ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20160013897


APPLICANT REQUESTS:  

* promotion reconsideration to lieutenant colonel (LTC) by a special selection board (SSB)
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* seventeen DA Forms 67-9 (Officer Evaluation Report (OER))
* three DA Forms 1059 (Service School Academic Evaluation Report)
* seven Recommendation Letters
* Recommendation for Award
* Civilian Institution Academic Evaluation Report
* Language Training Report
* President, Fiscal Year (FY) 2015 LTC Promotion Selection Board, letter

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:

	a.  He was not selected for promotion based upon bias introduced at the time of his non-selection on the primary zone promotion consideration.  An ill-timed deployment with early draw-down redeployment sent a “center-mass (COM)” evaluation for a “key billet” into his primary board for LTC.  Despite achieving two subsequent "above center mass" (ACOM) evaluations from Senior Executive Service level raters before his mandatory retirement date (MRD), his MRD preceded release of final promotion board results.  At the time of final promotion board, he held three ACOM evaluations.  The U.S. Army Human Resources Command (HRC) official commented that two ACOM evaluations were sufficient for promotion.  It is possible that he was selected for promotion on final eligible promotion board; however, because board results were unduly delayed, over 5 months, he was removed from standing because administrative delay prevented release of board results. Board results were released approximately 2 weeks after MRD.

	b.  He was selected on back-to-back orders for two of most competitive active duty programs, instructor for the U.S. Military Academy and a Foreign Area Officer (FAO).  Following the FAO selection and training in Chinese for nearly 3 years and costing $500,000.00, he was assigned on an individual augmented deployment to Afghanistan in support of an infantry brigade.  He redeployed with the COM evaluation for consideration before the primary zone promotion board at the same time he was part of an early draw-down and position termination.  His first promotion non-selection followed.

	c.  He worked to overcome bias and prejudice after the non-selection in order to receive two additional ACOM evaluations; however, to no avail.  He has documented a 20 year history of being consistently selected for the distinguished honor graduate, commandant's list, and being the number one officer.  He was part of an unfortunate draw-down, deployment, and evaluations that did not even allow him the opportunity to utilize his last 3 years of Chinese training.

3.  The applicant provides the following:

	a.  Seventeen DA Forms 67-9, for the years from 1997 to 2015, showing he received ratings of “Best Qualified, “ ACOM,” “COM,” and “Highly Qualified,” with exemplary comments from his raters and senior raters.

	b.  Three service school and civilian academic evaluation reports, dated between 1997 and 2005, attesting to his exceeding course standards.

	c.  Recommendation for award of the Meritorious Service Medal for exceptionally meritorious service from 2 March 2000 to 15 July 2002.

	d.  Seven recommendation letters, dated between 1999 and 2015, attesting to his superior performance and proven track record of success through is accomplishments.

	e.  President, FY2015 LTC Promotion Selection Board memorandum, dated 16 January 2015, wherein he highlighted his accomplishments and achievements throughout his military service.

4.  Review of the applicant’s service record shows:

	a.  Having prior enlisted service, he was commissioned in the Regular Army, as a second lieutenant, on 31 May 1997.  He was promoted to major on 1 January 2007.

	b.  He was considered and not selected for promotion to LTC by the FY 2014 and 2015 LTC Promotion Selection Boards.

	c.  He was honorably retired on 30 June 2015.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 20 years of active service.

	d.  An advisory opinion was received from the Chief, Officer Promotions and Special Actions, HRC, on 12 June 2018.  The HRC official stated:

		(1)  Based on a review of their records and the information provided, HRC found that the applicant’s request for an SSB did not have merit.  He was requesting reconsideration for promotion to LTC based on his assumption that a bias occurred during his above the zone look for promotion due to being a non-select for promotion in his primary zone.  He did not provide supporting documents to support his assumptions.  A review of the Official Selection Support System indicates that he was considered for promotion to LTC under the FY 2014 and 2015 LTC Promotion Selection Boards, but he was not selected.

		(2)  The reasons for his non selection are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613a (Nondisclosure of Board Proceedings) prevent disclosure of these proceedings to anyone outside the promotion board in question.  The decision to recommend an officer for promotion was based upon 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.  Reconsideration could only occur as a directive by the ABCMR.

	e.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  In his rebuttal, dated 24 June 2018, the applicant stated:

		(1)  Before his mandatory retirement in July 2015, he admittedly did not have the foresight to document promotion selection rates or conversations with branch management personnel.  Therefore, he did not have source documents to forward to the Review Board a year later in 2016 when he decided to submit his appeal after a discussion with and recommendation from then Army Adjutant General.

		(2)  Additionally, since he is currently denied access to HRC's website, promotion page, and the FAO branch website, he has no recourse to obtain all the selection numbers and year-by-year breakouts that the HRC advisory official could easily review and observe the institutional bias for himself.  He humbly requests that the HRC advisory official provide a review of the promotion numbers/selection rates for your consideration:  specifically for 48F (China FAO) to LTC- prior to Year Group (YG) 1996 (FY 2012 LTC and before), separately for YG1997 and YG 1998 Primary Zone (PZ) and Above the Zone (AZ) LTC Boards (FY 2013 and FY 2014 LTC), separately for FY 2015 LTC PZ/AZ thereafter.  The 48F data should be compared to the entire 48 branch as well as the Army at large (any data that he had presented to the same, would have had to been verified by the HRC advisory official’s office regardless).

		(3)  By the time of the FY 2015 LTC Board (appx February 2015 - a second AZ board that was afforded to him only because of the timing of his MRD, he had three ACOM’s in my file and a retirement date of July 1, 2015.  He had been notified that he was eligible for the board; however, the board proceedings drew-out to an exceedingly long duration that year and the results were not released until the end of July-weeks after his MRD.  When other officers were being promoted to LTC with only two ACOMs in their file, how was it that 3 ACOMs-well-known to be the single most significant factor in promotion criteria did not warrant his selection to LTC?  With the board results not being released until weeks after his retirement, is it likely that his file had been selected but removed from the promotion list since his MRD had passed or some other institutional bias prevented my selection?

		(4)  These two factors support institutional bias against 48F and him, i.e. the abysmally low promotion rates for 48F {0% 48F selection versus -15% for 48 and Army at large) and the fact that three ACOM’s did not warrant his selection to promote.  He is not sure what supporting documentation the HRC advisory official would need when an analysis of the data that his office already controls would support his contention.  He is enclosing his three ACOM evaluations in support; although all of that information is in his OMPF and readily accessible.

		(5)  He is willing and able to discuss any of this further, in person even, and to provide any additional information as requested.  If the Board would allow him supervised access to the HRC website, he would also travel to the Board spaces in Arlington to attempt to retrieve relevant promotion data from published promotion lists and from the FAQ manager website - although he fears older data could have already been removed (but, should still accessible to the Officer Promotion section and to the FAO branch manager analysis.

5.  By AR 600-8-29 (Officer Promotions), SSB may be convened to consider or reconsider commissioned officers for promotion because the officer was erroneously not considered and his/her records contained a material error at the time of consideration.  No material error was presented by the applicant.  The reasons for his non selection are unknown because the statute prevents disclosure of these proceedings to anyone outside the promotion board in question.  The decision to recommend an officer for promotion was based upon 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.  

6.  By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was not warranted.  The Board thoroughly looked at his records and determined there was no material error that necessitates sending his service records to an SSB. Promotion boards do not divulge the reason for non-selection (unless related to education).  The applicant’s contention that the board was biased is speculative as he does not know why he was not selected.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that what the promotion board did was correct (select the best qualified for promotion).  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known. A non-selected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the characterization of his service.

	 
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.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 600-8-29 (Officer Promotions), in effect at the time, prescribed the officer promotion function of the military personnel system.  It provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Chapter 7 provided for SSBs and stated in:

	a.  Paragraph 7-2 – SSB’s could be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA 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.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (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).

	b.  Paragraph 7-3 (Cases not considered) – an officer would not be considered or reconsidered for promotion by an SSB when the following occurred.

		(1)  The officer was 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/her grade.  The officer would 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 OMPF.  It was the officer’s responsibility to review his/her ORB and OMPF before the board convened and to notify the board, in writing, of possible administrative deficiencies in them.

	c.  Paragraph 7-11, officers who discovered that material error existed in their file at the time they were non-selected for promotion could request reconsideration.
3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20160013897


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