ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2021 DOCKET NUMBER: AR20200001408 APPLICANT REQUESTS: * promotion reconsideration to the rank of Colonel (COL)/O-6 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 13 July 2004 * Memorandum – Subject: Notification of Promotion Status dated 17 November 2005 * U.S. Army Human Resources Command (HRC) – Freedom of Information Office, letter dated 17 February 2016 * DA Form 67-8 (U.S. Army Officer Evaluation Report), ending on 8 December 1991 * Permanent Orders (PO) Number 78-4, dated 11 July 1986 * PO Number 170-1, dated 30 September 1986 * PO Number 48-13, dated 17 May 1991 * Air Medal Certificate, dated 28 March 1991 * Official Photo, dated 24 February 2005 * DA Form 67-9, (Officer Evaluation Report), ending on 28 February 2005 * Memorandum – Subject: Letter to the Board President, dated 28 June 2005 * DA Form 2-1 (Personnel Qualification Record) * DA Form 67-9, ending on 20 January 1999 * Judge Advocate Officer Advanced Course Certificate, dated 15 January 1999 * Command and General Staff Officer Course Certificate, dated 27 June 1998 * Army Achievement Medal Certificate, dated 26 May 1999 * Army Achievement Medal Certificate, dated 24 March 1997 * Meritorious Service Medal Certificate, dated 19 October 1992 * Degree of Juris Doctor Certificate, dated 13 May 1995 * PO Number 92-142, dated 9 May 1988 * Army Commendation Medal Certificate, dated 9 May 1988 * Interactive Personnel Electronic Records Management System (IPERMS) document * Department of the Army, Army Review Boards Agency letter dated 11 September 2017 * DA Forms 67-8, from 2 August 1987 – 20 January 1988 * DA Forms 67-9, from 21 January 1999 – 28 May 2004 * Case Management Division letter, dated 11 September 2017 * Memorandum – Subject: Army Board for Correction of Military Records, dated 17 July 2017 * Memorandum – Subject: Special Selection Board (SSB) Notification, dated 29 October 2019 * Email Communication * DA Forms 1059 (Service School Academic Evaluation Report) * Meritorious Service Medal Certificate, dated 6 August 2005 * Army Commendation Medal Certificate, dated 8 July 2005 * Memorandum – Subject: Award of the Global War on Terrorism Service Medal, dated 14 October 2004 * Memorandum – Subject: Award of the Global War on Terrorism Service Medal dated 7 August 2004 * Memorandum – Subject: Shoulder Sleeve Insignia Former Wartime Service, dated 3 June 1991 * PO Number 60-1, dated 24 March 1988 * Army Achievement Medal Certificate, dated 11 April 1988 * Army Commendation Medal Certificate, dated 24 August 1986 * PO Number 78-4, dated 11 July 1986 * College Transcripts * Memorandum – Subject: 2006 U.S. Army Reserve (USAR) COL Judge Advocate General (JAG) Army Promotion List (APL) Board, dated 21 July 2006 * Calendar Year (CY) 2006 COL JAG (Non-Active Guard Reserve (AGR)) document * Memorandum – Subject: Notification of Promotion Status dated 17 November 2005 * Memorandum – Subject: Notification of Promotion Status dated 31 October 2006 * Memorandum – Subject: SSB Results (SSB R1108-01) CY06, Reserve Component (RC) COL, JAG, Army Promotion Selection Board (PSB) per Army Board for Correction of Military Records (ABCMR) Directive, dated 8 February 2013 * Memorandum – Subject: SSB Consideration, dated 8 June 2010 FACTS: 1. The applicant states that his records should go before an SSB based upon the review of his provided promotion packet as provided under the Freedom of Information Act (FOIA). He contests that upon comparison of this packet with his Official Military Personnel File (OMPF) he noted the absence of fourteen (14) DA Forms 67-9. As such, the omission of these documents would constitute a material error. In result, the senior JAG officers who presided as board members received the false impression that he had minimal experience as a JAG officer because his board file only contained 2 of his DA Forms 67-9 received within the branch, when they should have reviewed a total of eight. Additionally, the board members were only able to review one of his "above center mass" evaluations as a JAG officer when they should have reviewed two. He adds that his delayed request for relief is due to him awaiting the results of his 2008 promotion reconsideration as directed by the ABCMR on 11 September 2017. HRC failed to do so until 29 October 2019. 2. A review of the applicant's available service records reflects the following: a. On 20 July 1983, the applicant was appointed as a Reserve commissioned officer at the rank of second lieutenant (2LT)/O-1 with a concurrent call to active duty. b. On 5 February 1985, Headquarters, U.S. Army Aviation Center and Fort Rucker, AL, issued Orders Number 25-37 promoting the applicant to the rank of first lieutenant (1LT)/O-2, effective on with a Date of Rank (DOR) of 30 March 1985. c. On 13 August 1987, the U.S. Army Military Personnel Center, Alexandria, Virginia, issued Orders Number 90-026 promoting the applicant to the rank of captain (CPT)/O-3, effective on with a DOR of 1 September 1987. d. On 30 September 1992, the applicant was released from active duty and transferred into the U.S. Army Reserve Control Group (Reinforcement). e. On 8 August 1995, the applicant was promoted to the rank of major (MAJ)/O-4, effective on with a DOR of 19 July 1995. f. On 14 May 1996, the USAR Personnel Center, St. Louis, MO, issued Orders Number C-05-620888 transferring the applicant into a Troop Program unit (TPU) effective 9 May 1996 g. On 21 January 1998, the applicant was appointed a commission as a Judge Advocate within the USAR. h. On 2 July 1998, the applicant completed the Command and General Staff Officer Course. i. On 2 April 2002, the applicant was promoted to the rank of lieutenant colonel (LTC)/O-5 effective on with a DOR of 19 March 2002. j. On 25 August 2005, the applicant received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). k. On 17 November 2005, HRC notified the applicant of his consideration, but non- selection for promotion during the Army Reserve Components Selection Board conducted on 12 July 2005. l. On 31 October 2006, HRC notified the applicant of his consideration, but non- selection for promotion during the Army Reserve Components Selection Board conducted on 7 August 2006. m. On 14 October 2008, Headquarters, 412th Engineer Command issued Orders Number 08-288-00010 reassigning the applicant to the Retired Reserve effective 30 November 2008. n. On 16 July 2009, the applicant petitioned the Board for promotion to COL or in the alternative an SSB for promotion to COL. o. On 29 April 2010, the Board directed the applicant's records go before an SSB under the 2006 and 2008 COL JAG Corps, Department of the Army Reserve Component Selection Board criteria. p. On 22 February 2021, HRC, Fort Knox, KYT, issued Orders Number C02-191143 placing the applicant on the retired list effective 4 August 2021 in the rank of LTC. 3. The applicant provides the following a; a. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 July 2004 reflective of the applicant's service on active duty from 17 January 2003 through13 July 2004. b. HRC Freedom of Information Office letter, dated 17 February 2016, reflective of their response to the applicant's request under the FOIA for Promotion Board records related to his non-selection for promotion to COL in 2005 and 2006 reconsideration board related to his non-selection for promotion to COL in 2013, and Board Membership. c. DA Form 67-8 (Officer Evaluation Report) reflective of the applicant's performance as evaluated by his immediate leadership during the period of 1 July 1991 through 8 December 1991. The applicant was a CPT within the Aviation Corps during this period. d. PO Number 78-4, dated 11 July 1986, reflective of the applicant being awarded the Army Commendation Medal for service performed from 25 February 1985 through 24 August 1986. e. PO Number 170-1, dated 30 September 1986, reflective of the applicant being awarded the Air Assault Badge. f. PO Number 48-13, dated 17 May 1991, reflective of the applicant being awarded the Air Medal. g. Air Medal Certificate, dated 28 March 1991, reflective of the applicant being awarded the Air Medal. The information contained within is consistent with PO Number 48-13. h. Official Photo, dated 24 February 2005, reflective of the applicant's Department of the Army Photo. i. DA Form 67-9 (Officer Evaluation Report) reflective of the applicant's performance as evaluated by his immediate leadership during the period of 29 May 2004 through 28 February 2005. The applicant was a LTC, within the JAG Corps during this period and received an overall rating of "above center of mass" when compared to other officers Senior Rated in the same grade. j. Memorandum – Subject: Letter to the Board President, dated 28 June 2005, reflective of the applicant raising attention to the fact that he served for 9 years on active duty as a combat arms officer prior to his appointment of a commission with the JAG Corps. He also highlights his previous service as a Company Commander, a mobilized Reservist and current enrollment in the Air War College. k. DA Form 2-1 (Personnel Qualification Record) reflective of the applicant's pertinent personnel data to include military/civilian education, DOR and assignment history. l. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 21 January 1998 through 20 January 1999. The applicant was a MAJ, within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other officers Senior Rated in the same grade. m. Judge Advocate Officer Advanced Course Certificate, dated 15 January 1999, reflective of course completion. n. Command and General Staff Officer Course Certificate, dated 27 June 1998, reflective of course completion. o. Army Achievement Medal Certificate, dated 26 May 1999, reflective of the applicant being recognized for his meritorious service from 1 January 1997 through 10 June 1999. p. Army Achievement Medal Certificate, dated 24 March 1997, reflective of the applicant being recognized for his meritorious service from 23 August 1996 through 2 September 1996. q. Meritorious Service Medal Certificate, dated 19 October 1992, reflective of the applicant being recognized for his meritorious service from 16 October 1988 through 29 September 1992. r. Degree of Juris Doctor Certificate, dated 13 May 1995, as recognized by Creighton University. s. PO Number 92-142, dated 9 May 1988, reflective of the applicant being awarded his second Army Commendation Medal for service performed from 29 March 1988 through 7 April 1988. t. Army Commendation Medal Certificate, dated 9 May 1988, reflective of the applicant being awarded the Army Commendation Medal. The information contained within is consistent with PO Number 92-142. u. Interactive Personnel Electronic Records Management System (IPERMS) document reflective of a listing of documents contained within his OMPF. The applicant highlights the presence of fourteen (14) Officer Evaluation Reports. v. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 2 August 1987 through 6 December 1987. The applicant was a CPT, within the Aviation Corps during this period. w. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 7 December 1987 through 10 April 1988. The applicant was a CPT, within the Aviation Corps during this period. x. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 3 August 1988 through 29 June 1989. The applicant was a CPT, within the Aviation Corps during this period. y. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 30 June 1989 through 29 June 1990. The applicant was a CPT, within the Aviation Corps during this period. z. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 30 June 1990 through 31 October 1990. The applicant was a CPT, within the Aviation Corps during this period. aa. DA Form 67-9 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 1 November 1990 through 30 June 1991. The applicant was a CPT, within the Aviation Corps during this period. bb. DA Form 67-8 (Officer Evaluation Report) reflective of the applicant's performance as evaluated by his immediate leadership during the period of 14 May 1996 through 13 May 1997. The applicant was a MAJ, within the Aviation Corps during this period. cc. DA Form 67-8 (Corrected Copy) reflective of the applicant's performance as evaluated by his immediate leadership during the period of 14 May 1996 through 20 January 1998. The applicant was a MAJ, within the Aviation Corps during this period. dd. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 21 January 1999 through 30 September 1999. The applicant was a MAJ, within the JAG Corps during this period and received an overall rating of "above center of mass" when compared to other Officers Senior Rated in the same grade. ee. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 1 October 2000 through 30 September 2001. The applicant was a MAJ, within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other Officers Senior Rated in the same grade. ff. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 1 October 2001 through 13 August 2002. The applicant was a LTC within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other Officers Senior Rated in the same grade. gg. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 14 August 2002 through 16 January 2003. The applicant was a LTC within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other Officers Senior Rated in the same grade. hh. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 17 January 2003 through 17 August 2003. The applicant was a LTC within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other Officers Senior Rated in the same grade. ii. DA Form 67-8 reflective of the applicant's performance as evaluated by his immediate leadership during the period of 18 August 2003 through 28 May 2004. The applicant was a LTC within the JAG Corps during this period and received an overall rating of "center of mass" when compared to other Officers Senior Rated in the same grade. jj. Department of the Army, Army Review Boards Agency letter, dated 11 September 2017, indicating that HRC provided a memorandum that they found no records to affirm the second SSB under the Fiscal Year (FY) 2008 criteria had occurred. Further, the Officer Promotion Special Action Branch stated their office would continue to review the applicant's military records for a second SSB with notification provided by e-mail at a later date. As such, no corrective action was taken by the ABCMR. kk. Memorandum – Subject: Army Board for Correction of Military Records, dated 17 July 2017, reflective of acknowledgment that only a portion of the applicant's previous ABCMR case (Docket Number AR20090012231) had been conducted; no record of a second SSB having been conducted. As such, HRC would continue to pursue the SSB as previously directed. ll. Memorandum – Subject: SSB Notification, dated 29 October 2019, reflective of the applicant being reconsidered for promotion to COL based upon the FY08 criteria. mm. Email Communication reflective of his previous ABCMR case being administratively closed without prejudice citing that he failed to exhaust the administrative remedies with HRC. nn. DA Form 1059 (Service School Academic Evaluation Report), dated 1 September 1988, reflective of the applicant's completion of the UH-60 Maintenance Manager/Maintenance Test Pilot Course. oo. DA Form 1059, dated 11 March 1987, reflective of the applicant's completion of the Aviation Officer Advanced Course. pp. DA Form 1059, dated 20 December 1984, reflective of the applicant's completion of the Officer Rotary Wing Aviator Course. qq. DA Form 1059, dated 2 March 1984, reflective of the applicant's completion of the Field Artillery Officer Basic Course rr. Meritorious Service Medal Certificate, dated 6 August 2005, reflective of the applicant being awarded the Meritorious Service Medal. The document further provides the corresponding PO Number 05-218-506. ss. Army Commendation Medal Certificate, dated 8 July 2005, reflective of the applicant being awarded the Army Commendation Medal. The document further provides the corresponding PO Number 05-169. tt. Memorandum – Subject: Award of the Global War on Terrorism Service Medal, dated 14 October 2004, reflective of the Soldiers being awarded the Global War on Terrorism Service Medal. The document is void of the applicant's name. uu. Memorandum – Subject: Award of the Global War on Terrorism Service Medal, dated 7 August 2004, reflective of the applicant being awarded the Global War on Terrorism Service Medal. vv. Memorandum – Subject: Shoulder Sleeve Insignia Former Wartime Service, dated 3 June 1991, reflective of the applicant being authorized to wear the "24th Infantry Division" shoulder sleeve insignia for his participation in Operation Desert Shield/Storm. ww. PO Number 60-1, dated 24 March 1988, reflective of the applicant being awarded the Army Achievement Medal for service performed from 13 April 1987 through 11 April 1988. xx. Army Achievement Medal Certificate, dated 11 April 1988, reflective of the applicant being awarded the Army Achievement Medal for service performed from 13 April 1987 through 11 April 1988; consistent with PO Number 60-1. yy. Army Commendation Medal Certificate, dated 24 August 1986, reflective of the applicant being awarded the Army Commendation Medal for service performed from February 1985 through August 1986. zz. PO Number 78-4, dated 11 July 1986, reflective of the applicant being awarded the Army Commendation Medal for service performed between 25 February 1985 through 24 August 1986. aaa. College Transcripts reflective of the applicant's civilian education. bbb. Memorandum – Subject: 2006 U.S. Army Reserve COL JAG APL Board, dated 21 July 2006, reflective of the applicant's acknowledged review of his Board file. The applicant notes that it is complete and highlights his past company command experience and completion of one combat tour. ccc. CY 2006 COL JAG (Non-AGR) document reflective of varying awards, military education and evaluation history. ddd. Memorandum – Subject: Notification of Promotion Status, dated 17 November 2005, reflective of the applicant being considered for promotion but not selected. eee. Memorandum – Subject: Notification of Promotion Status, dated 31 October 2006, reflective of the applicant being considered for promotion but not selected. fff. Memorandum – Subject: SSB Results (SSB R1108-01) CY06, Reserve Component (RC) COL, JAG, Army Promotion Selection Board (PSB) per ABCMR Directive, dated 8 February 2013, reflective of the applicant's non-selection for promotion to COL. ggg. Memorandum – Subject: SSB Consideration, dated 8 June 2010, reflective of a request from HRC to have the applicant considered for promotion by a SSB board under the same criteria and instructions established for the 2006 COL JAG Corps Selection Board that convened on 7 August 2006 and adjourned on 11 August 2006. The ABCMR directed in proceedings AR20090012231, dated 29 April 2010, that a SSB be granted based on the applicant receiving documents that contained derogatory information and his belief they were seen by the selection board. This office conducted a thorough review of the board consideration file and revealed two modified officer evaluation reports in accordance with their proceedings but no derogatory documents. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the circumstances and events related to the previous SSBs. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows another SSB for promotion consideration to the rank of COL is warranted at this time. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides that selection boards will convene at the discretion of the Secretary of the Army. They will consider ARNG and USAR officers, in all competitive categories for promotion to COL. These boards will consider and recommend only those who are in an active status. Officers not selected for promotion to COL will continue to be considered by subsequent selection boards until either selected, or removed. To be eligible for promotion to COL, Officers must have completed the Command General Staff Officers Course and have a minimum of 3-years TIG at the lower grade. Upon notification of consideration, eligible Officers are directed to review their records and submit copies of missing documents or other corrections to the Commander, HRC - Chief, Office of Promotions (Reserve Component). a. An officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to his or her consideration. Any written communication considered by a selection board will become a matter of record. It will be maintained with the records of the board. Written communications to boards, including enclosures, are privileged communications and will not be filed in the officer's OMPF. b. Proper enclosures to a letter to the board include newly acquired diplomas, degrees, professional stature, or information pertaining to civilian occupations. c. Chapter 3, paragraph 3-19 (Promotion Reconsideration Boards) provides that Officers and Warrant Officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate. Special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996. These boards are convened to correct/prevent an injustice to an Officer or former Officer who was eligible for promotion but whose records through error, were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board. HRC may find that a "material error" caused the non-selection of an Officer by a promotion board. That agency must first determine that there is a fair risk that 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 OMPF. d. HRC will normally not determine that a material error existed when an administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF. Also, the Officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that they had. e. Records of officers or former officers will be referred for SSB action when the ABCMR request such referral. 2. Title 10, United States Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//