BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160019625 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 BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160019625 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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20160019625 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 records by revoking or rescinding his separation from the U.S. Army Reserve (USAR) and referral of his records by special selection board (SSB) for consideration for promotion to the rank/grade of major (MAJ)/O-4. 2. The applicant states that the Fiscal Year 2016 (FY16), MAJ Non-Active Guard Reserve (AGR), Promotion Selection Board (PSB) considered documents in his Army Military Human Resource Record (AMHRR) that were placed in his records in error. Those documents are presumed to be the reason for his non-selection for promotion. He received orders separating him from the USAR effective 1 January 2017 due to being a two-time non-select for promotion to MAJ (O4). 3. The applicant provides copies of his discharge orders, documents pertaining to his request for SSB, election of options due to non-selection, Field Artillery (FA) Basic Officer Leader Course (BOLC), branch transfer, and FY16 PSB data. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's separation from the USAR be rescinded or revoked and his records referred to an SSB for consideration for promotion to the rank/grade of MAJ/O-4. 2. Counsel states that the applicant was issued orders to separate him from the USAR effective 1 January 2017. As a result, the applicant will suffer irreparable harm to his Army career, losing valuable professional skills necessary to continue as an Army logistician, and command and leadership skills necessary for normal career progression. a. He states the applicant was a two-time, non-select for promotion to MAJ due to administrative error committed by the U.S. Army Human Resources Command (HRC). He was branch transferred from FA, area of concentration (AOC) 13A (FA, General) to Logistics (LG), AOC 90A (LG, General). However, HRC did not did not complete the branch transfer action in the appropriate AMHRR systems. As a result, the applicant's records went before the FY16 MAJ Non-AGR PSB as an FA officer. b. The applicant's DA Form 1059 (Academic Evaluation Report (AER)) for his FA BOLC and his DA Forms 67-7 (Officer Evaluation Reports (OERs)) as an FA officer were reviewed. This likely caused the board to determine that the applicant was not a capable FA officer as compared to the 30 percent of eligible FA officers who were selected for promotion. c. Had the applicant's board file correctly identified him as an LG officer, it is very likely that the PSB would have ignored the FA BOLC AER and OERs and relied upon the more recent LG BOLC AER and his performance in command of a logistics company. d. The applicant has exhausted his administrative remedies to correct the error. Counsel states the applicant's AHMRR contains three errors: (1) a DA Form 1059 that shows he "Marginally Achieved Course Standards" during the BOLC ending 26 June 2007; (2) he was identified as an FA officer (AOC 13A) when he was actually an LG officer (AOC 90A); and (3) an undergraduate college transcript was filed in his records that was not the applicant's. e. The applicant and counsel petitioned for correction of the applicant's records and consideration by an SSB as an LG officer; however, HRC failed to exercise its authority. Counsel states the U.S. Army (HRC) committed legal error in failing to exercise its authority to make ministerial corrections to the applicant's record and refer his records to an SSB (Title 10, U.S. Code, section 14502 (10 USC 14502)). Instead, HRC relied upon Department of Defense (DoD) Instruction (DoDI) 1320.11 (SSBs), paragraph 3, that prohibits an SSB for any person who, by maintaining reasonably careful records, may have discovered and taken steps to correct that error or omission. f. Counsel states the applicant identified the three errors to HRC in a letter, dated 27 September 2016. He indicated he discovered the errors during a post-board screen of his promotion file that he was unable to recognize prior to the deadline established in the Military Personnel PSB message that announced the pre-board instructions. In a 17 October 2016 email message to the applicant, HRC noted, "our records also indicate that you did not view or certify your board file. We will relook your case once you provide us evidence of due diligence and what efforts were made prior to the convene date of the board to correct and update your records." g. Counsel states the three errors were administrative errors: (1) an HRC official carelessly placed another Soldier's college transcript in the applicant's AMHRR; (2) an HRC official committed an administrative error by not updating personnel systems to reflect the branch/AOC change; and (3) an Army official committed a negligent administrative error when an incorrect DA Form 1059 was submitted reflecting the applicant's substandard performance. He adds that none of these administrative errors are "material" error because they to do not go to the merits as to whether the applicant was qualified for promotion. They were administrative errors that were the result of actions by Army officials and the U.S. Army had the responsibility to correct the errors; not the applicant. h. Counsel states the applicant had no capability to certify his "My Board File" because he did not have access to the Army Portal, Army email, or any Army computer system. His Common Access Card (CAC) was inoperable and there were no Real-Time Automated Personnel Identification System (RAPIDS) facilities within a reasonable commuting distance to obtain a new CAC. i. Counsel concludes by stating the applicant is a victim of "the system." This includes the careless actions by Army officials and the applicant's inability to view his promotion board file (online). He is being penalized for a system he had no control over. 3. Counsel provides no additional documentary evidence. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (FA), on 21 May 2006. He was ordered to active duty on 30 May 2006. 2. He was promoted to the rank of captain (CPT)/pay grade O-3 on 1 June 2009. 3. On 13 October 2010, the applicant submitted his unqualified resignation. 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably separated on 1 March 2011 and transferred to the USAR Control Group (Reinforcement). He had completed 4 years, 9 months, and 2 days of net active service this period. 5. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of CPT (FA), on 2 March 2011. 6. A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS), in pertinent part, revealed the following: a. A DA Form 1059, completed on 26 June 2007, that shows the applicant attended FA BOLC III, Class 003-07, from 7 March 2006 [sic] through 26 June 2007 and "Marginally Achieved Course Standards." It shows he successfully completed the course with an overall average of 74.96%. It also shows he was recycled into FA BOLC III Class 003-07 from FA BOLC Class 004-06 for failing to meet course academic standards. The applicant indicated that he did not wish to make comments and he placed his signature on the document. (The AER was added to his AMHRR on 30 January 2008.) b. A DD Form 214 shows he entered active duty this period on 6 March 2012 in support of Operation Enduring Freedom. He was honorably released from active duty on 10 June 2013 and transferred to a USAR unit. He had completed 1 year, 3 months, and 6 days of net active service this period. c. Five OERs (spanning the period 16 July 2007 through 23 December 2014) document the applicant's performance in various FA duty positions. (The applicant digitally signed all five OERs using his CAC; the last OER was digitally signed on 14 January 2015.) d. Headquarters, 88th Regional Support Command, Fort McCoy, WI memorandum, dated 2 December 2015, subject: Reclassification of Army Reserve Officer shows FA branch was withdrawn as the applicant's primary branch, he was appointed in/awarded LG branch/AOC 90A, and FA was designated as his secondary branch. (The memorandum was added to his AMHRR on 30 December 2015.) e. A DA Form 1059, completed on 30 October 2015, shows the applicant attended the LG Captains Career Course from 19 October 2015 through 30 October 2015 and "Achieved Course Standards." The applicant digitally signed the AER using his CAC on 30 October 2015. (The AER was added to his AMHRR on 18 November 2015.) f. A DA Form 1059, completed on 14 September 2016, shows the applicant attended FA BOLC III, Class 003-07, from 7 March 2007 through 28 June 2007 and "Marginally Achieved Course Standards." It also shows he successfully completed all requirements of the FA BOLC III. The applicant did not sign the document. (The AER was added to his AMHRR on 19 January 2017.) g. Headquarters, U.S. Army Field Artillery School, Headquarters, 428th FA Brigade, Fort Sill, OK, memorandum for record (MFR), dated 22 September 2016, subject: Successful Completion of FA BOLC III, shows an Academic Records Technician documented that the applicant was recycled during FA BOLC III due to failing the Gunnery portion in class 004-06. Due to administrative error, the applicant was provided with only one (1) DA Form 1059 and it was annotated incorrectly. This error was not the fault of the applicant. (The memorandum is an enclosure to the AER (discussed in paragraph 6f, above) and was added to his AMHRR on 19 January 2017.) h. Two OERs (spanning the period 1 June 2015 through 31 December 2016) document the applicant's performance as an LG (AOC 90A) officer while serving as Commander, 855th Quartermaster Company (Field Service), South Bend, IN. The second OER was a "referred report" based on the applicant's failure to take/pass the Army Physical Fitness Test and the applicant provided a response. i. St. John's University, College of Professional Studies (Administrative Studies) transcript, issued 13 September 2016. It shows the applicant was awarded a Bachelor of Science degree on 14 May 2006. (The transcripts were added to his AMHRR on 15 September 2016.) j. Headquarters, USAR Command, Fort Bragg, NC, Orders 16-315-00006, dated 10 November 2016, honorably discharged the applicant from the USAR, effective 1 January 2017, based on being non-selected (twice) for promotion to the next higher grade (MAJ). k. A college transcript pertaining to a person other than the applicant could not be located in his AMHRR. 7. An Integrated Web System – Total Army Personnel Data Base – Reserve record, printed on 28 December 2016, shows the applicant's branch as "LG." 8. In support of the application, the applicant and his counsel provide the following additional documents. a. A letter from applicant's counsel to the Commander, HRC, dated 1 December 2016, requesting consideration of the applicant's records by an SSB based on the reasons counsel outlined in his petition to this Board. b. An email message from an HRC, SSB action officer to applicant's counsel, dated 13 December 2016, that notified him that his client (the applicant) had been informed that he must go through the appeal process to have an incorrect DA Form 1059 and/or improperly filed transcripts removed from his records. c. Headquarters, 88th Regional Support Command, Fort McCoy, WI memorandum, dated 1 August 2016, subject: Options Upon Non-Selection for Promotion After Second Consideration; Headquarters, 855th Quartermaster Company, South Bend, IN, memorandum, undated, subject: (Applicant's) Election of Options; and his Reserve Status Statement and Election of Options. They show, in pertinent part, officers twice non-selected must be separated no later than the 1st day of the 7th month following the President's approval of the board results; the applicant acknowledged the basis of the letter and that his discharge was mandatory; and he noted that HRC was considering his request for an SSB. d. Three documents (printouts) related to his PSB file that, in pertinent part, show: (1) Non-Select [The entries for the name of the document and dates are not clearly legible]: Name Effective Date Accepted Date DA Form 1059 [FA] 26 June 2007 07 March 2013 Transcripts 06 June 2006 17 June 2013 DA Form 1059 [LG] 30 October 2015 18 November 2015 (2) "My Board File Activity: Marked NOT VIEWED on 12 September 2016." (3) FY16 MAJ, Non-AGR Army Promotion List (APL) Statistics by Branch. 9. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, U.S. Army HRC, Fort Knox, KY, dated 7 February 2017. a. Based on a review of HRC records and the information provided, the advisory official found that the applicant's request for SSB does not have merit. b. He stated that the reason(s) for the applicant's non-selection are unknown because statutory requirements set forth in 10 USC 14104 (Nondisclosure of Reserve Selection Board Proceedings) prevent disclosure of these proceedings to anyone outside the promotion board in question. After announcement of the convene date(s) of any promotion board(s), each candidate had an opportunity to thoroughly review their board file and correspond directly with the President of the board and its members to address any issues which they felt were important during promotion consideration. Failure to do so does not constitute unfairness or a material error. c. The Army Reserve (AR) does not promote based upon branch/functional area for its APL selection boards. Its promotions are based solely on AR strength, therefore, the applicant's assumption that he was not selected for promotion based on his reclassification to a different career occupation is purely speculative on his part. d. The advisory official stated it can only be concluded that the promotion board determined that the applicant's overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected. Therefore, reconsideration by an SSB can only occur as directed by the Army Board for Correction of Military Records. 10. On 13 February 2017, the applicant was provided a copy of the HRC advisory opinion to allow him the opportunity to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. Army Regulation 623-1 (Evaluation Reporting System), in effect at the time of the applicant's attendance at the FA BOLC, prescribes the policies and tasks for the Army's Evaluation Reporting System, including reporting systems for officers and noncommissioned officers, and academic performance and potential. Chapter 3 (Army Evaluation Principles), section V (Academic Evaluation Responsibilities), paragraph 3-18 (DA Form 1059), shows that academic evaluations report the accomplishments, potential, and limitations of individuals while attending courses of instruction or training. One AER will be authorized for each reporting period. The reporting official will be responsible for the accuracy of the information in the completed AER. 2. Army Regulation 600-8-104 (AMHRR Management), paragraph 4-9, provides rules for administering officer pre-board processing. This paragraph provides that officers in the zone of consideration will review and update their Officer Record Brief (ORB); all current, available admissible personal information will be submitted to the AMHRR; and these officers are responsible for maintaining and submitting current information to the PSB. 3. DoDI 1320.11 updates policy, responsibilities, and procedures for the implementation of 10 USC 628 on the use of SSBs for commissioned officers on Military Service active-duty lists (including former commissioned officers previously on active duty) and commissioned warrant officers (chief warrant officers and former warrant officers) on Service warrant officer active-duty lists. Paragraph 3 (Policy) shows that it is DoD policy that: a. each Military Department will use an SSB: * for the reasons listed in sections 628(a) or 14502(a) of Title 10, USC * if the decision of the original board involved a material factual or administrative error * if the board lacked some material information for consideration * in accordance with the procedures in this instruction b. An SSB must not, pursuant to section 628(b) or 14502(b) of Title 10, USC, consider any person who by maintaining reasonably careful records may have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion. c. SSBs that meet pursuant to sections 628 or 14502 of Title 10, USC, must be composed in accordance with: * sections 573, 612, or 14102 of Title 10, USC, as appropriate * regulations prescribed by the Secretary of the Military Department concerned 4. Army Regulation 600-8-29 (Officer Promotions), chapter 7 (SSB), paragraph 7-3 (Cases Not Considered), provides, in part, that an officer will not be considered or reconsidered for promotion by an SSB when the following occurs: an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or AMHRR. (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 AMHRR before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. DISCUSSION: 1. The applicant and his counsel contend, in effect, that the applicant's records should be considered by an SSB for promotion to MAJ/O-4 SSB under the FY15 and the FY16 MAJ Non-AGR APL PSB criteria (respectively) and, if selected, the applicant should be reinstated in the USAR because the applicant's AMHRR contained administrative errors that were due to the fault of Army officials; not the applicant. Specifically, college transcripts of another Solder were incorrectly filed in his record; an erroneous DA Form 1059 was completed on 26 June 2007 and filed in his record, and his branch transfer action was not updated in AMHRR systems. 2. A review of the applicant's AMHRR failed to reveal a copy of a college transcript pertaining to another individual filed in his AMHRR. a. This review did reveal that the applicant was awarded a Bachelor of Science degree on 14 May 2006; he was issued a copy of his transcript on 13 September 2016, and it was filed in his AMHRR on 15 September 2016. b. It is not clear why it took the applicant more than 10 years (after he was awarded his college degree) to provide a copy of his college transcripts to be filled in his AMHRR. c. If it was due to an erroneously filed transcript, it is reasonable to conclude that such an error should have been recognized by the applicant at some point shortly after he was appointed as a commissioned officer (in 2006). Additionally, an entry concerning another individual's college education (program of study and university) would have been easily identified during annual review of his ORB. d. Nonetheless, the evidence of record shows the applicant failed to take any action to correct such error until after he had been twice non-selected for promotion to MAJ. 3. The evidence of record shows the applicant attended FA BOLC Class 004-06 and failed to meet course academic standards. However, there is no evidence of record that shows a DA Form 1059 was completed to document that the applicant failed the course, as required by the governing Army regulation. a. A DA Form 1059 was completed on 26 June 2007 to document that the applicant attended FA BOLC III, Class 003-07, from 7 March 2006 [sic] through 26 June 2007 and "Marginally Achieved Course Standards." (It also shows he was recycled into FA BOLC III Class 003-07 from FA BOLC Class 004-06 for failing to meet course academic standards.) b. On 14 September 2016, a DA Form 1059 was completed to show the applicant attended FA BOLC III, Class 003-07, from 7 March 2007 through 28 June 2007 and "Marginally Achieved Course Standards." (1) The AER makes no reference to attending FA BOLC Class 004-06. (2) The accompanying MFR shows the AER was reissued due to administrative error (i.e., the original AER was annotated incorrectly and the applicant was provided with only one DA Form 1059). c. The evidence of record shows that the applicant should have been issued a DA Form 1059 for his attendance at FA BOLC Class 4-06 when he failed to meet course academic standards. However, a DA Form 1059 was not issued. Despite this error, the Board chooses not to direct correction of his record concerning this matter, at this time. 4. Records show the applicant was appointed in/awarded LG branch/AOC 90A on 2 December 2015. Two OERs (spanning the period 1 June 2015 through 31 December 2016) document his performance as an LG (AOC 90A) officer while serving as Commandeer, 855th Quartermaster Company (Field Service). 5. The governing Army regulation provides that an officer will not be 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 AMHRR. a. There is no evidence of record that shows the applicant expressed his concerns to the promotion board members by submitting a letter to the President of the PSB, prior to the convening date of either the FY15 PSB or the FY16 PSB, regarding the errors identified by the applicant and his counsel to this Board. b. In any event, a copy of the branch transfer memorandum was timely filed in his AMHRR (i.e., on 30 December 2015). In addition, the applicant's two OERs that are filed in his AMHRR show him as an LG officer with ratings for his performance as Commander, 855th Quartermaster Company (Field Service). c. Comparatively, the two OER's provide much more substantive (material) information regarding the applicant's duty performance as an LG branch officer during the period under review than any data entry (i.e., "LG") that may have been in error/missing from the applicant's ORB. d. Based on the available evidence, it is reasonable to conclude that data-entry error/omission related to his branch constituted administrative error that was immaterial. 6. It is noted that the applicant utilized his CAC to digitally sign two OERs (on 14 January 2015 and on 30 October 2015). It is also noted that the applicant failed to view his FY16 "My Board File" prior to the FY16 PSB. However, even if his CAC had expired, he still could have communicated with the president of the FY16 PSB by letter, as is mentioned above. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019625 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160019625 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2