a platoon leader, had the opportunity to command Soldiers, mobilized with the Army National Guard, assisted with Hurricane Katrina efforts, and accomplished a wide range of missions not available to most judge advocates * his unconventional background includes a variety of experiences gained through years of service that should be considered fairly without being outweighed by this extreme emphasis on attendance at one academic course 3. The applicant provides: * table of enclosures * email correspondence with officials at U.S. Army Human Resources Command Promotions Branch * Judge Advocate Career Model * email from the OTJAG Personnel, Plans, and Training Office * Fiscal Year 2013 ILE Selection Board Results Analysis * special selection board request packet to the U.S. Army Human Resources Command * response to the advisory opinion * JAG Corps pamphlet titled, "Preparing Your Board File" CONSIDERATION OF EVIDENCE: 1. After prior service in the Regular Army and Army National Guard as a military police officer, he was accepted into the active duty Army JAG Corps in January 2006 where he is currently serving as an active duty major. 2. In August 2013, he was considered for promotion to the rank of lieutenant colonel by the Fiscal Year 2013 JAG Corps lieutenant colonel promotion board but not selected for promotion. 3. In 2014, he was considered for promotion to the rank of lieutenant colonel by the Fiscal Year 2014 JAG Corps lieutenant colonel promotion board but not selected for promotion. 4. On 19 March 2015, he submitted a request for promotion reconsideration by a special selection board to the U.S. Army Human Resources Command. His packet contained extracts from JAG Corps Publication 1-1 (Personnel Policies), a letter he had previously submitted to the Fiscal Year 2014 lieutenant colonel promotion selection board president, two letters of endorsement, two JAG Corps memoranda providing analysis of Fiscal Years 2013 and 2014 lieutenant colonel promotion selection board results, and the Secretary of the Army instructions for the Fiscal Year 2014 lieutenant colonel JAG Corps promotion selection board. 5. On 23 April 2015, he was notified by the U.S. Army Human Resources Command that his request for reconsideration for promotion by a special selection board based on his non-selection by the Fiscal Years 2013 and 2014 boards was denied. a. He was advised that special selection boards are prohibited to any person who by maintaining reasonably careful records may have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion. b. The respective zone message announcing the respective promotion board afforded each candidate the opportunity to correspond directly with the president of the board and its members to address any issues that were not readily visible by viewing his or her respective file. c. A review of his board file indicates he viewed and certified his board file and did in fact write a letter to the president of the Fiscal Year 2014 board explaining his situation. 6. An advisory opinion was obtained from the U.S. Army Human Resources Command, dated 30 September 2015. The Chief, Officer Promotions Special Actions, states: a. The applicant's request for reconsideration for promotion to lieutenant colonel by a special selection board under the Fiscal Year 2013 or Fiscal Year 2014 criteria does not have merit. b. The applicant did not submit irrevocable proof to support any claim that he was disadvantaged and non-selected for promotion solely based on his attendance at ILE via satellite. The officer record briefs made available to voting board members do not denote ILE course attendance via satellite or ILE resident attendance at Fort Leavenworth. Additionally, there is no prerequisite for completion of ILE prior to promotion selection to lieutenant colonel. c. He acknowledged he received ILE credit for the courses he had completed to date, thus no error occurred. The DA Form 1059 (Service School Academic Evaluation Report) contained in the performance folder of his Army Military Human Resources Record (AMHRR) only reflects completion of phase one (Common Core) of ILE. There are two phases for completion of ILE. This may be the reason his officer record brief did not reflect ILE qualification at the time of promotion consideration. He is encouraged to contact his career manager to request an overview of the documents contained in his AMHRR referencing coding of his ILE. d. Any presumption, suspicion, comments, conjecture, or hearsay by non-voting board members regarding his non-selection for promotion are purely speculative. The exact reasons 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. It can only be concluded that the promotion board determined his overall record when compared with the records of his contemporaries did not reflect as high a potential as those selected for promotion. 7. The applicant was provided a copy of the advisory opinion and given an opportunity to respond. In his 30 October 2015 response, he stated: a. The advisory opinion provided by the U.S. Army Human Resources Command is erroneous and unfounded. The opinion did not provide any documentation to support its position. The analysis it gave was superficial and overlooked the evidence he provided which directly contradicted the opinion. b. His request for a special selection board is based on two issues. First, the promotion board placed an unfair emphasis on attending a specific academic course, namely the residential ILE course at Fort Leavenworth. Second, in order for his promotion file to be fairly evaluated, the reason behind his attendance at the satellite course needs to be made known to the promotion board. c. Since 2013, the chief of JAG personnel has issued a report after the promotion boards, providing the selection statistics. The advisory opinion ignores those reports that were made following the Fiscal Years 2013 and 2014 promotion boards. In those reports, a profound advantage to attending the resident course is shown. For the Fiscal Year 2013 JAG Corps Lieutenant Colonel Board, every judge advocate who attended the resident course at Fort Leavenworth was selected for promotion with only 40 percent of those who attended a non-resident course being selected. For the Fiscal Year 2014 board, officers who attended the resident course had a 96-percent promotion selection rate. d. The opinion states the officer record briefs available to the voting board members do not denote ILE satellite or ILE resident course attendance which is demonstrably false according to the JAG Corps publications. Officers who attend the full 10-month resident course have their officer record briefs annotated with both ILE Common Core and ILE Qualification Course while officers who attend the 4-month satellite ILE courses have their officer record briefs annotated with Common Core. e. Officers who attend the resident course have an additional annotation on their officer record briefs which singles them out as having attended the resident course. He does not claim an error in coding his officer record brief with regard to his attendance at ILE, but rather that the promotion board was able to discern which officers attended the satellite course and which attended the resident course by a review of their officer record briefs and subsequently placed an improper emphasis on those who attended the resident course. f. The evidence he presented in support of his request for a special selection board comes from officially-released documents created by responsible authorities in the JAG Corps personnel section. It is not "presumption, suspicion, comments, conjecture, or hearsay" as suggested by the advisory opinion. g. A special selection board should be convened based on the lack of material information in the promotion board's consideration of his file. An improper emphasis was placed on the resident ILE course, to the degree that it is in violation of the letter and the spirit of the Secretary of the Army's guidance. If attendance at the resident ILE course represents such a major broadening experience to its graduates to the degree that it makes their promotion opportunities a certainty, then an explanation as to why he did not attend the resident course needs to be included in his promotion file and reviewed by the board for the process to be fair. h. He attended the satellite ILE course in order to continue his son's pediatric renal post-transplant care. The fact that this care was extremely sensitive – coming immediately after a kidney transplant involving multiple specialists, over 20 appointments, and frequent laboratory work – necessitated continued monitoring and examining of both he and his son by the medical team that performed the kidney transplant from him to his son. This precluded any possibility of him attending the resident ILE course at Fort Leavenworth. This information is not in his primary zone file and he did not provide this information via a letter to the board president because he was unaware of how detrimental satellite course attendance was to his promotion chances. This information is material for the promotion board to know and should be included in his promotion file in order for him to be fairly evaluated. i. If there is indeed no prerequisite for completion of ILE prior to promotion to lieutenant colonel, then the JAG promotion boards have in fact created such a requirement and made attendance at the resident course a "ticket puncher" for promotion. The over-reliance on one small aspect of an officer's career resulted in his file being unfairly and inaccurately evaluated during his primary zone promotion board. 8. Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of Regular Army officers. A special selection board may be convened to consider or reconsider a commissioned officer for promotion based on erroneous non-consideration or material error which existed in the record at the time of consideration. A material error is of such a nature that, in the judgment of the reviewing official, it caused the individual's non-selection by a promotion board and had the error been corrected at the time the individual was considered, a reasonable chance would have resulted in the individual having been recommended for promotion. 9. The U.S. Army Human Resources Command Selection Boards Frequently Asked Questions web site states the military education requirement of completion of the Command and General Staff Officers Course or ILE is not mandated for promotion for active duty lieutenant colonel boards. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for reconsideration for promotion to the rank of lieutenant colonel by a special selection board was carefully considered. 2. He was non-selected for promotion to lieutenant colonel by the JAG Promotion Selection Board for both Fiscal Years 2013 and 2014. 3. He claims the reason for his non-selection for promotion was singularly due to his attendance at the satellite ILE course in lieu of the resident course at Fort Leavenworth and that both promotion boards put undue, improper emphasis on resident ILE course attendance. He claims he would have had a reasonable chance of being promoted if the Fiscal Year 2013 promotion board members were aware of his reasons for attending the satellite course, namely the serious health issues of his young son. 4. The reasons for his twice non-selection for promotion to lieutenant colonel are unknown because statutory requirements prevent the disclosure of board proceedings to anyone outside the promotion board members in question. Despite statistics showing a very high number of graduates from the resident course were selected for promotion, there is no indication that either board put undue or improper emphasis on resident attendance at the ILE course or that the applicant's conclusion regarding the reasons for his non-selection are accurate. Moreover, completion of ILE is not a prerequisite for promotion to lieutenant colonel. His records accurately reflect his ILE attendance. 5. The inclusion of a letter to the president of the promotion board is not a requisite document in the promotion board file, but is optional. He had the opportunity to include a letter to the president of the Fiscal Year 2013 promotion board to put any clarifying information he felt was not fully or fairly represented by his record at the board's disposal, to include his reasons for attending the satellite ILE course or history what he terms his unconventional career path, but chose not to do so of his own volition. The promotion board did not fail to consider such a letter; rather, he never submitted such a letter for consideration. He claims he was unaware of his need to compose a letter as he did not have any statistics regarding the correlation between promotion selection and ILE attendance at his disposal at the time nor was he counseled to include a letter to the board. 6. After his 2013 non-selection, he subsequently submitted a letter to the president of the Fiscal Year 2014 promotion board. The letter fully explains his circumstances to the board and he was nonetheless non-selected. 7. There is no evident material error or omission in the applicant's records which disadvantaged his selection for promotion to lieutenant colonel. 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 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) AR20150013547 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150013547 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1