IN THE CASE OF: BOARD DATE: 24 May 2022 DOCKET NUMBER: AR20210016414 APPLICANT REQUESTS: through counsel via an order to stay proceedings by the U.S. District Court, reconsideration of Army Board of Correction of Military Records (ABCMR) Docket Number AR20190009463, 23 July 2020, directing the ABCMR to: a. review and reconsider the applicant's contention whether its decision included "apply[ing] a wrong harmful error test" requiring "proof the error or injustice alone was the 'sole reason' for non-selection"; b. review and reconsider the applicant's request for consideration for promotion to major by a special selection board (SSB) under the Fiscal Year 2013 and Fiscal Year 2014 criteria; and c. determine whether to provide or deny relief, fully discuss its rationale, and issue a decision within 210 days of this Court's order (26 May 2022). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * U.S. District Court Order, 29 October 2021 * Counsel's Complaint to the U.S. District Court, filed 19 July 2021 FACTS: 1. The applicant requests adjustment of his date of rank to major and a return to active duty with no loss of active duty time. The applicant further defers to counsel. 2. Counsel's complaint to the U.S. District Court, 19 July 2021, states: a. This is a non-monetary claim to remand the Secretary of the Army to reconsider the ABCMR decision promulgated in Docket Number AR20190009463, 22 April 2021, denying the applicant's request for voidance of promotion non-selections to major; reinstatement with an adjusted date of rank of major; or, in the alternative, denial of consideration for promotion to major by an SSB. b. In summary, the applicant is limited to seeking reconsideration of SSB denial after the ABCMR applied the wrong harmless error test and after his application presented a prima facie (based on the first impression; accepted as correct until proved otherwise) case from the Army's own several official opinions justifying consideration for promotion by an SSB – that lack of minimum 1 year or 12 months of command time was an error or injustice conceded not the fault of the applicant, but arose amid exigencies of multiple wartime deployments and assignment freezes. c. The U.S. Army's 2016 official response to a Congressional inquiry as to the likely cause of promotion non-selection to major was this reason alone – "principal discriminator" causing his board scores to fall below the necessary "fully qualified order of merit." Furthermore, official Army post-board instructions (promotion board analysis) for the applicant's consideration stated an officer was "at risk for promotion failure" without a minimum 1-year of command time. d. This presented a prima facie case to qualify for consideration for promotion by an SSB, in that an officer need only show an error or injustice that "might have affected the outcome of the board's decision." Instead, the ABCMR applied the wrong higher standard – an impossible burden placed on the applicant – of absolute proof the error or injustice alone was the "sole reason" for non-selection, and he would certainly have been otherwise promoted. This is termed "but for," a test that courts have long found inappropriate and misapplied for SSB or Standby Advisory Boards ("but for" the error, the officer would have been promoted). Rather, once an officer presented prima facie evidence for consideration for promotion by an SSB, as here, the burden shifts to the U.S. Army or ABCMR to prove that despite the error, the officer would not have been promoted in any event. The ABCMR failed to even apply the latter whether the applicant would not have been promoted despite the error (1 year of command time). Because the ABCMR failed to apply the correct harmless error standard to deny SSB consideration, and even failed to discuss any of its SSB rationale, the decision was arbitrary and capricious. e. The case should be remanded to either grant consideration for promotion by an SSB, or to have the ABCMR reconsider an SSB under the appropriate harmless error test, or to articulate its rationale for denying consideration for promotion by an SSB. 3. The applicant's DA Form 71 (Oath of Office – Military Personnel) shows he executed his oath of office as a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 effective 12 June 2004. 4. U.S. Army Human Resources Command (HRC) Order 166-105, 15 June 2007, promoted him to the rank/grade of captain/O-3 effective 1 July 2007. 5. The applicant's DA Form 1059 (Service School Academic Evaluation Report) covering the period 8 September 2009 through 15 March 2010 shows he completed the Field Artillery Captains Career Course. His rater rated his performance as "Exceeded Course Standards" and marked "Superior" in all five demonstrated abilities. 6. The applicant's Senior Rater Option DA Form 67-9 (Officer Evaluation Report) covering the period 28 September 2012 through 24 June 2013 (9 rated months) shows his principal duty title as "Battery Commander." His senior rater rated his promotion potential to the next higher grade as "Best Qualified" and his potential compared with officers senior rated in the same grade as "Above Center of Mass." His senior rater commented, in part: "A must select for Major and resident ILE [Intermediate Level Education]. Outstanding performance and unlimited potential." 7. The applicant's Change of Rater DA Form 67-9 covering the period 25 June 2013 through 31 March 2014 (8 rated months) shows his principal duty title as "Battery Commander." His senior rater rated his promotion potential to the next higher grade as "Best Qualified" and his potential compared with officers senior rated in the same grade as "Above Center of Mass." His senior rater commented, in part: "Truly superior performance during an exceptionally challenging period. The best battery commander in his battalion, [Applicant] demonstrates an unparalleled maturity, drive, and ability to synchronize efforts across diverse organizations and agencies." 8. The HRC memorandum (Involuntary Discharge or Involuntary Transfer), 29 April 2014, requested the applicant's involuntary separation or transfer based on the results of the Fiscal Year 2014 Major Army Competitive Category Promotion Selection Board (PSB). 9. The applicant's records are void of the results of the Fiscal Year 2013 and Fiscal Year 2014 promotion boards. The applicant's records are also void of any adverse actions. 10. U.S. Army Installation Management Command Orders 234-1320, 22 August 2014, released the applicant from active duty effective 1 October 2014. 11. The applicant's DA Form 4187 (Personnel Action), 19 September 2014, states he agreed to serve in the Ready Reserve of a Reserve Component in order to receive separation pay. 12. The applicant's DA Form 5691-R (Request for Reserve Component Assignment Orders), 1 October 2014, shows he requested assignment to the Oklahoma Army National Guard. 13. The applicant was released from active duty and transferred to the Oklahoma Army National Guard, in the rank/grade of captain/O-3 on 1 October 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) – 10 years, 3 months, and 3 days * item 28 (Narrative Reason for Separation) – Non-Selection, Permanent Promotion 14. The applicant's National Guard Bureau Form 337 (Oaths of Office), 2 October 2014, shows he executed his oath of office for appointment as an officer in the Oklahoma Army National Guard effective 2 October 2014. 15. The HRC memorandum (Appointment as a Reserve Commissioned Officer of the Army), 20 March 2015, appointed the applicant as a Reserve commissioned officer in the rank/grade of captain/O-3 effective 2 October 2014 with a date of rank of 1 July 2007. 16. Oklahoma National Guard, Joint Force Headquarters Orders 343-028, 9 December 2015, promoted the applicant to the rank/grade of major/O-4 effective 3 December 2015. 17. On 23 July 2020, the ABCMR denied the applicant's request for adjustment of his date of rank to major, return to active duty, and amendment of his records to reflect no loss of active duty time. a. The Board carefully considered the applicant's request, supporting documents, and evidence in the applicant's records. The Board considered the applicant's and counsel's statements and the applicant's record of service, assignment history, officer evaluation reports, completion of the Captain Career Course, non-selection for promotion, involuntary separation, accession into the Army National Guard, and subsequent promotion to major. The Board also considered the applicant's transcripts and promotion board statistics. b. The Board was unable to determine the reason(s) for the applicant's non- selection, as those reasons are not made available following promotion boards, and found insufficient evidence that his assignment history was the sole reason for his non- selection. c. Based on a preponderance of the evidence, the Board determined the applicant's non-selection for promotion and separation from active duty was not in error or unjust. 18. The ABCMR letter, 23 April 2021, informed the applicant that his request for relief was denied. 19. The Oklahoma National Guard memorandum (Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty), 21 June 2021, notified the applicant, as a member of the Oklahoma National Guard, his records were forwarded to the Fiscal Year 2021 Major-Lieutenant Colonel Department of the Army Selection Board which convened on 26 January 2021. The memorandum states the applicant was not selected for promotion and that Selection Boards do not record the reason for selection non- selection of individual Officers. 20. The Oklahoma National Guard memorandum (Consideration for Promotion as a Reserve Commissioned Officer of the Army by Department of the Army Reserve Component Selection Board), 18 September 2021, notified the applicant as a member of the Oklahoma National Guard, a Department of the Army Reserve Component Selection Board will convene on 19 January 2022 to consider him for promotion to lieutenant colonel. Qualification for promotion will be determined by a board of officers evaluating his DA Board file, which consists of the performance portion of his Army Military Human Resource Record and Officer Record Brief (ORB). He was instructed that he may write a letter to the president of the board to present specific matters concerning his military service that he may deem important but is not otherwise contained in his Army Military Human Resource Record. 21. Oklahoma Army National Guard Orders 000145383.00, 19 October 2021, shows his current assignment to the 45th Field Artillery Brigade in the Oklahoma Army National Guard. 22. The HRC memorandum (Advisory Opinion for (Applicant)), 21 March 2022, from the Team Lead, Officer Promotions Special Actions, states: a. Based on a review of their records and the information provided, the Officer Promotions Special Actions Office found the applicant's request for consideration for promotion by an SSB under the Fiscal Year 2013 and Fiscal Year 2014 criteria did not have merit. b. The applicant is requesting reconsideration for promotion to the rank of major under the Fiscal Year 2013 and Fiscal Year 2014 Major PSB criteria due to a lack of command rated time. In order for the applicant to qualify for an SSB, he would have to show that a material error existed within his board file and submit supporting documents showing what efforts were made prior to the convening date of the promotion board to correct the perceived error. HRC records indicate the applicant viewed and certified his board files. The Officer Promotions Special Actions Office did not see that a material error existed within the applicant's board file. c. The reason for the applicant's non-selection is unknown because statutory requirements in Title 10, U.S. Code, section 613 (Oath of Members of Selection Boards), prevents disclosure of board proceedings to anyone who is not a sworn member of the aforementioned board. HRC can only conclude that the promotion board determined the applicant's overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected. 23. On 29 March 2022, the Army Review Boards Agency Case Management Division provided the applicant's counsel with a copy of the HRC advisory opinion to allow him the opportunity to review and submit comments for consideration. 24. Counsel's letter (Rebuttal to the Advisory Opinion Issued by HRC in the Matter of (Applicant)), 11 April 2022, states: a. The applicant submitted his application to the ABCMR in 2019 and requested consideration for promotion by an SSB under the Fiscal Year 2013 and Fiscal Year 2014 criteria on the grounds that, while serving on active duty, he was passed over for promotion due to error or injustice due to stop-loss policies in place due to the frequent deployment of his brigade. He was prevented from obtaining battery command until late in his promotion window. This was despite excellent officer evaluation reports. The lack of 12 months of battery command was, for artillery officers before the Fiscal Year 2013 and Fiscal Year 2014 promotion boards, a discriminatory equivalent of equal impact to their promotion chances of a derogatory officer evaluation report. b. The applicant requested consideration for promotion by an SSB under the Fiscal Year 2013 criteria on the grounds that it was in injustice that his lack of battery command was held too strongly against him and consideration for promotion by an SSB under the Fiscal Year 2014 criteria on the grounds that he had the 12 months of battery command required, but turnover in his command structure prevented the final 3 months from being officially rated. c. The ABCMR denied the applicant's request for relief on 22 April 2021. The applicant appealed the ABCMR's decision to the U.S. District Court on 19 July 2021 on the grounds that the ABCMR had applied a wrongful "but for" standard when determining whether he merited consideration for promotion by an SSB under the Fiscal Year 2013 and Fiscal Year 2014 criteria. d. Argument: The advisory opinion misapplies the governing statute, Title 10, U.S. Code, section 628 (Special Selection Boards), and also completely fails to address the actual facts of the case. The entire crux of this case is that the lack of 12 months of command was, at the time, a significant discriminator to the degree of a negative officer evaluation report. The applicant's argument is that he had 12 months of actual command time, it just could not all be rated because of turnover within his unit's leadership prior to the end of his 12-month officer evaluation report period and that the application of this discriminator against him was unjust because the only reason there was even a question as to the applicant's command time was due to his combat deployments. Under Title 10, U.S. Code, section 628(b)(1)(B), this is clearly material information which the board did not have for its consideration. The applicant clearly qualifies for consideration for promotion by an SSB under the Fiscal Year 2014 promotion criteria with this unjust "black mark" removed via clarification to the promotion board. e. Title 10, U.S. Code, section 628(b)(1)(B), states an SSB is warranted when there is material information that the board did not have the opportunity to consider. The Fiscal Year 2013 promotion board lacked the material information at the time to understand that the applicant's lack of command tenure was unusual and did not qualify for the normal situation where it should be a "black mark" against the officer. The applicant had excellent officer evaluation reports and the only reason he did not have command tenure until so late in his "promotion clock" was because he was deployed overseas to risk his life fighting for his country. This nuance concerning his delayed rise to battery command is clearly material information, and it was clearly an injustice for the promotion board to not have been aware of it, meaning that the applicant merits consideration for promotion by an SSB under the Fiscal Year 2013 promotion criteria. f. Given that the advisory opinion completely ignores one half of the governing statute for granting an SSB, and completely fails to address the reason or arguments for why the applicant qualifies for an SSB, the ABCMR should not adopt its recommendations or positions. Instead, it should find that there was error or injustice in the manner in which his file was considered, and it should grant promotion consideration by an SSB under the Fiscal Year 2013 and Fiscal Year 2014 promotion criteria to correct this and permit a promotion board to review his file under the provisions of Title 10, U.S. Code, section 628(b)(1)(B), with the new material information in hand. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. a. The Board assessed all the evidence, including the advisory opinion from HRC and the applicant’s response to that opinion, and determined that relief is not warranted. The crux of the applicant’s argument is that the “exigencies of multiple wartime deployments and assignment freezes” constitute error or injustice justifying the unusual remedy of sending the applicant’s military file to a Special Selection Board (SSB). The nexus to the applicant’s case is that, according to the applicant, these freezes and deployments prevented the applicant from completing 12 months of battery command prior to his being considered for promotion to Major. The applicant’s arguments in this regard emphasize that these deployments and freezes were “not the fault of [the applicant].” The Board does not contest this assertion. However, the Board notes that during the much of the time period relevant to the applicant’s case the United States was engaged in combat operations in the Middle East. The Department of the Army (DA) and the Department of Defense (DOD) implemented various policies that affected deployments, military schooling, and assignment progressions of tens of thousands of officers. DOD and DA obviously considered these policies necessary to execute the nation’s war on terror. The Board does not consider these policies (which might have included stop-loss directives and deployment extensions) to be “error.” Nor does the board consider the effects of these policies to be “injustices” inasmuch as any policy decision made at the DOD / DA level will always have cascading effects that impact each servicemember differently. Moreover, the record indicates that the applicant completed, or nearly completed, 12 months of battery command when he was considered for promotion by the FY 2014 promotion board. In the end, the Board determined that the applicant failed to demonstrate by a preponderance of evidence error or injustice warranting relief. b. As indicated, the Board determined that the applicant failed to demonstrate by a preponderance of evidence error or injustice warranting relief. The reasons for the Board’s decision include the following: (1) 12 Months of Battery Command Time Was Presented to the FY 2014 Promotion Board. The applicant’s key assertion is that the absence of 12 months of battery command time severely undermined his chances for promotion to Major. But the record indicates that the applicant assumed battery command in September of 2012. The FY 2014 promotion board did not meet until October 2013. Consequently, the applicant did, in fact, complete (or nearly complete) 12 months of battery command by the time he was required to certify his promotion board file in September – October 2013. The applicant complains, however, that an Officer Evaluation Report (OER), covering a period of time from 28 September 2012 thru 24 June 2013, indicates only 9 months of battery command. Although true, this complaint does not negate the fact that the promotion board must have surmised that the applicant’s tenure as battery commander did not terminate on 24 June 2013. This is because the OER is a “Senior Rater Option” OER, which indicates that the OER was submitted not because the applicant’s battery command was ending, but merely because the senior rater was moving to another assignment and chose to provide an OER for the applicant. Promotion board members are savvy to Army evaluation report procedures, and would have noticed this. Additionally, the applicant could have ensured that his ORB (Officer Record Brief) Assignment Information section accurately included 12 months of battery command time. Alternatively, the applicant could have submitted a statement to the promotion board on his own behalf emphasizing that he completed 12 months of command. If the applicant did in fact take these measures to ensure the promotion board was aware of his 12-month battery command time, then the applicant’s complaints in this regard are largely moot. If the applicant did not take these measures, then the applicant must assume responsibility for whatever error theoretically occurred relative to the promotion board’s misapprehension of the length of his battery command. (2) “Command Time” Versus “Rated Command Time.” The applicant states, “According to FA Branch, without a minimum of 12 months of successful command time, I was not Branch qualified for promotion. I have attached excerpts from the 2013 FA Branch Leaders Book issued by FA Branch at HRC showing the necessity for 12 months of rated command time. The highlights were done by FA Branch.” But the excerpt the applicant cites does not assert the necessity of 12 months of rated command time. Instead, the excerpt provides, “An FA CPT is at risk for promotion to MAJ without a minimum of 12 months in command on file at the time of their board….” The excerpt also provides, “Officers with a highly enumerated ACOM command OER but less than 12 months in command were selected for promotion PZ [in the promotion zone].” Thus, the excerpt itself acknowledges that 12 months of command is not a sine qua non for promotion to Major. As noted previously, the excerpt recommends 12 months of command time. It does not state the need for 12 months of rated command time. By the time the FY14 promotion board met, the applicant did have 12 months of command time. If the applicant’s ORB (a document considered by promotion boards) was accurate (it was the applicant’s responsibility to ensure its accuracy) it would have reflected 12 months of battery command time. As an alternative or as a supplement, the applicant was at liberty to submit documentation highlighting to the promotion board that he had, in fact, completed 12 months of command. He could have highlighted anything he wished, for that matter, including supposed delays in schooling and supposed delays in obtaining certain duty assignments. To the best of the Board’s knowledge, the applicant failed to take advantage of these opportunities to provide additional information to the promotion boards. (3) Lawful Decisions Made at DOD or DA Are Not “Error.” The applicant seemingly cites as “error” and / or “injustice” the fact that his attendance at the Captains Career Course was delayed, which in turn caused a delay in his being assigned as a battery commander. The applicant highlights various combat operations in the then- ongoing war on terror and resulting stop-loss actions enacted to maintain a fighting force in a time of war. However, the Board does not consider these circumstances to be “error.” These DA and DOD-level decisions were not inadvertent, not contrary to law, and not contrary to policy. Instead, they were deliberate, calculated, and lawful. They were effectuated to maximize combat effectiveness. The Board therefore does not deem these actions as “error.” Nor can they be considered as “injustices” because they affected literally tens of thousands of servicemembers in various ways. Unforeseen and disappointing duty assignments are an unavoidable aspect of military service. Delayed schooling and delayed assignments are commonplace. Consequently, the Board is not inclined to find error or injustice relative to the US government’s war-time decisions regarding personnel deployment, stop-loss, or duty assignments. (4) The Applicant Has Failed to Demonstrate His Case Meets SSB Criteria. Title 10 U.S.C. 628 provides that a special selection board may be convened if there was material unfairness with respect to an officer not selected for promotion. In order to find material unfairness, it must be determined that the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact, or material administrative error, or the board did not have before it material information for its consideration. It is the applicant’s burden to demonstrate materiel unfairness by a preponderance of evidence. In the Board’s view, the applicant has failed to demonstrate material error by a preponderance of evidence. The Board’s assessment in this regard is based upon its findings that: (a) Any delay in the applicant attending the Captains Career Course or the applicant being assigned to Battery Command was not error. These decisions and circumstances resulted from deliberate and lawful government action. (b) The applicant and his counsel have failed to demonstrate that either the FY13 or the FY14 promotion boards were deprived of any material information relative to the applicant. Each promotion board was provided with all OERS, AERS, and all relevant information pertaining to the applicant. To the extent the boards were not apprised to the applicant’s satisfaction about the applicant’s unique duty assignment progression, the Board finds it was incumbent upon the applicant to have apprised the boards of that information prior to certifying his promotion file as being complete. 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.1. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 2. Army Regulation 600-8-29 (Officer Promotions), effective 25 March 2005 and in effect at the time, prescribed the officer promotion function of the military personnel system. It provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. a. Paragraph 1-10 (Promotion Eligibility) stated that to be considered for promotion by a selection board, an officer must be on the Active Duty List on the day the board convenes. Promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. b. Paragraph 1-11 (Approving Promotion Board Recommendations) stated 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 major and above must be confirmed by the Senate. c. Paragraph 1-13 (Failure to Be Selected for Promotion) stated an officer on the Active Duty List who has failed to be selected for promotion to major a second time will be subject to discharge or release from active duty according to Army Regulation 600-8-24 (Officer Transfers and Discharges). d. Paragraph 1-30 (Convening Selection Boards) stated whenever the needs of the service require, the Secretary of the Army will convene selection boards to recommend officers for promotion to the next higher grade. At least 30 days before convening a PSB, HRC will announce in writing the date the board will convene and the names and active date of rank of junior and senior officers in the promotion zone. The officers will be notified either personally or by general announcement. e. Paragraph 1-32 (Conduct of Board Members) stated board members will not divulge details of the deliberative process (other than a generalized description of board procedures) before, during, or after the board to outside parties, whether senior or subordinate to the board member except as specifically directed by the Secretary of the Army or his authorized representative. f. Paragraph 1-33 (Information Provided to Boards) stated the Secretary of the Army will provide guidance and instructions in a memorandum of instruction (MOI) to the board. (1) The Secretary of the Army or his or her designee may modify, withdraw, or supplement the MOI before the board adjourns. The MOI issued to each promotion selection board will specify the following: * the oath to be taken by board members * reports to be made * the method of selection * factors to be considered, including the Army's needs in each branch, functional area, or skill * the maximum number of officers to be selected from each competitive category * other information as required (2) Officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration. Written memorandums sent to a promotion selection board will be considered if received not later than the date the board convenes. Memorandums should be addressed to President (appropriate promotion board), HRC, Attention: AHRC-MSB, 200 Stovall Street, Alexandria, VA 22332-0441. Any memorandum considered by a promotion board will become a matter of record to be maintained with the records of the board. Memorandums to boards (including enclosures) will not be filed in the officer's Official Military Personnel File (OMPF). g. Paragraph 4-3 (Rules for Notifying Eligible Officers and Preparing for Promotion Selection Board) stated officers are responsible for presenting the most accurate information to the promotion selection board. They may obtain their OMPF from HQDA for review. h. Chapter 7 (Special Selection Boards) are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. i. Paragraph 7-2 (Purpose of Boards) stated SSBs may be convened under Title 10, U.S. Code, section 638, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, 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; (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or (3) the board that considered an officer from in or above the promotion zone did not have before it some material information. j. Paragraph 7-3 (Cases Not Considered) stated 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; or (2) an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB, or OMPF. The ORB is a summary document of information generally available elsewhere in the officer's record. 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. 3. Army Regulation 600-8-29 (Officer Promotions), effective 9 October 2020 superseded Army Regulation 600-8-29, effective 25 March 2005. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support Active Component officer promotions. This regulation supports the objectives of the Active Component's officer promotion system, which includes filling authorized billets with the best qualified officers. It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting officers who are not eligible or become disqualified, thus providing an equitable system for all officers. a. Paragraph 2-1 (Verify Eligible Officers and Data to Be Considered by a Selection Board) states: (1) Officers are deemed eligible for consideration by a selection board as prescribed by the Secretary of the Army in the appropriate zone message for the specific grade and competitive category. (2) Each officer's active date of rank must be in one of the zones of consideration to be considered by a selection board. (3) Each officer must meet promotion eligibility criteria (see paragraph 2-7). b. Paragraph 2-2 (Notification) states: (1) Officers are notified of upcoming selection boards via HQDA/HRC military personnel (MILPER) messages approximately 100 days from the board convening date. Officers eligible for promotion will be individually notified of their eligibility through the My Board File (MBF) Application available on the Self Service portal of the HRC Web site, which opens approximately 60 days prior to the convening date of each board. (2) Officers are responsible for presenting accurate information to the PSB. Officers must review their MBF and contact their servicing S1 or assignment officer to correct and update their records. Failure to apply due diligence is not a basis for reconsideration for promotion. Assignment officers should assist the officer to the maximum extent possible. (3) Evaluation reports and communications with the board will be submitted under provisions of paragraph 2-6. (4) S-1s, military personnel divisions, and/or G-1s will review selection board notification MILPER messages to identify eligible officers within their unit and will: (a) Ensure and validate that officers have received notification of their upcoming board and have access to the MILPER message and MBF. (b) Assist officers with updating their official records, to include their DA Form 4037, their AMHRR, and their HQDA photograph. (c) Ensure required evaluation reports are submitted error free to HRC by the suspense provided in the MILPER message. (d) Access MBF report 30 days prior to the board to determine if any officer in their population has not certified his or her board file. Access is granted by contacting the HQDA Secretariat, HRC, at: Commanding General, U.S. Army Human Resources Command (AHRC-PDV-S), 1600 Spearhead Division Avenue, Department 471, Fort Knox, KY 40122-5407 or usarmy.knox.hrc.mbx.tagd-board-ac-officer@mail.mil. c. Paragraph 2-5 (Conduct of Board Members) states: (1) Officers chosen to participate on PSBs should possess the professional characteristics and reflect the values that the Army considers to be of utmost importance. Therefore, commanders will ensure that all nominees for board duty meet the high standards expected of board members. (2) Board members will ensure that the selection process is scrupulously fair and will seek guidance from the convening authority or his or her designee if questions concerning proper personal conduct arise. Further, board members who observe suspected improprieties that may adversely influence board proceedings will immediately report this information to the convening authority or his or her designee. Any board member who cannot in good conscience carry out board member responsibilities without prejudice or partiality has a duty to request relief from the convening authority or his or her designee. (3) Board members will not: (a) Receive or introduce into the deliberations any information, good or bad, concerning an officer under consideration to the board. (b) Engage in, or give the appearance of, preferential treatment to any individual or group of officers under consideration. (c) Divulge details of the deliberative process (other than a generalized description of board procedures) before, during, or after the board to outside parties, whether senior or subordinate to the board member, except as specifically directed by the Secretary of the Army or Secretary of the Army's authorized representative. (c) Reveal board results before official release of the selection list. (d) Disclose involvement in an ongoing selection board; for example, making informal office or social visits within the vicinity of the board deliberations or informing seniors (other than in the immediate chain of command), subordinates, or colleagues of status as a board member until the Secretary of the Army acts on the board result. (e) Solicit information or guidance from branch proponents, assignment managers, or Army command representatives concerning individual officers or groups of officers under consideration unless authorized in the written or verbal instructions to the board. (4) Board members will swear to perform their duties without prejudice or partiality, having in view both the special fitness of officers and the efficiency of the Army. d. Paragraph 2-6 (Information Provided to Boards) states: (1) Board Instruction. The Secretary of the Army will provide guidance and instructions in an MOI to the board. The Secretary of the Army or Secretary of the Army's 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 Secretary of Defense. The board president will review the MOI with all board members on the convene date of the board. (a) The MOI issued to each PSB will specify the following: * the oath to be taken by board members * reports to be made * the method of selection * factors to be considered, including the Army's needs in each branch, functional area, or skill * the maximum number of officers to be selected from each competitive category * other information as required (2) Other Information. The Secretariat for HQDA Selection Boards will ensure that each board member receives a copy of Department of Defense Instruction 1320.14 and the applicable portions of this regulation, for review before the board convenes. Selection boards are also provided the following: (a) Correspondence to the board submitted under paragraph 2-6c. (b) All communications with the exception of paragraph 2-6b(3)(f) and other than those solely administrative in nature, will be in writing, furnished to all board members, and made a part of the board's record. An audio or video recording is an acceptable means of communication with the board so long as a written transcript is included in the board record. No one, other than the Secretary of the Army, will appear in person to address a PSB on any matter; this authority may not be delegated. If the Secretary of the Army appears in person to address a PSB, a verbatim written transcript of his or her remarks will be provided to every board member and included in the board record. This does not restrict the HQDA Secretariat for Selection Boards from furnishing administrative information to the board. Oral communication of routine administrative information among board members, recorders, and support personnel is authorized to the extent necessary to facilitate the work of the board. (c) No one may appear in person before a selection board, the Deputy Chief of Staff, G-1, or the Secretary of the Army on his or her own behalf or in the interest of anyone being considered. (3) Officers eligible for consideration may write to the board to provide information and documents (as enclosures) calling attention to any matter concerning them that they consider important to their consideration. Written memorandums sent to a PSB will be considered if received before the date the board convenes. Only one letter to the board, with enclosures, will be viewed by the board. Memorandums should be addressed to: President (appropriate promotion board), 1600 Spearhead Division Avenue, Department 471, Fort Knox, KY 40122-5407. Any memorandum considered by a promotion board will become a matter of record to be maintained with the records of the board. Memorandums to boards (including enclosures) will not be filed in the officer's AMHRR. 4. Title 10, U.S. Code, section 613 (Oath of Members of Selection Boards), states each member of a selection board shall swear that he will perform his duties as a member of the board without prejudice or partiality and having in view both the special fitness of officers and the efficiency of his Armed Force. Section 613a (Nondisclosure of Board Proceedings) states the proceedings of a selection board convened may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. This prohibition is a statutory exemption from disclosure. 5. Title 10, U.S. Code, section 628 (Special Selection Boards), paragraph (b)(1), states if the Secretary of the Military Department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine: a. the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or b. the board did not have before it material information for its consideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016414 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1