IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20160005298 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: 20 October 2016 DOCKET NUMBER: AR20160005298 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 HE 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: 20 October 2016 DOCKET NUMBER: AR20160005298 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 his year group (YG) be changed from YG 2006 to YG 2008 and his records reviewed for promotion consideration to major (MAJ). 2. The applicant states: a. His YG was changed from YG 2008 to YG 2006 based on a 2011 Army Board for Correction of Military Records (ABMCR) recommendation and a subsequent 2012 special selection board (SSB) decision. These decisions changed his first lieutenant (1LT) and captain (CPT) dates of rank (DOR). b. The records of officers in YG 2008 match his records with regard to years of service and time in grade (TIG) in the respective ranks of 1LT and CPT (3 years of LT evaluations and 4 years of CPT evaluations at the time of his primary zone look for MAJ). c. His original YG 2008 was based on the fiscal year he entered active duty as a second lieutenant (2LT). His YG was changed, more than 3 years later, to YG 2006. His unique situation does not seem fair. d. He is currently a non-select for primary zone promotion to MAJ (Fiscal Year (Fiscal Year (FY) 2015 Army Medical Department (AMEDD) MAJ Promotion Selection Board). His non-selection was most likely due to his drastic year group change from YG 2008 to YG 2006. All of the officers he competed against for "best qualified" promotion to MAJ had 2 to 3 years more TIG than he did. e. His YG was unjustly changed and it has had a significant negative impact on his military career. By changing his YG, it put him at a great disadvantage because he was considered for promotion 2 years earlier than the normal glide path. 3. The applicant provides: * a 4 page personal statement * Officer Record Brief (ORB) * reassignment orders to Fort Hood, Texas * Basic Officer Leadership Course, Phase II, Diploma * MS-Platoon Leader Officer Basic Course * 1LT promotion orders * CPT promotion orders * orders amending his 1LT DOR * orders amending his CPT DOR * Meritorious Service Medal Certificate * Expert Field Medical Badge Certificate * DA Form 1059 (Service School Academic Evaluation Report for the AMEDD CPT Career Course * Air Assault Course Certificate of Graduation * Record of Proceedings (ROP) ABCMR Docket Number AR20100028363, dated 8 July 2011 CONSIDERATION OF EVIDENCE: 1. The applicant is a Regular Army Medical Specialist Corps (MSC) CPT. 2. His record shows he: a. was appointed as a 2LT, MSC, with an effective and DOR of 1 June 2002 upon graduation from the United States Military Academy (USMA); b. completed the AMEDD Officer Basic Course (OBC) in June 2008 after he was disenrolled from the Uniformed Services University of Health Sciences (USUHS); c. was promoted to 1LT with effective date and DOR of 15 July 2009. The effective date and DOR were later amended to 16 January 2008. d. was promoted to CPT with an effective and DOR of 15 March 2011. The effective date and DOR were later amended to 1 August 2009. 3. On 22 October 2010 the applicant petitioned the Board requesting: a. retroactive promotion to CPT effective, 15 January 2008, the date he was academically disenrolled from the USUHS, or b. retroactive promotion to 1LT, effective 5 January 2008, and then retroactive promoted to CPT, effective 5 July 2009, in accordance with the normal promotion glide path for officers on the active duty list (ADL). 4. In ABCMR Docket Number AR20100028363, dated 7 July 2011, the Board recommended granting the applicant partial relief by: a. showing he was disenrolled from USUHS on 15 January 2008 in the rank of 2LT with a DOR of 1 June 2002; b. showing he was recommended for promotion to 1LT and so promoted with an effective date and DOR of 16 January 2008; c. upon attaining the minimum qualifying TIG as a 1LT, submitting his records for consideration by a duly-constituted SSB for promotion to CPT; d. showing his records are further corrected, if selected for promotion to CPT on his date of eligibility, as determined by appropriate Department officials, under the appropriate year criteria, provided he was otherwise qualified and met all other prerequisites for promotion; e. notifying him, if he was not selected; and f. auditing his military pay records and paying him any monies due him as a result of these corrections. 5. The Board recommended denial of so much of his application that pertained to showing he was automatically promoted to 1LT on the date of his disenrollment or promoting him to CPT at the time of his disenrollment from USUHS. 6. In his personal statement the applicant related: a. He was commissioned as a 2LT on 1 June 2002 through the USMA. b. During his senior year at the USMA, he applied and was accepted to study medicine in an active reserve status at the USUHS, Bethesda, Maryland. From August 2002 until March 2008, he was assigned to USUHS as a 2LT. He was disenrolled on 15 January 2008 and continued as a research assistant until he received permanent change of station orders on 9 March 2008. c. He attended the Basic Officer Leaders Course (BOLC II) and the AMEDD OBC at Fort Sam Houston, TX. Upon successful completion of the AMEDD OBC program, he transferred to the 2nd Battalion, 8th Cavalry, 1st Cavalry Division, at Fort Hood, Texas as an MS officer. d. He served as the Battalion Medical Platoon Leader for 2nd Battalion, 8th Cavalry, from 29 July 2008 to 30 January 2011. He was promoted to the rank of 1LT on 15 July 2009. e. He was promoted to CPT on 15 March 2011, while serving as the Hospital Operations Officer for the Carl R. Darnall Army Medical Center (CRDAMC). f. On 8 July 2011, the ABCMR determined that his 1LT DOR should be changed to 16 January 2008 and that his records should be submitted to an SSB for earlier promotion consideration to CPT; this decision was based on constructive credit consideration for his active reserve time before 2008. g. On 6 December 2012, his DOR for CPT was changed from 15 March 2011 to 1 August 2009 by an SSB (his YG group was changed from YG 2008 to YG 2006; this change led to the elimination of 2 years? worth of time as a CPT prior to a look for MAJ). h. He was passed over for promotion to MAJ. His non­selection for MAJ was probably due to his drastic year group change from YG 2008 to YG 2006. All officers he competed against for "best qualified" promotion to MAJ had 2 to 3 years more evaluations than he did and also a higher TIG. In other words, going into his primary zone for promotion consideration to MAJ, he had 3 years' worth of evaluations at the rank of LT and 4 years' worth of evaluations at the rank of CPT. He believes he was at a disadvantage from the start of his military career based on his unique situation. i. In August·2014, he noticed that his year group had been officially changed from YG 2008 to YG 2006. He was looked at for below the zone (BZ) promotion to the rank of MAJ by a promotion selection board (PSB) (at this point of time he had been a CPT for just over 3 years, original DOR being 15 March 2011). This YG change eliminated 2 years? worth of time as a CPT prior to his look for MAJ. k. In August 2016 his unique record will go before a regular promotion selection board for above the zone (AZ). This will be his last opportunity for promotion. l. He humbly requests that his year group be changed back to YG 2008 from YG 2006. He officially entered active duty as a 2LT in January 2008 and spent 3 years TIG as a 1LT. He was promoted to CPT prior to any changes to his records, leaving him with three evaluations at the rank of LT prior to record changes. He believes that a YG change will give him a fair chance moving forward in his career. The number of his evaluations (3 years at LT, 4 years at CPT) and years of experience (7 years) matches up with YG 2008 at the time of his primary zone look for MAJ. Even with promotion to MAJ, he fears he will always be behind his peers with fewer years of service and fewer evaluations. m. He believes that his YG was unjustly changed from YG 2008 to YG 2006 based on the 2011 recommendations from the ABCMR and decisions by an SSB. He agrees with the changes made to his DOR; he does not agree with the change made to his YG because it has had a significantly negative effect on his career progression potential. (He is currently a primary zone non-select for FY 2015 AMEDD MAJ Promotion Selection Board). The ABCMR and SSB decisions of 2011 and 2012 were executed to enhance his career, not harm it. Currently, he has been and will be at a disadvantage in every promotion selection board moving forward. n. Presently, his BZ look occurred after 3 years TIG as a CPT; his primary zone (PZ) look occurred after 4 years TIG as a CPT. Ultimately, his final above the zone (AZ) look will occur in August 2016 after 5 years TIG as a CPT. At this point of time his actual peers (YG 2008) will be looked at for the first time for their BZ look. He will always have fewer years of evaluations compared to those he is competing against for future promotions if allowed to remain in YG 2006. o. Lastly, he stresses the fact that he officially pinned on the rank of CPT on 15 March 2011: all ABCMR and SSB corrections occurred to his records after this date. His accomplishments to date compare well to those with his TIG at the rank of CPT. p. He also requests the Board review his records to determine whether his records qualify for promotion reconsideration to the rank of MJA. He believes that he is fully qualified and meets the FY 2015 criteria for promotion to MAJ even though his TIG as a CPT was just over 4 years when reviewed. If it is determined that he is fully qualified for promotion to MAJ, he humbly requests strong consideration for promotion selection to the rank of MAJ. 7. In the processing of the case, an advisory opinion was received from the Chief, Officer Promotions Special Actions, U. S., Army Human Resources Command, Fort Knox, Kentucky, on 10 June 2016. The advisory official stated the applicant's request did not have merit and noted: a. Officers eligible to be considered by a PSB are not determined by YG but by DOR announced in Headquarters, Department of the Army (HQDA) Military Personnel (MILPER) message(s) released approximately 90-120 days before the promotion board convenes. Rules for verifying eligible officers and data to be considered by the PSB are found in Army Regulation (AR) 600-8-29 (Officer Promotions), chapter 4. If it is determined after a board convenes that an eligible officer was omitted in error due to incorrect data and should have been considered, the officer’s record will be reviewed by an SSB per AR 600-8-29, chapter 7. b. The ABCMR decision in Docket Number AR20100028363 determined there was sufficient evidence to warrant partial relief in the form of showing he was recommended for promotion and so promoted to 1LT with an effective date and DOR of 16 January 2008 to include submitting his records for consideration for promotion to CPT by an SSB. c. All PSB announcements allow for a considerable amount of time for every officer to review and update their promotion board files as they see fit, it also allows the officer an opportunity (if desired) to submit correspondence to the President of the board and its members to address any issues he or she feels is important during consideration. Failure to do so does not constitute material unfairness or a material error to be reconsidered for promotion by an SSB. d. The exact reason(s) for the applicant's 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 outside of the promotion board in question. It does not appear that the decision(s) made by the ABCMR were done in error, but approved based upon the facts of his case at the time. 8. A copy of the advisory opinion was provided to the applicant for his review and comment. He provided a response in which he stated: a. He disagrees with the advisory opinion wherein it states his case does not warrant attention and lacks merit. His case is unique, spanning several years and incorporating an ABCMR decision and SSB. b. He understands that PSBs are not determined by YG but by DOR announced in HQDA MILPER message(s) released approximately 90-120 days before a board convenes. It is for this reason that he brings his case to the ABCMR. No matter how his case is reviewed, the fact still remains that his files went before a selection board at the point in his career where he only had 4 actual years of service in the rank of CPT. His officer evaluation reports covered only 4 years of evaluation time in the rank of CPT: this is profound due to the fact that all other officers he was evaluated against had six (PZ) to seven (AZ) years? worth of CPT evaluations. From the beginning he was at a disadvantage, this is not fair. c. He also understands that the exact reason(s) for his non-selection for promotion are unknown because of statutory requirements set forth in Title 10 and that it prevents disclosure of board proceedings to anyone outside of the promotion board in question. This being said, he cannot overlook the fact that his limited years of service as a CPT played a role in the decision. He does not have any derogatory information in his records. He believes that an SSB will afford him a fair and equal opportunity for promotion based on the merit of his files. At this point, he fears that highlighting the fact that he will have less than 2 to 3 years of service to the President of a promotion board will negatively impact his opportunity for serious promotion consideration. d. He humbly requests that the ABCMR thoroughly review his unique case and strongly consider recommendation of his case for an SSB based on FY 2016 or FY 2017 criteria. He understands the great significance this case has on the rest of his Army career and looks forward to an ultimate decision from the ABCMR. He takes great pride in serving his country and would like to be given an equal opportunity to serve and progress in his military career. He asks the Board to explore any options that would give him back lost time (2 years) and/or afford him a fair chance at future promotion boards. He has full confidence that his case will be looked upon with the upmost fairness. REFERENCES: 1. Department of the Army Pamphlet (DA PAM) 600-3 (Commissioned Officer Professional Development and Career Management), serves as a professional development guide for all officers. It does not prescribe the pattern of assignments or educational requirements that will guarantee success, but rather describes the full spectrum of developmental opportunities an officer can expect for a successful career. a. As part of the Officer Personnel Management System, the Army defines primary and secondary zones of consideration for field grade promotions by basic year groups. The in-the-zone population, or primary zone, is usually established by the dates the first and last due course officer was promoted from a specific YG. A due course officer is one who has been on continuous active duty since commissioning as a 2LT and who has neither failed selection for promotion nor been selected for promotion from below the zone. This primary zone is accessed into the Army, and at times shaped, to achieve a promotion opportunity that is relatively similar over a period of years. Normally an officer within a cohort YG enters the primary zone of consideration for MAJ around the 9th year of service. Below the zone consideration occurs a year earlier. b. The hub around which all the subsystems revolve is centralized selection. Strength management, professional development, and evaluation of individual contribution occur in the series of centralized DA and HRC selection boards for retention, career status, schooling, promotion, field grade command designation, and selective early retirement. These boards employ evaluation reports, competency guidance, and strength requirements to advance individuals to the next stage of professional development. Officers generally flow through the centralized selection subsystem by groupings based on date of rank. Company and field grade officer groupings are termed cohort year groups. Each board is preceded by a zone announcement that specifies the makeup of the cohort or inclusive zone. Centralized selection perpetuates the ideals, cultural values, ethics, and professional standards of the Army by advancing and retaining only those individuals best qualified to assume positions of greater responsibility. Centralized selection has evolved over time to account for the impact of law, policy, budget, Army and officer needs, and proponent vision. c. The Defense Officer Personnel Management Act (DOPMA) became effective 15 September 1981. DOPMA was a major revision to Title 10, U.S. Code and is still the basis for YG management of the company and field grade officer corps. In 1984, the DOPMA provisions of Title 10, U.S. Code were amended to overcome certain unintended consequences of the original act and to give the Service secretaries more flexibility in limiting eligibility for promotion consideration. 2. AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides guidance and instructions 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 HQDA 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 official military personnel record (OMPF). DISCUSSION: 1. The applicant is not a due course officer as defined by DA PAM 600-3. He was commissioned and entered the USHUS education program in 2002 as a Reserve commissioned officer. In 2008, he was removed from this program prior to graduation. He remained on active duty to complete his service obligations. He disagreed with his 1LT and CPT DORs so he petitioned the ABCMR. As a result of his request, corrections were made to the applicant's record resulting in changes to his 1LT DOR from 15 July 2009 to 16 January 2008 and his promotion to CPT with a DOR of 15 March 2011 to 1 August 2009. 2. The applicant now claims he is at a disadvantage as a result of these changes in competing for promotion to MAJ. He requests his cohort YG be changed back from 2006 to 2008. There is no regulatory provision allowing or authorizing a change to a cohort YG. A cohort YG is based on DOR. HRC determined there is no error in his 1LT or CPT DOR. 3. All promotion selection board announcements allow for a considerable amount of time for every officer to review and update their board files as they see fit. The announcement also allows the officer an opportunity (if desired) to submit correspondence to the President of the board and its members to address any issues he or she feels are important during consideration. Failure to do so does not constitute material unfairness or a material error. There is no specific number of evaluations required for an officer to be considered by a promotion board. While the applicant argues he has fewer evaluations because his CPT DOR was adjusted, in fact, since promotion boards, by statute, do not release the reasons for their decisions, one cannot presume that having fewer evaluations was the basis for his recent non-selection for promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005298 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005298 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2