ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180013878 APPLICANT REQUESTS: * stand by promotion board for Colonel (COL/O6) to review his last two OERs as Battalion Commander * to be promoted to COL and have his Mandatory Retirement Date (MRD) extended by two years to allow him to continue to serve his country APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Request to the Army Review Board Agency (ARBA) * DA Form 67-9 (Officer Evaluation Report (OER)) x 2 * DA Form 2B (Personnel Qualification Records) * Senior Transportation Officer Qualification Course * RC Legal Assistance Service Request Form * Request Pertaining to Military Records * DA Form 2823 (Sworn Statement) * Department of Army (DA) Photo * Congressional Letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. he asks the Army Review Board Agency (ARBA) to convene a stand by promotion board for Colonel (COL/O6) to review his last two OERs as Battalion Commander, the last OER was a top block. He states no promotion board for Colonel was ever given the opportunity to review these two. He asks to be promoted to COL and have his MRD extended by two years to allow him to continue to serve his country. b. As Battalion Commander of the 362nd, he was not afforded due process in an unjust and improperly conducted 15-6 investigation. It is important for the Board to know that no adverse action was ever taken against him. After the board reviews the finding and recommendations of the 15-6 investigation, he asks the board to officially rule in his favor. In his 15-6 statement, he acknowledged mistakes and he made the proper corrections before the 15-6 was initiated. He served in a toxic command environment that resulted in BG X being relieved of his command for a toxic command climate and he was forced to retire. He requests the Board acknowledge his accomplishments as Battalion Commander of the 362nd QM BN. c. The Reserve Colonel Promotion Board was never given the opportunity to see his complete record. He states his last two OERs as a Battalion Commander have never been included in his records that.went to the promotion board. He called Officer Personnel for a final check of his records the week before the 2015 Reserve Colonel Promotion Board was scheduled to convene. He was informed by the Officer Personnel his file would not be considered because his mandatory retirement date was too close to the Board convening date. d. He was never afforded any due process in the toxic command environment that he served. The proper military procedures for conducting 15-6 were not followed. No adverse action was ever taken against him and he asks the Board to rule in his favor and acknowledge his accomplishments as BC. 3. The applicant provides the following documents to support his request: * Request to the Army Review Board Agency (ARBA) – shows the applicant had a successful career until 2013 when a 15-6 Investigation was done on him; he was not afforded due process and the 15-6 investigation was unjust and done improperly * 2 x DA Form 67-9 (Officer Evaluation Report (OER)) as Battalion Commander which shows his performance was outstanding and his promotion potential was among the best qualified: * OER from 21 February 2012 to 21 May 2013 shows he was a Commander of a Quartermaster Battalion (Petroleum Supply), was rated Outstanding Performance, must promote to Colonel, Best Qualified of 25 officers, and potential compared with officers senior rated in same grade- Center of Mass * OER from 24 June 2013 to 4 January 2014 shows he was a Battalion Commander, was rated Outstanding Performance, must promote to Colonel now, Best Qualified of 10 officers, and potential compared with officers senior rated in same grade- Above Center of Mass * DA Form 2B (Personnel Qualification Records) – date of eligible promotion 15 March 2012, promotion code shows he was considered but not selected * Senior Transportation Officer Qualification Course – dated 7 January 2012 is a completed certificate as recommended to command Transportation Battalion * RC Legal Assistance Service Request Form – requests legal assistance as recommended during 15-6 Investigation * Request Pertaining to Military Records – requests 15-6 Investigation report and results * DA Form 2823 (Sworn Statement) – shows an informal deposition was done on a soldier under the command of the applicant, the memorandum for record for the disposition was brief in an attempt to justify actions against the applicant * Congressional Letter –the applicant contacted a member of congress to assist in his request 4. A review of the applicant’s records show * 20 June 1986 – he commissioned in the Alabama Army National Guard (ALARNG) * 26 July 1989 – he was promoted to First Lieutenant (1LT) * 9 February 1994 – he was promoted to Captain (CPT) * 25 July 2001 – he was promoted to Major (MAJ) * 5 April 2005 – he received his Notification of Eligibility for Retired Pay at age 60 * 16 March 2007 – he was promoted to Lieutenant Colonel (LTC) * 22 December 2008 – he elected to remain a member of Individual Ready Reserve (IRR) * 6 March 2009 – he was ordered to active duty * 22 March 2012 – he was released from active duty. His DD Form 214 shows that the applicant had a total of 28 years, 11 months and 23 days of combined active and inactive service * 19 December 2012 – notification of non-selection for promotion memo shows the applicant was considered but was not selected for the COL promotion board * 18 March 2013 – memo from the Chief of Boards Branch from Headquarters 81st Regional Support Command, states the applicant was evaluated on his ability to perform the physical requirements of his Military Occupational Specialty (MOS) and the MOS Administrative Retention Review Panel determined the applicant was fit to perform his duties in accordance with his area of concentration in a worldwide field environment in accordance with AR 600-60 * 10 March 2014- applicant’s OER was signed by his senior rater for the period 24 June 2013 to 4 January 2014 * 16 April 2014 – Notification of non-selection for Promotion memo shows he was considered for the COL promotion board but was not selected * 8 June 2014- applicant’s OER was signed by his senior rater for the period 21 February 2012 to 21 May 2013 5. An advisory opinion was received by ARBA from the U.S. Army Human Resources Command (HRC), dated 22 May 2019, showing after a review of the applicant’s records and information provided, he does have merit. His OERs were not considered but should have been processed into his records for the Fiscal Year 2014 (FY14) Reserve Component (RC), Colonel (COL), Army Promotion List (APL) promotion board. HRC states had the OERs been processed into the record prior to the promotion board, it stands to reason the evaluations may have increased the applicant’s chance for promotion selection by the FY14, RC, APL. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He provided a rebuttal stating he completely agrees with the findings from HRC and requests ARBA accepts the advisory opinion. He requests the Army Board for Correction of Military Records convene a stand by promotion board for colonel to review his records with his last two OERs as a battalion commander. 7. Army Regulation 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 for SSBs. a. 7-1 (Overview) states that Special selection boards (SSBs) are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. b. Paragraph 7-2 states that SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). c. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs. (1) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board. (2) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or OMPF. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11 states officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. 8. 10 U.S. Code, Section 633 mandates retirement for O5s not on a promotion list to O6 after 28 years of active commissioned service. 9. 10 U.S. Code, Section 634 mandates retirement for O6s not on a promotion list to O7 after 30 years of active commissioned service. BOARD DISCUSSION: After reviewing the application and all supporting documents, including the HRC advisory opinion and the applicant’s two battalion command OERs, the Board determined there is sufficient evidence to grant partial relief. 1. Regarding the applicant’s request for a Special Selection Board to consider him for promotion to COL/O-6, the Board found sufficient evidence to grant relief. The Board found that the applicant experienced an injustice when the FY14 Colonel Selection Board that considered the applicant for promotion did not have before it some material information. The Board agreed with the HRC advisory opinion that the 2014 promotion board did not have the applicant’s two battalion command OERs, which would have likely increased the applicant’s chances of being selected for promotion to colonel. 2. Regarding the applicant’s request for ABCMR to promote him to the rank of Colonel, the Board found insufficient evidence to grant relief. The decision to promote the applicant rests with and the Board defers this decision to a Special Selection Board, who are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. 3. Regarding the applicant’s request for an extension for his mandatory retirement date, the board found sufficient evidence to grant relief. The applicant faced an injustice when his OERs were not considered by the 2014 Army Reserve Components Mandatory Selection Board. Therefore, the ABCMR found sufficient evidence to grant relief and extend the applicant’s mandatory retirement date to allow the applicant to be considered by an SSB and, if selected for promotion to colonel, to serve the required service obligation associated with promotion to that grade. 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: a. Convening a Special Selection Board (SSB) to consider the applicant for promotion IAW the 2014 Army Reserve Components Mandatory Selection Board instructions; b. if selected for promotion to colonel, extend the applicant’s mandatory retirement date to allow the applicant to serve the required service obligation associated with promotion to that grade. 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 immediate promotion to Colonel. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 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 for SSBs. a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs. (1) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board. (2) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or OMPF. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11 states officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration.