IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160014838 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: 12 October 2017 DOCKET NUMBER: AR20160014838 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: 12 October 2017 DOCKET NUMBER: AR20160014838 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 correction of his records to show he was promoted to lieutenant colonel (LTC). 2. The applicant states he was not selected for promotion by the fiscal year (FY) 2016 Army Competitive Category LTC Promotion Board that convened on 3 November 2015. He also states through his application and by separate memorandum the following points: * he requests promotion to LTC with an effective date of on or about 1 November 2016 * his non-selection by the FY 2016 board was unjust because he is a top 2 percent officer * in accordance with (IAW) Army Regulation (AR) 600-8-29 (Officer Promotions), chapter 7, he requested promotion reconsideration and his request was denied; thus he has exhausted all administrative remedies * FY 2016 promotion board did not closely examine his record with respect to guidance from the Secretary of the Army to consider the "whole person concept" * he served as an Army Congressional Fellow and a Military Legislative Assistant to a United States Senator * he performed the duties of an O-5 during three assignments prior to the FY 2016 board convening date * he has two Master's Degrees from top-tier civilian institutions – John Hopkins University and George Washington University * prior to his deployment, he was enrolled in distance learning for Intermediate Level Education (ILE), and he was enrolled when the board convened on 3 November 2015 * the mandatory completion date for his ILE was 31 August 2016 * he was progressing through ILE and provided a course progress report * he was deployed when the board convened, he did not have a complete-the-record officer evaluation report (OER) for this deployment period in his file * he performed exceptionally well in five assignments that the Secretary of the Army specifically identified in his promotion board guidance for selection to the rank of LTC * promotion board instructions and guidance were not followed in his case during the FY 2016 promotion board 3. The applicant provides: * OER with thru date 16 January 2010 * OER from a United States Senator with thru date 3 January 2013 * OER from Assistant Secretary of Defense for Acquisition, thru date 31 March 2014 * unsigned letter from Assistant Secretary of Defense for Acquisition, dated 9 July 2014 * Defense Meritorious Service Medal certificate, citation, narrative and award orders dated 20 February 2015 * OER from Assistant Secretary of Defense for Acquisition, thru date 28 February 2015 * letter of support from a former brigade commander, dated 22 June 2016 * U.S. Army Human Resources Command (HRC) Evaluation Selection and Promotion Division Review Panel memorandum, dated 16 August 2016 * Officer Record Brief (ORB), dated 18 August 2016 * email endorsement from a lieutenant general * instructions for the FY 2016 LTC, Army, Operations (OPS), Operations Support (OS), and Force Sustainment (FS) Promotion Board * Johns Hopkins University Master of Business Administration Certificate * George Washington University Master of Professional Studies in Arts Legislative Affairs Certificate * FY 2015 Army Contracting Command (ACC) Awards Program Winners memorandum * ASD (Mr. M____) profile stratification * academic progress report for ILE * self-authored memorandum, dated 2 September 2016 * his professional biography with summary of assignments * photograph of the 2015 Contracting Officer of the Year Award CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned from the United States Military Academy (USMA) as a second lieutenant on 27 May 2000. He was promoted to the rank/grade of major (MAJ)/O-4 in the Regular Army on 1 December 2009. 2. In December 2012, he received an OER for the rating period 4 May 2011 through 3 January 2013 for his duties while serving as an Army Congressional Fellow. A United States Senator served as his rater and senior rater. His rater rated his performance as outstanding, promote below the zone, best qualified, and center of mass. 3. In July 2014, he received an OER for the rating period 4 January 2013 through 31 March 2014 for his duties while serving as the Acquisition Advisor to the Assistant Secretary of Defense for Acquisition (ASD-A), Pentagon, Washington, DC. His rater and senior rater was the ASD-A. His performance was rated as outstanding, promote now, best qualified, and center of mass. 4. In May 2015, he received an OER for the rating period 1 April 2014 through 28 February 2015 for his duties while serving as the Military Deputy for the Undersecretary of Defense Acquisition, Technology, and Logistics-Space, Strategic, and Intelligence Systems, Pentagon. His rater was a colonel (COL) and senior rater a Senior Executive Service Tier 2 civilian. His rater commented he was the best action officer on the staff and he was in the top 5 percent of all officers he had worked with. His senior rater rated him as most qualified and promote below the zone. 5. A review of the applicant's ORB did not show he completed the ILE/Joint Professional Military Education (JPME) I course prior to the promotion selection board (PSB) convening date on 3 November 2015. 6. He was considered for promotion by the FY 2016 LTC Army, OPS, OS, and FS Promotion Board that convened in November 2015. He was not selected for promotion. 7. In July 2016, he received an annual OER for the rating period 1 March 2015 through 28 February 2016 for his duties while serving as the Chief of Pre-Award Contracting, Kuwait Contracting Command. His rater was a LTC and senior rater was a brigadier general. His rater rated him as "Excels," and commented that his performance was number one by any major in his command and that the applicant was the best that he ever rated in his career. His senior rater rated him as most qualified, must select before all peers for promotion, and commented that he was in the top 2 percent of officers. 8. On 16 July 2016, an email shows a lieutenant general wrote a highly favorable endorsement and sent it to several general officers, including the HRC commanding general. This general officer stated the applicant should have been promoted to LTC. 9. On 16 August 2016, his request for promotion reconsideration was denied. By memorandum he was notified the HRC Evaluation Selection and Promotion Division Review Panel had carefully considered his request for promotion reconsideration and determined that his promotion board file did not contain a material error in accordance with Title 10 of the U.S. Code. 10. In support of his application, he also provided: a. A letter of appreciation from the Assistant Secretary of Defense for Acquisition, dated 9 July 2014, thanking him for his dedication and efforts in an O-5 billet. b. Letter of support from a former brigade commander, dated 22 June 2016, highlighting the applicant's qualifications and achievements. c. An academic progress report for ILE Phase 1, dated 30 July 2016, showing academic progress for a number of subjects within the ILE curriculum. He provides a personal note stating he deployed four times to the Middle East, and due to the operations tempo he was unable to complete ILE prior to the promotion board date. He states he should receive "constructive credit" for his multiple masters' degrees and his congressional liaison experiences. d. Self-authored memorandum, dated 2 September 2016, requesting corrective action by the ABCMR. The memorandum points out what he perceives to be the promotion board's failure to follow instructions and guidance. e. Secretary of the Army FY 2016 LTC promotion board guidance in accordance with Title 10, U.S. Code, section 611. f. A copy of award certificates and degrees that include the Defense Meritorious Service Medal, Office of Secretary of Defense Staff Identification Badge, Master of Business Administration from Johns Hopkins University, Master of Professional Studies in Arts (Legislative Affairs) from George Washington University, FY 2015 Army Contracting Command Awards Program Winners memorandum, his professional biography with summary of assignments, and a photograph of him receiving the 2015 Contracting Officer of the Year Award. 11. In the processing of this case an advisory opinion was obtained from the Chief, Officer Promotions, HRC. The advisory official recommended denying the applicant's request for reconsidered by a special selection board (SSB) for promotion consideration to LTC and opined, in part, that: a. 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, Armed Forces subsection(s) 613a and 14104 prevent disclosure of promotion board proceedings to anyone outside of the promotion board in question. Therefore any comments, conjuncture, or hearsay by non­voting board members or the applicant are purely speculative. The decision not to select the applicant for promotion to LTC does not mean that he was not a quality officer, nor was it a wrongful act. Rather, it is indicative of the very competitive nature of the promotion system and the quality of the Army officers that he competed against for promotion. b. 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. 12. A response to the advisory opinion was received from the applicant. He stated: a. His non-selection by the FY 2016 LTC board is a gross violation of the board guidance outlined by the Secretary of the Army. Based on the Department of the Army (DA) published selection rate of 61.5 percent to LTC for FS Officers, this decision could not possibly be correct based on the strength of his promotion packet. The strength of his record clearly demonstrates that he is not in the bottom 38 percentile of his officer year group. The non-selection decision in April 2016 was an oversight and should be reversed. b. The non-selection decision is in fact unjust because it impedes his professional development, prevents him from assuming positions of greater responsibility, and denies him the opportunity to compete for battalion level command selection. These are career opportunities that he earned through his 17-year record of achievement. c. The advisory opinion does not address the merits of his claim nor the core issue before the Board. All officers and non-commissioned officers understand the centralized promotion process is "closed and competitive," but far from perfect. When errors are made, the Army Review Boards Agency is the appropriate mechanism for Soldiers to seek corrective action. d. The advisory opinion also does not address whether the decision itself was correct or whether the board appropriately adhered to the Secretary of the Army's guidance. It also does not account for his record of achievement including being selected for the most competitive assignments ahead of his peers throughout his career where he performed well. e. He commanded a company for 2 years where he was evaluated as "hands-down the best Company Commander in the Brigade." He was selected for the Army Congressional Fellowship Program, a highly selective 4-year internship designed to prepare officers with the highest potential for senior leadership in the Army. In this assignment, a United States Senator evaluated him as "the best military officer that has served on my staff during my 20-year tenure in the United States Senate." He earned Master's degrees from Johns Hopkins University and George Washington University and graduated in the top quarter of both classes. He is a Bronze Star Medal recipient for combat leadership in Iraq. He participated in four overseas deployments. On his most recent 14-month tour to the Middle East (ending February 2016), he was selected as the Army Contracting Officer of the Year and an "absolute must select before all peers for promotion and Battalion Command" by a brigadier general. f. To date, his last five OERs all state best qualified for promotion to the next higher grade. His last five OERs all state battalion commander or higher level positions for which he is best suited in the future. Additionally, his last five OERs all state select for LTC below the zone. Finally, his (former) commander who wrote a letter of support clearly states, "in the Top 2 % [percent] of Majors I have supervised in my 33 year military career" and "the most competent and most qualified major in the Brigade," in his letter of endorsement. There is nothing speculative about his record of achievement. g. An underlying error remaining to be corrected is that the promotion board did not consider a late evaluation report with a thru date of 28 February 2016. That evaluation was from a key developmental position and was submitted 8 months late because his senior rater was suspended and then relieved from command. The lateness of the evaluation was not due to his actions or conduct. The addition of the evaluation to his service history overcomes the presumption that the promotion board’s closed-door proceedings are speculative. The error is apparent and was prejudicial to his selection, and the best interests of the Army are served by correction at this time. h. He has a strong desire to continue to serve the country as an Army officer and to continue to lead Soldiers. The record and evidence submitted demonstrates that he is not in the bottom 38th percentile of his officer year group, and there is no reasonable doubt that he would have been selected had his last evaluation been a part of the promotion board file. He respectfully requests that the Army Review Boards Agency take decisive corrective action to fix the errors that occurred during the FY 2016 LTC board that met on 3 November 2015. 13. On 7 August 2017, he was promoted to LTC with a date of rank and effective date of 1 August 2017. REFERENCES: 1. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The statutory authority for the ABCMR is under the provisions of Title 10, U.S. Code, section 1552. The ABCMR considers individual applications properly brought before it deciding cases on the evidence of record. It is not an investigative body. 2. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides that SSBs may be convened to consider or reconsider commissioned or warrant officers for promotion when Headquarters, DA (HQDA) discovers: a. 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 for which an SSB is required. b. The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error where an SSB is discretionary, c. The board that considered an officer from in or above the promotion zone did not have before it some material information wherein an SSB is discretionary. 3. AR 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System (ERS). Complete-the-record evaluation reports are optional. A complete-the-record OER, may be submitted on a rated officer who is about to be considered by a HQDA level selection board. The rated officer will have served for a minimum of 90 calendar days (excluding nonrated periods) in the same position under the same rater as of the complete the record evaluation report through date stated in the HQDA Military Personnel (MILPER) message announcing the zones of consideration. The MILPER message announcement provides additional eligibility criteria for complete the record OERs. 4. MILPER Message Number 15-247, FY 2016 OPS, OS and FS PSB states a complete-the-record OER is optional for officers who meet the criteria IAW AR 623-3, paragraph 3-56. The required thru date for complete-the-record reports was 3 October 2015. 5. DA Army Pamphlet 600-3 (Officer Professional Development and Career Management) serves primarily as a professional development guide for all officers. It does not prescribe the path 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. For LTC (O-5) development it shows: a. this phase begins with selection for promotion to major. This is a critical period in an officer's career life cycle that demands an acute awareness of important HQDA centralized boards and the preparations they require. The junior field grade years serve to develop the officer cohort in a variety of branch or functional area assignments within their functional category. b. the general development goals are to complete ILE/JPME I, and successfully complete other branch, functional area or broadening assignments prior to consideration for promotion to lieutenant colonel. Officers must complete ILE/JPME I to be eligible for senior service college attendance. 6. Army Directive 2012-21 (Optimization of ILE) outlined changes in Army policy to support transition from universal ILE, which provided an ILE common core resident opportunity for all active component Army officers, to a merit-based selection board process. The term "ILE" refers to all forms of officer JPME I/Military Education Level 4 Professional Military Education. Officer ILE attendance at Fort Leavenworth, Kansas, will be referred to as Command and General Staff College. Although the Army is transitioning to a selection board process for ILE, all Army officers will continue to receive the opportunity for an ILE experience through 10-month resident, or at a 14-week satellite campus or by distance learning. Active component officers not selected for 10-month resident or 14-week satellite campus opportunities or credentialing programs approved in lieu of the ILE Advanced Operations Course will be afforded the opportunity to complete ILE by distance learning. HRC will enroll active component officers in distance learning courses within 6 months after release of the ILE selection board results. Active component officers selected for 10-month resident or 14-week satellite campus opportunities who want to complete ILE by distance learning for compelling reason(s) may request a waiver. To request a waiver, officers were required to submit a written request through the first general officer or equivalent in their chain of command for endorsement through HRC Leader Development Division to the Vice Chief of Staff of the Army for approval. DISCUSSION: 1. By law and regulation, PSBs cannot divulge the reason for non-selection of a particular officer. In addition, the ABCMR is not an investigative body; therefore, there is no basis for further discussion concerning the applicant's suggestion that the FY 2016 LTC PSB did not comply with the Secretary of the Army's guidance. 2. Prior to the convening date of the FY 2016 PSB on 3 November 2015, it appears the applicant was not fully educationally qualified as per established officer development guidance. The general developmental goals for promotion to LTC are to complete ILE/JPME I. Evidence that an officer has completed the military education requirements should be in the officer's file prior to the start of the PSB. 3. Concerning his FY 2016 PSB, promotion reconsideration is appropriate for non-selected officers whose records contained a material error when it was considered by a promotion board. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Upon review, HRC, the proponent for promotion boards, denied the applicant's request for an SSB. 4. Per MILPER Message Number 15-247, a complete-the-record OER was optional for the applicant's promotion board. The board must determine if, in this case, the OER that was eventually submitted as an annual OER with a thru date of 28 February 2016 warrants consideration by an SSB under the FY 2016 LTC promotion criteria. 5. Based on the applicant's multiple advanced degrees, assignment history, deployment history, and awards the board must determine if there is sufficient evidence to waive the recommended military education requirement for LTC or provide him "constructive credit" for ILE/JPME I and then, if warranted, determine if his promotion record should be presented to an SSB with a military education waiver for consideration under the FY 2016 LTC promotion criteria. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014838 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014838 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2