IN THE CASE OF: BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20160002590 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: 13 September 2016 DOCKET NUMBER: AR20160002590 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: 13 September 2016 DOCKET NUMBER: AR20160002590 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 records by including an Officer Evaluation Report (OER) for his non-rated time from December 2013 to October 2014 in the promotion packet that was reviewed by the Major Promotion Board. 2. The applicant states that his military records should be corrected because of an injustice that occurred in 2014 resulting in his being passed over for promotion to major, pay grade O-4. He was in the primary zone for major when his rater and senior rater decided they were not going to write an OER for him prior to the promotion board convening. They told him that his file looked good and that another OER would not matter in the eyes of the board. He was concerned because while he had an Academic Evaluation Report (AER) for a 6-month internship, he believed he needed an OER because the promotion board probably would not look at his AER based on the length of time he served in his job at the time. Also, he asked his rater to do the OER because without it, he would have 8 months of non-rated time when the promotion board convened. The promotion board would consider the non-rated time as a negative. But, believing in his leadership, he accepted what they wanted to do because they said he would be fine with his record and that he would get selected for promotion. Another OER would not have helped or hurt him. Based on the fact that there is zero negative documentation in his files and his meeting the basic requirements for promotion consideration to major, he felt that he was passed over because of not having an evaluation in his record for the non-rated time. And, to be honest, the only reason that OER was not in his file was because his former rater told him he did not have enough time to rate him and that his file was good enough to be selected for promotion. His senior rater agreed with the rater’s suggestion because he was retiring. Now he is asking that this be corrected before he is separated from the Army as a two-time non-select for promotion. He submitted his appeal to this Board because he thought the injustice would have worked itself out based on a subsequent OER he received that covered the non-rated time in question and an OER when he volunteered to deploy with the 21st Combat Support Hospital. He feels that this injustice is something that can be corrected if the right people look at it. He is an outstanding officer who gets the job done. There is nothing derogatory in his file to cause the promotion board to give him a bad rating. He feels he met all of the requirements for selection to major. All of his OERs are good enough to warrant his promotion to major. He asks that the Board consider this request to correct the injustice. He believes he was mistakenly passed over for promotion due to a technicality beyond his control. 3. The applicant provides copies of: * Six OERs covering the overall period 13 February 2010 to 14 June 2013 * One AER covering the period 8 July to 13 December 2013 * Two OERs covering the overall period 14 December 2013 to 30 April 2015 CONSIDERATION OF EVIDENCE: 1. Records show the applicant entered active duty on 24 January 2002 and was appointed as a second lieutenant, Medical Service Officer. He was promoted to captain effective 1 November 2008. 2. Records show the applicant was a non-select for promotion to major by the fiscal year 2015 Army Medical Department Promotion Selection Board. This was his second non-selection. 3. Orders 056-0002, Joint Base Lewis-McChord, dated 25 February 2016, directed the applicant’s release from active duty (REFRAD) and transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 1 July 2016. 4. The applicant’s DD Form 214 (Certificate of Release from Active Duty) indicates that he was REFRAD on 1 July 2016 due to non-selection for promotion. He had completed 10 years, 10 months, and 1 day as a commissioned officer. 5. A memorandum for the applicant, dated 2 July 2016, states that he was granted a waiver of his 2-time non-selection for promotion and was reappointed in the rank of captain, pay grade O-3 in the USAR, effective 2 July 2016. 6. A review of the OERs and AER provided by the applicant shows: a. A change of rater evaluation for the period 6 June 2008 to 2 March 2009 indicating him to be the best qualified with outstanding performance and must promote. This report shows no non-rated time. b. A change of rater evaluation for the period 3 March 2009 to 12 February 2010 indicating him to be the best qualified with outstanding performance and must promote. This report shows no non-rated time. c. An annual evaluation for the period 13 February 2010 to 12 February 2011 indicating him to be the best qualified with outstanding performance and must promote. This report shows no non-rated time. d. An extended annual evaluation for the period 13 February 2011 to 14 June 2012 indicating him to be the best qualified with outstanding performance and must promote. He was given a center of mass profile. This report shows 12 months of rated time and 4 months and 1 day of non-rated time. The codes indicate the reason for non-rated time as Q (lack of rater qualification); S (Student at military or civilian school); and I (In transit between duty stations). e. An annual evaluation for the period 15 June 2012 to 14 June 2013 indicating him to be the best qualified with outstanding performance and must promote. He received a center of mass profile. This report shows no non-rated time. f. An academic evaluation for the period 8 July 2013 to 13 December 2013 indicating he achieved course standards with satisfactory and superior abilities. g. A change of duty evaluation for the period 14 December 2013 to 23 October 2014 indicating he was a knowledgeable and experienced officer who performed superbly. His potential was described as most qualified. This report shows no non-rated time. h. A change of rater evaluation for the period 24 October 2014 to 30 April 2015 indicating his performance was outstanding. His potential was described as highly qualified. This report shows no non-rated time. 7. 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). It determined that the applicant’s request did not have merit. a. A review of the documents submitted by the applicant did not indicate a non-rated period of service. Military Personnel (MILPER) Message Number 14-131, issued 13 May 2014, states that in order for an OER to have been reviewed by the board members it must have been received by HRC Evaluations Branch by 8 August 2014. The OER with an ending date of 23 October 2014 would not have been seen by the board members due to the through date being after the OER cutoff date. If the applicant believes that the through date on his OER is incorrect, he may go through the OER appeals process found in Army Regulation 623-3, chapter 4 and in Department of the Army Pamphlet 623-3, chapter 6. b. The specific reason for his non-selection is unknown because statutory requirements as set forth in Title 10, U.S. Code, section 613a, prevent disclosure of the proceedings to anyone outside of the promotion board in question. The decision to recommend an officer for promotion is based on the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer’s overall record when compared to the records of other officers being considered. 8. On 23 March 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. The applicant provided a Memorandum for Record, dated 19 April 2016, wherein he offered the following comments and arguments: a. After reviewing the advisory opinion, it is clear that the details were not explained clearly. The intent of his contacting this Board was to show that his rater at the time of the injustice did not do his job by completing a change of rater OER prior to FY 2014 promotion board. It is because he did not receive this OER that he is asking that his file be looked at again. He believes that this is the only reason that he was passed over for promotion. He also understands that the promotion board proceedings are closed to outside entities, but there is no way he should have been passed over based on his record and quality of performance evaluations. b. He was told that his board file was good enough to get promoted and that an evaluation from him would not sway the board either way. This is why he has submitted his documentation to this Board. The injustice that occurred was his former rater not completing a change of rater evaluation regardless of his opinion about how good his file looked. He had 6 months that should have been captured on an OER. Another thing that his former rater said to him was that because he had an AER for attending a 6-month internship, whatever work he did since going to Madigan [Army Medical Center] would be insignificant in regards to producing a strong OER for the FY 2014 promotion board. He disagreed with him; but, still no OER was rendered. His personnel officers did not advise him or his rater to do the right thing by completing a change of rater OER. c. What he submitted to this Board was done in an attempt to show how his previous rater did not do his job; and, how his subsequent rater tried to correct it. The advisory opinion stated that one of the OERs he provided with this request would not have made it in front of the Promotion Board in 2014. He knows that. He sent that OER to show that his current rater tried to correct what the previous rater failed to do as required by regulation. This is not a case of appealing an OER, this is a case of being passed over unjustly due to a senior officer's dereliction of duty. He knows that the Army is looking for reasons to put people out, and not having a change of rater OER for 6 months of performance is an easy discriminator for a promotion board. All he wants is for the promotion board to take another look at his file to see if he would have been selected for promotion had that OER been in the file. Additionally, he is asking that he be considered for promotion with his peers because he knows he is a solid officer who has been passed over on a technicality that is not his fault. He does not feel he should have been passed over. His record speaks for itself. He is a solid performer who takes care of Soldiers and accomplishes all missions. If that is the type of person you want in this Army, then please relook my file and correct what has been wronged. d. Timeline of events: * July 2013 - started LTHET (USAMMA Internship) * January 2014 -reported to Madigan Army Medical Center (rater -LTC J________ B_____) June 2014 -LTC B____ PCS's to Korea (no change of rater OER completed) * June 2014 -LTC D___ G_______ arrives to Madigan Army Medical Center as the Chief of Logistics August 2014 - AMEDD Promotion Board Convenes * October 2014 - I volunteered to deploy to Kuwait for six months (LTC G_______ completes change of rater OER and captures the time that LTC B_____ did not) REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) provides for the separation processing of commissioned officers who are twice non-selected for Active Duty List Promotion by an Headquarters, Department of the Army centralized promotion board. Commissioned officers on the active duty list who are twice non-selected for promotion to the rank of major will be involuntarily released from or discharged unless they are: a. Selectively continued; b. Within 2 years of retirement (completes 18 or more years AFS on their scheduled release date); c. Retired; or d. a health professions officer. These officers shall be retained on active duty until completion of their active duty service obligation prior to discharge, unless sooner retired or discharged under another provision of law. 2. Army Regulation 623-3 (Evaluation Reporting System) provides for optional reports. A complete the record OER is an optional report. Therefore, the absence of such a report from an officer’s Official Military Personnel File at the time of a board’s review will not be a basis to request a standby reconsideration unless the absence is due to an administrative error or a delay in processing at HQDA. A complete the record report may be submitted on a rated officer who is about to be considered by a HQDA selection board for promotion providing the following conditions are met: a. The rated officer will be in or above the zone of consideration for promotion. b. The rated officer will have served for a minimum of 90 days in the same position under the same rater as of the complete the record date announced in the HQDA message announcing the zones of consideration. c. All other rating chain time minimums apply. DISCUSSION: 1. The applicant contends that his military records should be corrected by including an OER for his non-rated time from December 2013 to October 2014 in the promotion packet that was reviewed by the Major Promotion Board. He believes that his rater at the time did not do his job by completing a change of rater OER prior to the FY 2014 promotion board. It is because he did not receive this OER that he is asking that his file be looked at again. He believes that this is the only reason that he was passed over for promotion. He argues that there is no way he should have been passed over based on his record and quality of performance evaluations. 2. The available evidence shows the only non-rated time for the applicant was a 4-month period sometime during the 16 months from 13 February 2011 to 14 June 1012. This overall period was recorded on an extended annual OER which shows he was rated for 12 months. 3. It appears that the applicant’s rater may have had the option to render an OER to complete the record which could have ended prior to the promotion board cutoff date of 8 August 2014. However, the absence of such a report cannot be used as a basis to request reconsideration unless the absence was due to an administrative error. In this case, the evidence indicates the rater clearly decided to not render such as report. 4. Regarding the applicant’s belief that there is no way he should have been passed over for promotion based on the quality of his OERs, his argument is without merit. A promotion board takes into consideration many different factors when determining who are selected for promotion. While a Soldier’s OER has significant importance, so does a Soldier’s type and variety of assignments, level of both military and civilian education and the needs of the Army at the time. There is no way of knowing if he would have been selected had his rater decided to initiate an optional report prior to the cutoff date. The decision to recommend an officer for promotion is based on the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer’s overall record when compared to the records of other officers being considered. 5. In reviewing this case, there is no evidence of error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002590 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002590 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2