IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20170014453 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: 4 January 2019 DOCKET NUMBER: AR20170014453 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Dockets Number AR20150018166, AR20160008062, and AR20150005474, dated 28 January 2016, 7 June 2016, and 25 August 2016 respectively. Specifically, the applicant requests that: a. His military records be corrected to invalidate his Fiscal Year 2010 (FY10) through FY 2016 (FY16) non-selections for promotion to Lieutenant Colonel (O5), and that his records be submitted before Special Selection Boards (SSBs) using the relevant year's criteria for such further relief as the ABCMR deems just. b. The ABCMR determine that his incorrect Active Date of Rank (ADOR), with its subsequent/recent correction, constitutes a material error. c. His promotion file be updated to reflect his newly corrected ADOR and his file be reconstructed as best as possible to reflect how the file would have looked had his ADOR been correct. d. His DA Form 67-9 (Officer Evaluation Report (OER)) with thru date 20100228 be administratively removed from his Official Military Personnel File (OMPF) and the OER with thru date 20101104 be backdated to cover the gap. 2. The applicant states: a. He is especially concerned with the basis for the Board's denial of his previous ABCMR requests. Those denials have either been based on the Board's application of incorrect facts or the Board's failure to base its decision on the realities of the issues he surfaced, or illogical conclusions based on a combination of both. As such, the Board concluded that being considered in the incorrect promotion selection zones of considerations (1) is not a material reason to convene an SSB, and (2) minimizes the importance of his record of completion of the Judge Advocate Graduate Course (hereinafter "Graduate Course") in a Judge Advocate's promotion file. Since he was deemed "educationally qualified" to be considered by a promotion selection board (PSB), his non-selection could not have been based on the absence of certain Professional Military Education (PME) requirements in his promotion file. b. What he cannot accept is a denial of his request based on incorrect facts. The Board can certainly deny his request but it cannot base that denial on something that he and others know to be absolutely untrue. In other words, the answer should not be that the Board's decision is based on an untrue fact. The question should be whether the Board can grant relief given the accurate facts he is providing. In this situation, it is his duty to request reconsideration. If he has to press the issue beyond the ABCMR, a higher court would mandate the lower court (or Board) reevaluate his issue if it were discovered that incorrect facts had been applied. His request for reconsideration introduces the opinions of current and former senior leaders of the Judge Advocate General Corps (JAGC) to help explain the realities, some of which are based on the nuances of Judge Advocate career management and promotion processes. c. He implores the Board to seek an advisory opinion from Headquarters, Department of the Army, Office of the Judge Advocate General (OTJAG) Personnel, Planning, and Training Office (PP&TO). He understands such opinion was not obtained for his initial request. An opinion from PP&TO can help explain some of the nuances of JAGC career management and promotions that cannot be discerned from an advisory opinion from the U.S. Army Human Resources Command (HRC) Promotions Branch. In fact, in his ADOR change paperwork, the PP&TO remarks that "Due to this major material error, the officer was erroneously boarded for LTC/JAGC, Primary Zone (PZ) during the FY10 "PSS" when he should have been boarded in the PZ in FY11" and "Officer's correct ADOR of 6 May 2006 warrants an SSB for the FY11, LTC JAGC, "PSS" in the Primary Zone." He has requested PP&TO provide an advisory opinion; thus one should be received in due course. d. The letters of support he has provided should be carefully considered. These current and former senior leaders can help bridge the gap between the multitudes of professionals who think his case warrants SSBs versus the Board's perspective, which concluded otherwise. He will gladly appear before the Board to help clarify any issues he has indicated on my DD Form 149 (Application for Correction of Military Records). e. This is not a request where he is contesting the results of promotion boards followed by his demand that he be promoted. Rather, it is an argument that a material error in my record, an incorrect ADOR that was discovered in September 2013, had such material effect on his chances for promotion for his Lieutenant Colonel (LTC) PSBs that promotion reconsideration via SSBs is absolutely necessary. At a minimum and as per "Army Regulation 600-8-9," this equates to either the board making a material error or the existence of material errors in his promotion files, or, as explained throughout this letter, the PSBs did not have material information that is now available since his ADOR was corrected. f. The analysis does not stop at the fact that an incorrect ADOR of 29 November 2005 (later corrected to 6 May 2006) existed in his promotion file through the FY10 – FY13 PSBs, although that should be enough of a material error to convene SSBs. Rather, his request highlights how this incorrect ADOR resulted in the prejudicial effect of him being considered in the incorrect zones of consideration through FY13 and resulted in myriad of cascading effects on his career such that his promotion files would have looked much different had his ADOR been correct. Granted, some of these career effects cannot be reverse engineered at this juncture. Other effects can and should be corrected so that SSB members see, as close as possible, how his promotion file would have appeared had his ADOR been correct. Such issues include how to appropriately document the JAG's waiver of his Graduate Course requirement and how to administratively adjust his OER sequencing so that it would appear as it would have if his ADOR was correct. g. In September 2013, PP&TO discovered they had miscalculated his ADOR when he reentered the Active Component of the JAGC in October 2008. The new ADOR is significant because it shifted his PZ for LTC consideration from FY10 to FY11. Consequently, he was inadvertently and prematurely considered for LTC in the PZ in FY10. h. Incorrect PZ consideration in FY10 he was also considered in the incorrect zones and against the incorrect populations of promotion candidates in the FY11 through FY13 LTC promotion boards. Further, the incorrect ADOR contributed to a myriad of prejudicial effects reflected on his promotion file, such as assignment decisions, professional military education attendance, and evaluation report sequencing, which were all understandably influenced by the assumptions that his ADOR was correct and that he was in the PZ for LTC in FY10. i. On its face, his promotion file reflected an incorrect ADOR. This equates to material error on the face of his promotion file. "PSS" members do take notice of ADORs that are out of sequence with the PZ promotion candidates as well as ADORs that reveal substantially more senior officers than other candidates. A natural prejudice is derived from having a more senior ADOR. My corrected ADOR reflects an entirely different year (2006 vs. 2005). Quite simply, it is noticeably different. Thus, the incorrect ADOR, itself, should trigger an SSB for promotion reconsideration. j. The Board based its denial of his initial request on the contention that PZ and Above the Zone (AZ) promotion files are considered together. While technically correct, this disregards a stark reality of the JAGC (and perhaps, other branches) promotion process. That is, PZ promotion candidates have significant advantage over AZ candidates. Consequently, that is why more emphasis is placed on developing an officer's record before the important PZ consideration. For example, in the FY 2011 JAG LTC PSS, the board that should have been his PZ consideration, 42 out of 55 PZ candidates were selected for promotion. Only 1 out of 44 AZ candidates was selected. It is difficult to argue that there is not a prejudicial effect of being in the AZ population when you should have been PZ. k. The prejudices of non-selection for promotion during a PZ consideration during subsequent AZ considerations are also well accepted by senior leaders in the JAGC who have sat on PSBs. Additionally, he should receive promotion reconsideration based on the misalignment of his zones of consideration for as long as his ADOR was incorrect (through October 2013) because chances of promotion diminishes in each successive AZ consideration. In other words, a first time AZ, while not as likely to get selected for promotion as a PZ candidate, is more likely to get selected than a second time AZ candidate. Thus, he was in the incorrect AZ category for the FY12 and FY13 boards because his ADOR was incorrect through September 2013. While it is true the promotion reconsideration would put him against the same population of PZ and AZ candidates for the FY11 through FY13 PSBs, his file would be viewed through a different lens and thus compared differently against the other candidates based on their current zones of consideration and career paths vis-à-vis each other. l. Upon his reentry into the active component in 2008, it was decided that he would not attend the mandatory Judge Advocate Graduate Course because of his seniority as a Major and because of the critical needs of the Army resulting in his seniority conveniently helping the Army fill one of those critical needs Consequently, TJAG made the rare move of waiving his Graduate Course attendance requirement. This was a mandatory waiver. While he disagreed with action, he had no choice in the matter. m. The significance of not having Graduate Course on his record before "PSS" members cannot be understated. Promotion boards are directed to evaluate the extent of military training outlined in Department of the Army Pamphlet (DA PAM) 600-3. For Judge Advocate Majors, the Graduate Course and Satellite Intermediate Level Education (ILE) are squarely what promotion board members should be looking for. He attended neither due to circumstances outside of his control. The Graduate Course itself, is referred to as the "centerpiece of Junior Officer professional development" (DA PAM 600-3), "critical to your career progression," and "The "flagship" course at The Judge Advocate General's Legal Center and School" (The Judge Advocate General's Legal Center and School Course Catalog, Fiscal Year 2015). Finally, JAG Captains selected for promotion to Major are reminded of the importance of the course via a memo from PP&TO and are instructed to elect to either attend the course or separate from service at the expiration of their current term. Bottom line, if you cannot find it written anywhere that Graduate Course is mandatory for a JAGC Major's promotion to LTC, it is, for all intents and purposes, mandatory. n. This is especially significant because he was most certainly the only candidate for LTC promotion to not have Graduate Course in his promotion file, thereby negatively distinguishing him from other candidates, at best, and allowing promotion board members to draw negative inferences from his not having attended, at worst. o. The incorrect ADOR and his corresponding alignment in incorrect promotion consideration zones directly resulted in him not attending this critical career requirement. The incorrect ADOR and his seniority continued to play a role in his non-attendance when he continued to try to attend the Graduate Course while still practicable. p. Had his ADOR been correct, seniority would have been minimized as an issue and he would have attended Graduate Course. He know this because the JAGC would have had 16 extra months in which to send him. While the ADOR correction was less than 6 months, since it put him in a different year group in terms of PZ promotion consideration alignment, it actually deprived his career managers of 1 year of career and promotion file development. But it was more than just a year that was lost as the FY10's JAG LTC PSB was shifted to April 2010, resulting in a 16-month gap from when he thought his PZ consideration was to when it should have been, in August 2011. q. In reality, the incorrect ADOR deprived his career managers of 16 months to develop his career. They would have had time to send him to the 9-month Graduate Course, the 3-month ILE Satellite Course and still had 4 more months of rated time as a Brigade Combat Team (BCT) Judge Advocate. Bottom-line, the 6-month ADOR shift may seem insignificant, on its face. But given his branch, its educational and career requirements, and the unique considerations surrounding his career, the ADOR error could not have been more critical. r. It may be pointed out that a promotion candidate can highlight an issue, such as accounting for the lack of Graduate Course in his promotion file, via a letter to the president of the promotion board. PP&TO habitually advises against the wisdom of submitting such letters, due to the real or contrived negative attraction it may draw to a promotion file. He heeded that recommendation and did not submit such letters for the FY11, FY13, FY15 and FY16 PSBs. Bottom line, an officer exercising the right not to write a letter to the president of the board should be taken into consideration. This is the advice provided by their career managers. s. For a waiver of such a critical a career requirement, he as the rated officer should not have to shoulder the burden of explaining the matter via a letter to the Board President. This was a U.S. Army decision; thus the annotation should be from a U.S. Army official. A TJAG waiver of the "centerpiece" of the JAGC junior officer educational development is too critical of a career event to be addressed solely with a letter begging indulgence of the president of the board. Hopefully his letters help verify to this Board the background surrounding this waiver. However, he still needs to determine how to appropriately document this waiver in his promotion files. t. With the discovery and correction of his ADOR, the Graduate Course waiver issue has evolved. At first it was his dissatisfaction that the waiver was not officially documented in his promotion file. With the corrected ADOR, he now knows that he would in all probability have attended the Graduate Course, thus obviating the need for letters to the president of the relevant PSBs. Still, the question remains how to document the fact that the Graduate Course is missing from his file. Had his ADOR been correct, he would have attended. u. While not as critical of an issue as the Graduate Course, his incorrect ADOR resulted in PP&TO requiring him to complete ILE via correspondence course. This course is normally a 3-month resident requirement at a satellite location or a 1-year full residency at Fort Leavenworth, Kansas. With no time to send him to ILE, since he was part of an imminently deploying BCT, PP&TO concluded he would complete the correspondence course. Aside from creating the inconvenience to himself and his unit of having to complete the course while deployed to a combat zone in Iraq (and partially during his R&R leave to ensure it was complete prior to the FY 2010 PSB), the incorrect ADOR resulted in a watered down version of ILE being reflected in his Academic Evaluation Report, as not all concepts are evaluated in the correspondence version. Would this material difference in his promotion file be as significant as his not having completed Graduate Course? Probably not. Nonetheless, is this a material effect on his promotion file that overall weakens his promotion file when compared with those who did attend some version of resident ILE? Absolutely. With the corrected ADOR, this was yet another resident PME requirement that he would have attended. v. He resurrects the issue he brought forth in ABCMR Docket Numbers AR20150018166 and AR20160008062 regarding OER sequencing and his request to administratively adjust his OERs because of their reliance on the incorrect ADOR. He originally requested this relief in a separate but concurrent matter so as to have his record corrected once SSBs via the present ABCMR request were convened. Given that he is requesting reconsideration for both matters, he now merges these requests for efficiency and because of their relatedness. w. Further, the reply in ABMCR Docket Number AR20160008062 indicates that, for that OER adjustment issue, he is not eligible for further consideration by this Board. This cannot be procedurally correct, since he used his one-time reconsideration request allocation because of an error made by the Board. The Board considered the incorrect MILPER Message for Promotion (Reserve Component vs. Active Duty). Despite what the Board contended, this error was critical to his request, as the incorrect MILPER message put him in the PZ for FY 2011, making his request pointless. He cannot see how in any application of due process and fairness, the Board would count his alerting the Board of its error as his one chance at reconsideration for the issue. Regardless, this OER issue is so interrelated with his present request that one cannot logically consider the other matters he raises and disregard this one. x. When his chain of command was sequencing his evaluations in reliance of the critical FY10 LTC PZ consideration, they reconfigured his rating chain so that he could get a Change of Rater (COR) OER in advance of the board that would reflect his combat experience. A complete the record OER was not feasible as its MILPER message mandated "thru date" allowed for a negligible reflection of his combat experience as well as resulted in a short (less than 3-months in length) OER. It is important to note that this COR was not mandatory. Rather, his chain of command took advantage of an optional (not mandatory) rating chain configuration authorized by a TJAG memorandum that published guidelines for judge advocates supporting BCTs as a method of generating an OER to reflect as much of his deployed experience as possible. y. Had they known his correct ADOR and that FY10 was not my PZ consideration zone, his rating chain would not have changed his rater in order to generate the OER. There simply would have not been any reason to do so or take any action to produce an OER at that juncture, especially when it resulted in the less than optimal situation of breaking up the 1-year of deployment into two shorter evaluation periods. So, his request is to administratively remove OER (thru date 20100228) and to backdate OER (thru date 20101104) to cover the gap. That is how his OER sequencing would have looked if his chain of command knew his correct ADOR and PZ consideration. This request is supported by the rating chains of both OERs, including the senior rater of both of them. z. Where the Board erred in denying his request for adjustment is that they appeared to presume that because of the COR rating code used, he had a mandatory COR thus requiring a COR OER to be produced. This is simply not true, as acknowledged by his rating chains at the time. The Board appears to be applying a reverse logic to conclude why they used the COR OER. Per Army Regulation 623-3 (Personnel Evaluation – Evaluation Reporting System), a code 03, "Change of Rater" OER, is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and minimum rating qualifications have been met. Thus, the mandatory nature of the report is triggered by a COR, not the other way around. The use of such report is not necessarily indicative of a 'mandatory' change of a rater. In fact, in his situation, there was no mandatory COR. All personnel in both rating chains remained in place before and after the OER. He could have and would have retained a consistent rating scheme throughout the 1-year deployment. This change in his rating scheme was a strategic career management move by his chain of command to best situate him for the critical PZ LTC consideration. He now knows that FY10 was not his consideration. aa. What is most critical about this issue is that the incorrect ADOR and PZ consideration resulted in a visibly different array of OERs in advance of his LTC considerations than the selection boards would have seen. If this is not material enough of a change to warrant "PSS" reconsideration via SSBs, it is difficult to fathom what is. Further, while many of the career effects because of the incorrect ADOR are difficult, if not impossible, to reverse engineer, this is an adjustment that can and should be made. bb. The cascading and direct effects of the incorrect ADOR and promotion zones of consideration on any judge advocates career management, and by extension, his/her promotion file are palpable and difficult to overlook. Every time his inaccurate file was reviewed for promotion and non-selected, when it might have been selected under the correct information, represents another juncture at which the incorrect ADOR had a lasting material effect. cc. The lasting impact of this dynamic is assignment opportunities. Rarely will PP&TO consider a JAG Major for a competitive, career enhancing next assignment when that officer is non-selected in PZ. Additionally, the 16-month reduction in time between his erroneous PZ LTC consideration and the correct one resulted in fewer opportunities for schooling as well as less opportunities and time for further career development time and OERs in my record. dd. While he commented earlier that this is not a challenge to the PSB's actual determinations that resulted in his non-selections, he offers the promotion analyses to highlight the fact that his promotion file does possess many of the traits of JAGC officers who have recently been selected for LTC. Since his file must have been competitive, the small margin of error demands that he pay particular attention to the anomalies of his file that were a direct result of his incorrect ADOR. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Table of Contents * Army Regulation 600-8-29 (page 23), dated 25 February 2005 * Appointment Approval Memorandum for Commander, HRC, dated 29 August 2005 * Army Reserve Commissioned Officer Appointment Memorandum, dated 21 November 2005 * DA Form 71 (Oath of Office – Military Personnel), dated 29 November 2005 * DD Form 214, (Certificate of Release or Discharge from Active Duty), dated 8 April 2006 * DD Form 214 dated 23 November 2006 * DD Form 214, dated 13 April 2008 * DD Form 214, dated 9 October 2008 * AHRC-OPD-RD Orders A-10-821442, dated 24 October 2008 (two copies) * U.S. Army HRC Promotion Order Number 064-002, dated 5 March 2009 * One page of MILPER Message Number 10-033 (FY10 Lieutenant Colonel, Judge Advocate General's Corps (JA) Promotion Board Zone of Consideration), issued 25 January 2010 * One page of MILPER Message Number 10-035 (Amended Zones of Consideration for the FY10 Lieutenant Colonel Judge Advocate General's Corps Promotion Board), issued 27 January 2010 * Pages of MILPER Message Number 11-150 (FY11 Lieutenant Colonel, Judge Advocate General's Corps Zones of Consideration), issued 17 May 2011 * Pages of MILPER Message Number 12-150 (FY12 Lieutenant Colonel, Judge Advocate General's Corps Zones of Consideration), issued 16 May 2012 * Chronological Statement of Retirement Points, dated 25 September 2013 * DA Form 4037 (Officer Record Brief), dated 26 September 2013 * TAPC-MS Form 75 (Promotion Consideration), dated 26 September 2013 * Computation of Date of Rank, dated 26 September 2013 * U.S. Army HRC Amendment Order Number 280-001, dated 7 October 2013 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * ABCMR Record of Proceedings Docket Number AR20150018166, dated 28 January 2016 * ABCMR Record of Proceedings Docket Number AR20160008062, dated 7 June 2016 * ABCMR Record of Proceedings Docket Number AR20150005474, dated 25 August 2016 REFERENCES: 1. Title 10, U.S. Code, section 618(f) (Actions on reports of selection boards) states except as authorized or required by this section, proceedings of a selection board convened under section 611(a) of this title may not be disclosed to any person not a member of the board. 2. Army Regulation 600-8-29 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. It states: a. Promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer’s ADOR and time in grade. Promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports. Promotions to the grade of MAJ and above must be confirmed by the Senate in accordance with Title 10, U.S. Code, section 624c. b. The Secretary of the Army will provide guidance and instructions in an Memorandum of Instruction (MOI) to the board. The Secretary or his or her designee may modify, withdraw, or supplement the MOI before the board adjourns; however, once the board has convened, the maximum number of officers to be selected may not be increased without the written permission of the Office of the Secretary of Defense. c. Promotion selection boards will (1) base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI; and (2) keep confidential their reasons for recommending or not recommending any officer considered. For commissioned officers, one of the following methods of selection is used, as directed by the MOI: (1) The "Fully Qualified" method, when the maximum number of officers to be selected, as established by the Secretary, equals the number of officers above, in, and below the promotion zone. Although the law requires that officers recommended for promotion be "Best Qualified" for promotion when the number to be recommended equals the number to be considered, an officer who is fully qualified for promotion is also best qualified for promotion. Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade. The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill. (2) The "Best Qualified" method, when the board must recommend fewer than the total number of officers to be considered for promotion. However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion. As specified in the MOI for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion. d. SSBs are convened to consider commissioned officers for promotion when Headquarters Department of the Army (HQDA) discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information. Material error in this context 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, a reasonable chance would have resulted that the individual would have been recommended for promotion. e. Failure to be selected for promotion from below the zone of consideration will neither count as a non-selection for promotion nor reflect unfavorably on an officer. 3. Army Regulation 623-3, in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks. a. Chapter 3 (Army Evaluation Principles), paragraph 3-2 (Evaluation requirements), shows that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, an evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army selection boards and career managers can make intelligent decisions. Paragraph 3-40, in pertinent part, shows that a change of rater report is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and minimum rater qualifications have been met. b. Chapter 6 (Evaluation Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report "THRU" date. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that (1) the presumption of regularity should not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the ABCMR. 4. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The authorized documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-9 will be filed in the performance folder of the OMPF. 5. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. DISCUSSION: 1. Incorporated herein by reference are military records that were summarized in the previous considerations of the applicant's cases by the ABCMR in Docket Numbers AR20150018166, AR20160008062, and AR20150005474, dated 28 January 2016, 7 June 2016, and 25 August 2016 respectively. 2. With prior service as a member of the Regular Army (RA) and U.S. Army Reserve, the applicant was ordered to active duty effective 30 October 2008, as a RA commissioned officer in the rank of major. His active duty orders established his DOR as 17 July 2003. 3. Orders 064-002, issued by HRC, Fort Knox, KY on 5 March 2009, established his ADOR as 29 November 2005. 4. A review of the two contested OERs shows, in pertinent part, the following: a. Contested OER-1: change of rater report (code "03") for the period 13 October 2009 through 28 February 2010 (5 rated months and no nonrated codes) for duties performed as Brigade Judge Advocate, Headquarters and Headquarters Company (HHC), 1st Heavy Brigade Combat Team (HBCT), 1st Armored Division (1AD), Forward Operating Base Warrior, Iraq: * Part II (Authentication), all electronically signed on 8 March 2010 by – * block a (Rater): LTC Charles J. S___, Executive Officer * block b (Intermediate Rater): COL Jonathan C. G___, Staff Judge Advocate (SJA) * block c (Senior Rater): COL Larry S__, Brigade Commander * block e (Signature of Rated Officer): the applicant * Part V (Performance and Potential Evaluation – Rater), block a (Evaluate the rated officer's performance during the rating period and his/her potential for promotion), an "X" indicating "Outstanding Performance, Must Promote" * Part VII (Senior Rater), block a (Evaluate the rated officer's promotion potential to the next higher grade), an "X" indicating "Best Qualified" b. Contested OER-2: change of rater report (code "03") for the period 10 March 2010 through 4 November 2010 (8 rated months and no nonrated codes) for duties performed as Brigade Judge Advocate, HHC, 1st HBCT, 1AD, Contingency Operating Station Warrior, Iraq: * Part II – * block a: COL Jonathan C. G___, SJA * block c: COL Larry S__, Brigade Commander * block e: the applicant's signature * Part V, block a, an "X" indicating "Outstanding Performance, Must Promote" * Part VII, block a, an "X" indicating "Best Qualified" c. Orders 280-001, issued by HRC, Fort Knox, KY on 7 October 2013, amended his ADOR to 6 May 2006. 5. The applicant is serving on active duty in the rank of MAJ, on a 3-year selective continuation tour based on his non-selection for promotion to LTC. 6. On 28 January 2016, the ABCMR denied the applicant's request for removal from his OMPF of the OER covering the period 13 October 2009 through 28 February 2010, and adjustment of the date of his OER for the period 10 March 2010 through 4 November 2010. 7. The applicant requested reconsideration of his appeal to the ABCMR and his request was reconsidered and denied again on 7 June 2016. 8. On 25 August 2016, the ABCMR denied the applicant's request to invalidate his FY10 through FY14 non-selections for promotion to LTC and to submit his records before an SSB for consideration under each respective year's criteria. 9. While the applicant provides new arguments in his requests for reconsideration, he provides no new evidence that was not available in his previous appeals to the ABCMR. 10. During the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions Branch, HRC, who opined that based on a review of their records and the information provided, the applicant's request for an SSB is without merit. He states: a. Promotion board members vote the records of PZ and AZ eligible candidates' together, there are no separate select objectives for these groupings. The applicant was considered as fully eligible; however, he was not selected. A review of the Army Selection Board System indicates the applicant viewed and certified his FY11 promotion board file before the convene date of the regularly scheduled selection board on 7 August 2011. b. All PSB announcements allows for a considerable amount of time for every officer to review and update their 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, such as completion of Judge Advocate Graduate Courses (not a requirement for promotion selection). His failure to do so does not constitute material unfairness or a material error that qualifies for reconsideration of promotion by an SSB by regulation, policy or law. c. The reasons for the applicant's non-selection for promotion are unknown because statutory requirements set forth in Title 10, USC, 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 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 merit of an officer's overall record when compared to the records of other officers being considered. d. Reconsideration of promotion by an SSB can only occur as a directive by the ABCMR. 11. A copy of the advisory opinion was provided to the applicant for his information and/or possible rebuttal. He did not respond. 12. According to the applicable regulation, the DA Form 67-9 will be filed in the performance folder of the OMPF. Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 13. SSBs are convened to consider commissioned officers for promotion when HQDA discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information. Material error in this context 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, a reasonable chance would have resulted that the individual would have been recommended for promotion. 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 to amend the decisions of the ABCMR set forth in Dockets Number AR20150018166, AR20160008062, and AR20150005474; dated 28 January 2016, 7 June 2016, and 25 August 2016 respectively. 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) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170014453 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2