IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20160006854 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 7 June 2018 DOCKET NUMBER: AR20160006854 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, reconsideration for promotion by a Special Selection Board (SSB) under the Fiscal Year 2009 (FY09) Major (MAJ) Army Maneuver, Fires, and Effects, Operations, Support, and Force Sustainment Competitive Categories, Promotion Selection Board (PSB) criteria. The applicant also requests: a. promotion to lieutenant colonel (LTC)/pay grade O-5 based on the first zone of consideration he would have been eligible for (based upon promotion to MAJ under the FY09 MAJ PSB criteria) with retention on active duty for a minimum of three (3) years to allow him to retire in grade O-5; b. all back pay, allowances, and entitlements (i.e., leave with approval to "sell back" all leave in excess of the allowable number of days because he would have planned and utilized the leave, if he had been given the opportunity); and c. an Internal Revenue Service Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) be issued with no money withheld (so as not to adversely affect his tax bracket; he is exempt based on his circumstances). 2. The applicant states he was passed over for promotion to MAJ (O-4) in 2009 by a PSB that had a 96 percent (%) selection rate. He was promoted to MAJ (effective and with a date of rank (DOR) of 1 June 2011) by an active duty SSB that had a 93% selection rate. He states, based on simple math, it would seem he should have been promoted in 2009. a. He believes human error to be a factor in his 2009 non-selection. He states it could have been someone who knew him, had a poor opinion of him, and adversely influenced the board. It could also have been a perceived error in his record that biased the board. b. He states an award recorded on his Officer Record Brief and that he was wearing on his uniform in his Department of the Army official photograph is one matter that comes to his mind. He asserts that he turned in a complete copy of the award order to the Personnel Services Battalion at Fort Bragg, NC. However, the complete order was not added to his military personnel record (i.e., the signature page of the order is missing). Later, he could not find a complete copy of the award order. His branch manager told him it would not matter based on the level of the award, he did not have to remove the ribbon from his uniform, and he did not have to retake his official photograph. c. He concludes, "Based on my OERs [Officer Evaluation Reports] and my SSB, I can't except [sic] that I was in the bottom 4% [of officers considered for promotion to MAJ in FY09] and, if so, then the error is with the system, a system promoting a secret system of rating that rewards those in the know and penalizes those that are in the dark. Which is a fact that is hard to dispute when you look at that timeframe." 3. The applicant provides a copy of his promotion order. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the U.S. Naval Reserve and in the U.S. Army Reserve (USAR). 2. He was appointed as a Reserve commissioned officer of the Army on 21 April 2000 and he entered active duty on 21 June 2000. a. Upon completion of training he was detailed in the Aviation branch. b. He was promoted to the rank of captain/pay grade O-3 on 1 November 2003. 3. U.S. Army Human Resources Command (HRC), Alexandria, VA, Memorandum For Record, dated 29 March 2010, subject: Selective Continuation for [applicant], shows the applicant was considered by the FY10 MAJ Army PSB and not selected. (It was his second non-selection for promotion to MAJ.) He was informed that the established strength ceiling limited the number of eligible officers that could be selected; therefore, many highly qualified officers could not be promoted. Accordingly, his non-selection reflected the unavoidable fact that not all officers in the highly professional officer corps could be promoted through each successive grade. a. A selection board subsequently recommended the applicant for selective continuation on active duty for an additional there (3) years in his present grade. He was informed that if he declined selective continuation, he was required to be separated from the Army not later than 1 October 2010. b. The applicant declined selective continuation and requested appointment in the USAR. 4. Army Board for Correction of Military Records (ABCMR) Docket Number AR20120006335, dated 31 January 2013, denied the applicant's requests for reinstatement to active duty, correction of his discharge document, elimination of a break in service, credit for qualifying service, and promotion to MAJ. 5. U.S. Army HRC, Fort Knox, KY, Orders B-07-304620, dated 26 July 2013, promoted the applicant to MAJ (O-4) in the USAR effective and with a DOR of 17 June 2013 based on reaching maximum time in grade. 6. ABCMR Docket Number AR20130014586, dated 22 August 2013, considered the applicant's request for reconsideration and granted him full relief that included reinstatement on active duty and consideration for promotion to MAJ by an SSB. 7. On 5 September 2013, the Deputy Chief of Staff, HRC, notified the applicant of his eligibility for retired pay upon application at age 60. 8. U.S. Army HRC, Fort Knox, KY, Orders B-10-406101, dated 6 October 2014, promoted the applicant to MAJ (O-4) in the USAR effective and with a DOR of 19 October 2012 based on an SSB (2013RS131208) that adjourned on 11 December 2013. 9. In a supplemental review, ABCMR Docket Number AR20140010265, dated 5 August 2014, amended the previous ABCMR decision of "full" relief to "partial" relief. The applicant was reinstated on active duty from 2 October 2010 through 14 November 2011 and transferred to the USAR Control Group, Individual Ready Reserve (Annual Training) effective 15 November 2011. He also received a lump sum leave payment in the amount of $178.20. 10. U.S. Army HRC, Fort Knox, KY, Orders 232-502, dated 20 August 2015, promoted the applicant to MAJ (O-4) in the U.S. Army effective and with a DOR of 1 June 2011 based on an SSB with Senate confirmation on 5 August 2015. 11. The applicant is currently serving in the USAR in the rank of MAJ (O-4). 12. A review of the applicant's military personnel record in the integrated Personnel Electronic Records Management System failed to reveal any individual award orders or certificates that were not signed/authenticated. 13. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC, dated 17 November 2017. The HRC advisory official reviewed relevant records in the Official Selection Support System and information provided by the applicant. He stated that the applicant was considered, but not selected for promotion under the FY09 MAJ Maneuver, Fires, and Effects, PSB. The reasons for his non-selection are unknown because statutory requirements prevent disclosure of proceedings to anyone outside the promotion board in question. He added that the decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merits of an officer's overall record when compared to the records of other officers being considered. 14. On 28 November 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. There is no evidence of record that shows the applicant provided a response. REFERENCES: 1. Title 10 (Armed Forces), United States Code, section 613a (Nondisclosure of board proceedings), shows: a. Prohibition on Disclosure: The proceedings of a selection board convened under section 573, 611, or 628 of this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. This prohibition is a statutory exemption from disclosure, as described in Title 5, USC, section 552(b)(3). b. Prohibited Uses of Board Discussions, Deliberations, Notes, and Records: The discussions and deliberations of a selection board described in subsection (a) and any written or documentary record of such discussions and deliberations: (1) are immune from legal process; (2) may not be admitted as evidence; and (3) may not be used for any purpose in any action, suit, or judicial or administrative proceedings without the consent of the Secretary of the military department concerned. 2. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 (SSBs) shows that SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 (Purpose of boards) shows that SSBs may be convened under Title 10, United States Code, section 628 (10 USC 626) to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. (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). b. Paragraph 7-3 (Cases not considered), an officer will not be considered or reconsidered for promotion by an SSB when the following occurs: (1) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board. (2) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or Official Military Personnel File (OMPF). (The ORB is a summary document of information generally available elsewhere in the officer's record. It is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.) DISCUSSION: 1. The applicant contends that his military service records should be corrected by showing his record was referred to an SSB under the FY09 MAJ (O-4) Army Maneuver, Fires, and Effects PSB criteria and selected for promotion to MAJ; that he was also selected for promotion to LTC (O-5) based on the first zone of consideration he would have been eligible and retained on active duty for a minimum of three years for purposes of retirement; all back pay, allowances, and entitlements; and issuance of an Internal Revenue Service Form 1095-C. The bases of his contentions are the FY09 MAJ Army PSB had a 96% selection rate; the SSB that selected him for promotion had a 93% selection rate; and his consideration by the FY09 MAJ Army PSB was flawed and/or biased. 2. The applicant's contention regarding selection percentage rates of the FY09 PSB and the SSB is noted. It is also noted the evidence of record shows that established strength ceilings limited the number of eligible officers that could be selected. Therefore, many highly qualified officers could not be promoted. 3. The applicant's contentions of human error(s) and administrative error(s) (i.e., an unsigned award order and wearing the ribbon on his uniform for his official photograph) creating bias against him and/or an individual having a poor opinion of him and influencing the board member(s) against his selection were carefully considered. a. The applicant failed to provide specific information regarding the award in question. In any event, an authorized award (i.e., filed in his military personnel record, recorded on his ORB, and worn on his uniform in his official photograph) would be insufficient as a basis for an SSB. b. The applicant's contentions (alone) of bias by an individual and/or by a board member(s) are an insufficient evidentiary basis for an SSB. 4. There is no evidence of record that shows the applicant notified the president of the FY09 MAJ Army PSB, in writing, of the possible administrative deficiencies he contends existed in his promotion board file. 5. The evidence of record is insufficient as a basis for consideration by an SSB. 6. In the absence of granting relief for consideration by an SSB under the FY09 MAJ Army PSB criteria (and, therefore, without earlier selection and promotion to MAJ), there is no basis for correcting the applicant's records to show promotion to LTC (O-5), as requested; retention on active duty for a minimum of three years for retirement; back pay, allowances, and entitlements; or issuance of an Internal Revenue Service Form 1095-C. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006854 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006854 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2