ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20170002422 APPLICANT REQUESTS: * Special Selection Board (SSB) reconsideration for promotion to Major (MAJ)/O-4 * his latest Officer Evaluation Report be added to his SSB file APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) online application * memorandum of recommendation from the Command Chaplain of the Kansas Army National Guard (KSARNG) * memorandum from applicant requesting an SSB * memorandum from applicant justifying his request for an SSB * memorandum requesting favorable consideration for an SSB signed by the Director of Personnel * applicant's Officer Record Brief (ORB) FACTS: 1. The applicant states: * he requests favorable consideration for a SSB due to a material error within his board file * there was an erroneous Civil Conviction Waiver memo dated 3 June 2013 which was part of his board file * during the process of him accessing as an Army Chaplain with the KSARNG, he self-reported a previous arrest which occurred following his graduation from high school * he was arrested on 21 May 1995 for trespassing and minor in possession of alcohol * he submitted a plea of no contest in court and paid a $250.00 fine * he self-reported the incident during the accession process because there are no records of the incident * the KSARNG submitted a request for a moral waiver to National Guard Bureau (NGB) as part of his accession process * the memo waiver was returned without action due to there being no record of conviction * the memorandum from NGB indicating no requirement for a waiver was erroneously added to his service record * he believes the appearance of the memo was cause for his non-selection to MAJ * he also requests his latest OER be added to his SSB file * it was not available for the board to review when he was considered for promotion * prior to the promotion board, he made multiple attempts to have the evaluation completed in time for board inclusion * it was delayed at the rater and senior rater levels * because this delay was outside of his control, he requests it be included in his file * he believes there is significant error in his promotion board file * the applicant provides a memo from the KSARNG G1 * the state of Kansas admits a civil conviction waiver was erroneously placed in his service records * the document is a material error of no fault of the applicant's * the error had a negative impact on his board file * the G1 requests favorable consideration of the request * the G1 reviewed his file and determined the non-selection was likely based on an erroneous memo in his service record * the KSARNG erroneously put a memorandum which appears to be a civil conviction waiver in his service record * due to the error, the KSARNG believes a material error existed in the applicant's file at the time of his board * the memo has since been removed from the applicant's file * the personnel records fully support the applicant's and command's request for an SSB 2. The applicant provides: a. A memorandum through NGB to US Army Human Resources Command (HRC), dated 7 November 2016, signed by the Command Chaplain in reference to the applicant's promotion board. The memorandum states: * the applicant's continued service in the KSARNG Chaplain Corps is indispensable * he fully supports reconsideration of the applicant's promotion to MAJ * the applicant joined the KSARNG in 2013 * he had prior service as an Infantry Officer * his date of rank for the MAJ Chaplain Corps Promotion Selection Board should have been recalculated from his accession date as a chaplain and not his original promotion date as an Infantry Officer while on active duty * the applicant is vital to the organization and the KSARNG Chaplain Corps was short of personnel * the Chaplain Corps was at 60 percent strength and needed strong supervisory chaplains like the applicant * the applicant filled a critical shortage in the force where chaplains conduct suicide prevention training, Strong Bond events for relationship resiliency, pastoral counseling, and deployment cycle support for mobilizations * the applicant is a strategic choice to remain in the Chaplain Corps * he was an excellent chaplain and an outstanding officer with deployment experience * he had the necessary skill set to train and prepare future Army chaplains beyond 2017 b. A self-authored memorandum through NGB to HRC, dated 8 November 2016 in reference to his Promotion Selection Board. The memorandum states: * he requested reconsideration of promotion under the same criteria and instructions of the board for fiscal year (FY) 2016 * he understood the provisions of not allowing reconsideration * he understood he was afforded the opportunity to submit documents to his board file to correspond to the president of the board of possible administrative deficiencies in his record * he understood he could bring special attention to matters he considered important * he understood failure to communicate these discrepancies to the president did not constitute material unfairness or material error * he understood documents received outside the established limits per the message were not considered cause for reconsideration and would not be approved * he enclosed supporting documents and a time line of events which supported his diligent effort to correct the error of his promotion board file prior to the established date of the board message c. A self-authored memorandum through NGB to HRC, dated 8 November 2015 in reference to his Promotion Selection Board. The memorandum states: * he requested favorable consideration of an SSB due to material error with his board file * the request was based on an erroneous Civil Conviction Waiver memo dated 3 June 2013 which was part of his file * when he was accessed into the KSARNG, he self-reported an arrest that occurred after his graduation from high school * he had been arrested for trespassing and minor possession of alcohol on 21 May 1995 * he pleaded no contest and paid a $250 fine * he self-reported the incident because there are no records of it * the KSARNG submitted a request for a moral waiver to NGB * the waiver was returned with no action because there was not a conviction * the memorandum from NGB was erroneously added to his service record as a civil conviction waiver and was present in his board file * the applicant requested the memorandum be removed from his file but believed the appearance of the memorandum in his file was cause for his non-selection * he also requested his latest evaluation be included in his board file * the evaluation was not available for board review * he made multiple attempts to have the evaluation completed in time for board inclusion * it was delayed at the rater and senior rater levels * because the delay was outside his control, he requested it be included in his file * he also requested an updated ORB be included in his board file * he attempted to update his assignments as part of his records validation * he was informed the update was not possible before the board * he believed there were significant errors in his promotion board profile and requested corrections as part of a SSB * the applicant included a timeline of events which states: * 31 December 2015 - promotion board announcement published * 23 February 2016 - contacted rater via email requesting completion of his OER * 4 March 2016 - requested updated ORB * 18 April 2016 - validated board profile despite discrepancies * 16 August 2016 - notification of promotion status * 26 August 2016 - signed OER that should have been in his board file * 6 September 2016 - requested board profile from HRC * 2 December 2016 - KSARNG removed erroneous civil conviction waiver from file * 7 December 2016 - completed request for SSB d. A memorandum through NGB to HRC from the Director of Personnel, KSARNG, dated 5 December 2016. The memorandum states: * the KSARNG requested favorable consideration for the applicant's request for a SSB * the applicant was a Chaplain in the KSARNG * he was non-selected for promotion for a second time * after review of the applicant's file, it was determined that non-selection was likely based on an erroneous memorandum in his file * the applicant was assessed in the KSARNG following his graduation from seminary in 2013 * he had prior service as an Infantry Officer * the applicant self-reported an arrest following his graduation from high school * the waiver packet was submitted to NGB but returned without action * the KSARNG erroneously placed the document in the applicant's records and it appears to be a civil conviction waiver * due to this error, the KSARNG believed a material error existed in the applicant's file at the time of the board * the memorandum had been removed from the applicant's file * the personnel records fully support the applicant and command's request for an SSB e. An updated ORB of the applicant showing his duty as an infantry officer and chaplain. 3. The applicant's service records contain the following documents: * an NGB Form 22 (Report of Separation and Record of Service) showing he was previously enlisted in the KSARNG and discharged to accept appointment as a Commissioned Officer * OER from 10 January 2015 to 9 January 2016 signed on 26 August 2016, which states “one of the best military Chaplains assigned to the 2-137 CAB (IN) in almost a decade…his senior rater rated him as highly qualified and comments how the applicant is the “best Battalion Chaplain within the Brigade, his future is unlimited. Promote now and place in positions of greater responsibility” * a memorandum from Headquarters, KSARNG, dated 16 August 2016, referencing the applicant's promotion status, which states: * this is the applicant's second non-selection to MAJ * he will be separated from the KSARNG unless he has a remaining service obligation or can be credited with 18 or more but less than 20 years of service for retired pay * his entry basic date was 16 May 1999 * he must be separated not later than 1 March 2017 * Department of Army boards do not release the reasons for selection or non- selection * an NGB Form 22 showing he was discharged as a commissioned officer from the KSARNG effective 28 February 2017 for failing to be selected for promotion after the second consideration * a DA Form 4/1 and 4/2 (Enlistment/Reenlistment Document Armed Forces of the United States) showing he enlisted in the ARNG effective 1 March 2017 as a Sergeant 4. See REFERENCES below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted in this case. 2. The Board agreed that the erroneous presence in his record of a memorandum that referenced a civil conviction waiver constitutes a basis for consideration by an SSB. 3. Regarding the OER for the period ending 9 January 2016 that was signed on 26 August 2016, the Board did not find that the absence of the OER from his promotion board file constituted an error warranting relief. The Board noted there is no evidence indicating the reasons for the delay in signing the OER in question. In the absence of such evidence, the Board agreed that there is no basis for recommending that this OER be included in the file reviewed by the SSB. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his record to a Special Selection Board for consideration under the criteria for the Fiscal Year 2016, Major, Chaplain Corps, Department of the Army Mandatory Selection Board. 2. 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 including the applicant's Officer Evaluation Report for the period ending 9 January 2016 in his promotion board file. 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. Mandatory selection boards will convene each year. These boards will consider ARNGUS and USAR officers on the RASL for promotion to CPT through LTC. These boards will consider officers for promotion without regard to vacancies in the next higher grade. The Commander, HRC, Office of Promotions may find that a “material error” caused the nonselection of an officer by a promotion board. That agency must first determine that there is a fair risk that one or more of the following circumstances was responsible: * the record erroneously reflected that an officer was ineligible for selection for educational or other reasons. In fact, the officer was eligible for selection when the records were submitted to the original board for consideration * one or more of the evaluation reports seen by the board were later deleted from an officer’s personnel record * one or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer’s personnel record * one or more existing evaluation reports as seen by the board in an officer’s personnel record were later modified * another person’s adverse document had been filed in an officer’s personnel record and was seen by the board * an adverse document, required to be removed from an officer’s personnel record as of the convening date of the board, was seen by the board * a Silver Star or higher award was missing from an officer’s record * an officer’s military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer’s record (as seen by the board) was incorrect 2. The Commander, HRC, Office of Promotions will normally not determine that a “material error” existed under the following conditions: * the officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses. If eligible, this person will be considered by the next regularly scheduled selection board. A special board will not be used * an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error or omission in the personnel record. Also, the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and providing any relevant documentation that they had * letters or memorandums of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s personnel record * the board did not consider correspondence to the board president that was delivered to the Office of Promotions after the cutoff date for such correspondence established in the promotion board zone of consideration message 3. Army Regulation 600-8-29 (Officer Promotions) states SSBs may be convened under Title 10 U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error. An SSB will consider the record of the officer as it should have been considered by the original board. a. An SSB will be convened under Title 10 U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non- consideration or material administrative error. b. Material error is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered for promotion, a reasonable chance would have resulted that the individual would have been recommended for promotion. c. An SSB will consider the record of the officer as it should have been considered by the original board. The record will be compared with a sampling of those officers of the same competitive category who were recommended and not recommended for promotion by the original selection board. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002422 7 1