ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2020 DOCKET NUMBER: AR20180016270 APPLICANT REQUESTS: Special Selection Board (SSB) reconsideration for promotion to Major (MAJ)/O-4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Record: Request for SSB reconsideration * Email Communication from the Human Resources Command (HRC) * College Transcripts * MILPER Message # 17-357 (Reserve Component (RC) Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR), Major (MAJ) Judge Advocate General Corps Competitive Categories, Promotion Selection) * FY2018 Army Reserve Judge Advocate Promotion List * Memorandum for Record: Promotion List for FY 2017 * Memorandum for Record: instructions for FY 2018 MAJ Promotion Selection Board * Officer Record Brief (2) * DA Form 67-10-1 (Officer Evaluation Report – Company Grade) FACTS: 1. The applicant states that his records contained an administrative and material error when presented to the MAJ promotion selection board. He also contests that there was an officer considered and selected by this board that may have not been on the Reserve Active Status List (RASL) during the one year period ending on the date of the promotion board in direct violation of Title 10 USC 14301(a). The applicant feels that based on his experience, and date of rank making him the most Senior Officer eligible for promotion, he was the most qualified candidate for promotion; however, he was not selected because of his race and national origin. 2. The applicant provides: * Memorandum for Record: Request for SSB reconsideration dated 18 September 2018 – reflective of the applicant’s contention for nonselection and further justification for reconsideration based on material errors within his records, ineligible officer selection and unlawful discrimination. The applicant alleges: (1) that the illegible document (fuzzy duplicate transcripts) within his board record made it appear that he was intentionally hiding something from the board; he states the certification of his board file applied to the documents being his, not the clarity of the documents themselves. A document filed in poor quality is the fault of HRC and because of this, he should be afforded a SSB, this time without the illegible duplicate transcript being left in his file. (2) in contention of the officer erroneously being considered and selected ahead of the applicant, he offers that , the officer selected, had a date of rank not in the primary zone with a date of rank 20101123 (above the zone), and he was not on the previous year’s list since 100% of the AGR officers were promoted to MAJ. Since he was not on the RASL or the MILPER message provided, this is in violation of 10 USC 14301 (a) (2), and he competed against someone he should have not competed against. (3) in contention of the perceived unlawful discrimination, since he was the only black and Haitian officer on the list, he offers that all of the selected officers were either Caucasian or Asian despite him being the most qualified. He had all the qualifications required for MAJ. He believed of the seven officer for consideration, he had been the only one awarded a Bronze Star Medal. He was also listed the senior officer on that promotion list. He states it takes a score of 3 or more to be “fully qualified,” and a board member gave him a score of “2” which is simply racist and the board member did so with the belief that someone his race and national origin should not be promoted. In addition, several years have passed since the last time a black AGR JA CAPT was promoted to MAJ and board members dismissed minor flaws of others while highlighting his because of his national origin. The applicant states there was a seventh slot available for promotion and the Army decided to not fill that position, rather than promote a Black Haitian to MAJOR in the AGR program. He references in the Supreme Court case in McDonnell Douglas Corp v Green, 411 US 792 (1973) to show where the burden shifts to the Army to produce legitimate reason for his non- selection if the employee falls within a protected class, was qualified for the job, and suffered an adverse employment action. * Email Communication from the Human Resources Command (HRC) dated 26 October 2018 - reflective of their denial to his request for an SSB because he failed to show material evidence that an error existed in his board file. HRC further provided that the applicant viewed and certified his board file on 8 February 2018 and that it can only be concluded that the previous promotion board determined that the applicant’s overall record, when compared with the records of other eligible officers in the zones of consideration, did not reflect as high a potential as those selected for promotion * College Transcript – that is illegible but appears to provide a chronological history of courses taken, and a law degree conferred * MILPER Message # 17-357 (Reserve Component (RC) Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR), Major (MAJ) Judge Advocate General Corps Competitive Categories, Promotion Selection) dated 14 November 2017 – reflective of the promotion consideration criteria for MAJ in FY18 * FY2018 Army Reserve Judge Advocate Promotion List – reflective of the Judge Advocate officers selected for promotion to MAJ * Memorandum for Record: Promotion List for FY 2017 dated 10 July 2017 – reflective of the Judge Advocate General officers selected for promotion to MAJ in FY 17 * Memorandum for Record: Instructions for FY 2018 MAJ Promotion Selection Board dated 5 March 2018 – reflective of the information provided to the board members as it pertains to the conduct of the board and points of reference to be utilized when selecting the best qualified officers for promotion. The maximum number of AGR officers to be selected was 7 * Officer Record Brief dated 23 February 2018 and 30 October 2018 – reflective of the applicant’s personnel information made available to the promotion board * DA Form 67-10-1 (Officer Evaluation Report – Company Grade) covering the period of 15 July 2017 through 14 July 2018 – reflective of the applicant’s performance assessment during this period. 3. A review of the applicant’s service records reflects the following on: * 9 April 1987 – he enlisted in the Army Reserve as an enlisted Soldier * 14 July 1987 – he was ordered to active duty * 19 March 1988 – he was released from active duty * 25 February 2009 – he was discharged from the Army Reserve to accept a commission effective 18 February 2008 * 19 February 2009 – he was commissioned as a Second Lieutenant in the Army Reserve * 11 February 2010 – he was appointed as a First Lieutenant in the Army Reserve * 30 December 2011 (Order# B-12-108549) – he was promoted to the rank of CPT effective 1 November 2011 * 13 November 2014 (Order# R-11-493646) – he was assessed into the AGR program effective 2 March 2015 as a CPT 4. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. See additional REFERENCES below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request for reconsideration for promotion to the rank of major by a special selection board (SSB). After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 2. The applicant was non-selected for promotion to major by the Reserve Component (RC) Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR), Major (MAJ) Judge Advocate General Corps Competitive Categories, Promotion Selection Board for Fiscal Year 2018. 3. The applicant contends that the reasons for his non-selection for promotion were: a. that his records contained an administrative and material error when presented to the MAJ promotion selection board, in that his college transcript was blurry; b. that there was an officer considered and selected by this board that may have not been on the Reserve Active Status List (RASL) during the one year period ending on the date of the promotion board in direct violation of Title 10 USC 14301(a); and c. that his experience, and date of rank made him the most Senior Officer eligible for promotion, the most qualified candidate for promotion, but he was not selected because of his race and national origin. 4. The reasons for his non-selection for promotion to major are unknown because statutory requirements prevent the disclosure of board proceedings to anyone outside the promotion board members in question. However, AR 135-155 details the circumstances that may constitute a material error. a. The applicant states that he was disadvantaged by a blurry copy of his civilian education transcript. Regulations do provide that a material error may be signified if the record erroneously reflected that an officer was ineligible for selection for educational or other reasons when, in fact, the officer met the education eligibility criteria. In the applicant’s case, the Board found that the blurry transcript did not constitute a material error for two reasons. First, because the applicant’s educational eligibility was noted elsewhere in his record, which was accessible to the promotion board. Second, because there is insufficient evidence that this was one of the required eligibility criteria for selection to major as it was not listed as an eligibility criteria in the instructions to the promotion board. b. The applicant states that an officer was considered and selected by the promotion board that may have not been on the Reserve Active Status List (RASL) during the one year period ending on the date of the promotion board in direct violation of Title 10 USC 14301(a), but the Board found insufficient evident that this was the case. While regulation specifies that to be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) (or a combination of both lists) during the 1– year period ending on the convening date of the promotion selection board, the record is void of and the applicant did not provide evidence that an officer who was considered and selected did not meet this requirement. c. The Board carefully considered the applicant’s assertion that he was the most qualified candidate for promotion due to his experience and date of rank, which made him the most Senior Officer eligible for promotion, but he was not selected because of his race and national origin. However, the Board found insufficient evidence to support this contention. The record is void of and the applicant did not provide an equal opportunity investigation or an inspector general investigation, which may have provided independent corroboration. Furthermore, the promotion board instructions include a section on Diversity and Equal Opportunity, which directs board members to “strictly avoid consideration of any factors other than merit and ability, as specified elsewhere in this MOI, in selecting only the absolute best officers for promotion.” 5. Therefore, the Board found insufficient evidence of material error or omission in the applicant’s records which disadvantaged his selection for promotion to major. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 2/12/2020 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. AR 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that to be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) (or a combination of both lists) during the 1– year period ending on the convening date of the promotion selection board, and must meet the time in grade requirements in tables 2-1 or 2-3, as appropriate. 2. 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 3. 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 4. 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 5. AR 600-20 (Army Command Policy) chapter 6 (The Equal Opportunity Program) states that Soldiers will not be accessed, classified, trained, assigned, promoted, or otherwise managed on the basis of race, color, religion, gender, or national origin. It further states that discrimination is any action that unlawfully or unjustly results in unequal treatment of persons or groups based on race, color, gender, national origin, or religion. a. National origin refers to an individual’s place of origin or that of an individual’s ancestors. The term also applies to a person who has the physical, cultural, or linguistic characteristics of a national group. b. Race refers to a division of human beings identified by the possession of traits transmissible by descent and that is sufficient to characterize persons possessing these traits as a distinctive human genotype