IN THE CASE OF: 
BOARD DATE: 6 September 2023
DOCKET NUMBER: AR20230001639 


APPLICANT REQUESTS: 

•backdate his Date of Rank (DOR) for major (MAJ)/O-4 to 1 July 2018 versus


1 July 2020 and paid the back pay and allowance due for the backdated DOR
•a personal appearance before the Board



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•E-mail to U.S. Army Human Resources Command (HRC) Officer PromotionsBranch

•Request for Special Selection Board (SSB)

•Officer Record Brief (ORB), 23 February 2018

•ORB, 11 June 2020

•E-mail from HRC System Support Branch

•HRC Memorandum, Subject: SSB notification - Reconsideration

•ORB, 23 February 2018

•HRC Memorandum, Subject: SSB Fiscal Year (FY) 2018, MAJ, Judge Advocate,Army Reserve-Active Guard/Reserve (AGR), Promotion Selection Board (PSB)

•HRC letter, response for Freedom of Information Act (FOIA)/Privacy Act



FACTS: 

1.The applicant states in effect, he requests that his DOR for the rank of MAJ bebackdated to 1 July 2018 and to receive back pay and allowances for the difference forthe rank for the period of 1 July 2018 through 1 July 2020.

He was not promoted to the rank of MAJ until July 2020 though he should have been promoted in July 2018. He requested a SSB to correct the error of his non-selection for promotion due to his Department of the Army (DA) Photograph and his incorrect ORB was included in his board file. They were included in error and against Army Regulation. The DA Secretary refused to hold another SSB to correct the error citing that board was properly held, but it was not. His board file was construed the way it should have been for the original board and as such he should have his DOR adjusted since he did not receive the backdated promotion which would have corrected the error. 

2.A review of the applicant's service record shows:

a.With prior U.S. Army Reserve (USAR) enlisted service, the applicant completedhis oath of office and was appointed a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1, effective 19 February 2009. 

b.On 25 February 2009, Orders Number 09-056-00018, issued by Headquarters(HQs), U.S. Army Reserve Command (USARC), the applicant was honorably discharged, effective 18 February 2009 for appointment as a commissioned officer. 

c.DD Form 214 (Certificate of Release or Discharge from Active Duty) shows theapplicant was ordered to active duty for training on 5 April 2009 for attendance to the Signal Corps Basic Officer Leader Course. The applicant was honorably released from active duty on 26 August 2009.  

d.On 11 February 2010, Orders Number C-02-002295, issued by HRC, theapplicant was appointed and assigned to the USAR, effective 11 February 2010. 

e.On 4 July 2010, the applicant entered active duty.

f.DA Form 1059 (Service School Academic Evaluation Report) shows the applicantachieved course standards for the Judge Advocate Officer Basic Course during the period of 4 July through 29 September 2010. 

g.The applicant was honorably released from active duty on 29 September 2010.

h.On 2 May 2011, Orders Number 11-122-00103, issued by HQs, 81st RegionalSupport Command, the applicant was reassigned to the USAR Control Group (Reinforcement), effective 2 May 2011. 

i.On 16 May 2011, Orders Number A-05-110088, issued by HRC, the applicant wasordered to active duty for Contingency Operation for Active-Duty Operational Support (CO-ADOS), effective 21 May 2011. 

j.On 11 October 2011, Orders Number C-10-113788, issued by HRC, the applicantwas assigned to the 154th Judge Advocate Detachment, effective 1 November 2011. 

k.On 30 December 2011, Orders Number B-12-108549, issued by HRC, theapplicant was promoted to the rank/grade of captain (CPT)/O-3, effective on with a DOR of 1 November 2011. 
l.On 12 April 2012, Orders Number A-04-206814, issued by HRC, the applicantwas retained on active duty to participate in the Reserve component warriors in transition medical retention processing program for completion of medical evaluation, effective 12 April 2012.   

m.On 11 June 2012, Orders Number A-06-210479, issued by HRC, the applicantwas retained on active duty to participate in the Reserve component warriors in transition medical retention processing program for completion of medical care and treatment, effective 12 June 2012. 

n.The applicant was honorably released from active duty on 16 September 2012and assigned to the USAR Control Group (Reinforcement). 

o.DD form 214 shows the applicant was ordered to active duty in support ofOperation Enduring Freedom, effective 2 June 2013. He was honorably released from active duty on 2 June 2014.  

p.On 13 November 2014, Orders Number R-11-493646, issued by HRC, theapplicant was ordered to active duty in an AGR status, effective 2 March 2015, for a 3-year active duty commitment. 

q.DA Form 1059 shows the applicant achieved course standards for the JudgeAdvocate Officer Advance Course during the period of 7 through 18 December 2015. 

r.On 21July 2020, Orders Number B-07-004714, issued by HRC, the applicant waspromoted to the rank/grade of MAJ/O-4, effective on with a DOR of 1 July 2020. 

3.The applicant provides:

a.E-mail from the applicant to HRC Officer Promotions Branch dated






14 October 2022, he stated he received a copy of his board file from the most recent SSB and that there were two material errors in his board file.  (1) First error was the DA photograph was included in his SSB file, whichaccording to Brigadier General (BG) - the SSB should not be using the DA photograph, effective 1 August 2020 in accordance with a memorandum dated 19 October 2020. Therefore, the inclusion of his DA photograph in his previous SSB was a violation for Army policy which made this a material error. He was putting HRC on notice of the violation. (2) Second error, the reason he was granted the SSB twice was that his incorrect ORB was included in his original 2018 PSB as well as his SSB. The incorrect ORB listed his highest Professional Military Education as the Basic Officer Course instead of 





the Captain Career Course. For his 2022 SSB, his correct ORB should have been included in his board file; however, it was not. He was not sure how the Army keeps getting this incorrect. b. On 4 October 2021, the applicant requested a SSB reconsideration for the FY18 MAJ, , AR-AGR PSB in accordance with Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19a(2) (Promotion Reconsideration Boards) due to administrative error to correct an injustice caused by Army error. He stated a technical issue within the Army systems gave the appearance that he was not educationally qualified though he was by the completion of the Judge Advocate Officer Advance Course. On 6 March 2018 the PSB was held, although he was highly qualified, he was not selected because his ORB had shown he was a graduate of the Basic Officer Course instead of the Captain Career Course graduate, which misrepresented his educational qualification. Because of this error he was granted an SSB, which was held in July 2020; however, HRC submitted his incorrect ORB to the board instead of the corrected ORB from 4 December 2019. As a result, he was non-selected for promotion in the process which should have been just a formality. Through a FOIA request, he was provided his board file which shows the incorrect ORB was included in his board file although his ORB was corrected 6-months prior to the convening of the board and there was no justification for HRC to present the incorrect ORB for the SSB. This was no fault of the applicant. c. ORB dated 23 February 2018 shows the applicant completed the Judge Advocate Officer Advance Course in 2016, the Judge Advocate Officer Basic Course in 2010 and the Basic Officer Leader Course in 2009. d. ORB dated 11 June 2020 shows the applicant completed the Judge Advocate Officer Advance Course in 2016, the Judge Advocate Officer Basic Course (Phase II) in 2010 and the Basic Officer Leader Course in 2009. 

e.E-mail from HRC Systems Support Branch dated 4 December 2019, which statedthe applicant's record within the Total Army Personnel Database – Reserve was believed to be updated to reflect his correct military schools which he completed. 

f.HRC Memorandum, Subject: SSB notification – reconsideration, dated
30 January 2020, stated the applicant would be reconsidered for promotion by the DA SSB under the criteria and instructions established for the FY18 MAJ, JAG, AR-AGE regularly constituted PSB. His board file will be constructed as it should have appeared on the convene date of the board. The only documents that would be available for the board to view will be in accordance with the Military Personnel (MILPER) message announcement(s) and/or the Army Review Board Agency (ARBA) directive. 

g.ORB dated 23 February 2018 shows the applicant completed the JudgeAdvocate Officer Advance Course in 2016, the Judge Advocate Officer Basic Course in 2010 (Phase II) and the Basic Officer Leader Course in 2009. 

h.HRC Memorandum, Subject: Subject: SSB Results FY18 MAJ JA, AR-AGR,PSB, dated 3 March 2021, stated the applicant was reconsidered for promotion by the DA SSB to MAJ under the FY18 criteria, but unfortunately, he was not selected for promotion. The reason for his non-select was not known because of statutory requirements prevent the disclosure of board proceedings to anyone who was not a sworn member of the aforementioned board. It could only be concluded that the SSB determined that his overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected. There was no appeal process for a non-selection; it is the final adjudication of his case. With confidence, the applicant received a fair and equitable consideration by the SSB; however, if he continued to believe and can prove he was treated unfairly, he could elect to contact the ARBA with substantial evidence proving an injustice. 

i.HRC letter dated 11 October 2022 in response to the applicant's FOIA request acopy of his SSB board file for the FY18 MAJ, JA, AR-AGR PSB was provided. The board file included his DA photograph, his DA Forms 67-10-1 covering evaluations from 19 January 2009 through to 14 July 2017 with gaps from 4 July through 29 September 2010, 16 April through 20 May 2011, 2 April through 16 September 2012, and 1 June through 14 October 2014.  

•1 March through 14 July 2017, he was proficient in the performance of his dutiesand was most qualified and demonstrated excellent potential for promotion toMAJ

•1 March 2016 through 28 February 2017, he had excelled in the performance ofhis duties and was most qualified and was a must select for promotion to MAJ

•1 March 2015 through 28 February 2016, he was proficient in the performance ofhis duties and was highly qualified and was a must select for MAJ

•15 October 2014 through 28 February 2015, he was proficient in the performanceof his duties and was highly qualified and should be promoted ahead of his peers

•1 June 2013 through 31 May 2014, he was proficient in the performance of hisduties and was highly qualified with outstanding potential and should bepromoted soonest

•17 September 12 through 31 May 2013, he had outstanding performance whomust be promoted to MAJ at the earliest possible opportunity and was center ofmass

•21 May 2011 through 1 April 2012, he had outstanding performance who hadunlimited potential for positions of increased responsibility and was center ofmass and should be promoted early


•30 September 2010 through 15 April 2011, he had outstanding performance whohad unlimited potential for service in positions of increased responsibility andbest qualified and had unlimited potential "senior rater no box check"

•6 December 2009 through 3 July 2010, he had outstanding performance whohad unlimited potential for service in positions of increased responsibility and hewas best qualified with outstanding performance "senior rater no box check"

•19 January through 5 December 2009, he had outstanding performance who hadgreat potential and he was best qualified "senior rater no box check"



The board file shows he achieved course standard during the Judge Advocate Officer Advance Course and the Judge Advocate Officer Basic Course. He received an Army Commendation Medal for outstanding meritorious service as a Trial Defense Counsel at the Fort Benning Field Office, a Bronze Star Medal for exceptionally meritorious service during Operation Enduring Freedom in Afghanistan along with a Combat Action Badge. His college transcripts shows that he was awarded the Bachelor of Science in Legal Studies 27 May 1993 and his Juris Doctor on 10 June 1996. His ORB shows the applicant graduated the Judge Advocate Officer Advance Course in 2016. 

j.HRC memorandum dated 3 August 2022, stated the applicant was reconsideredfor promotion by the DA SSB to MAJ under the FY18 criteria, unfortunately he was not selected for promotion. The reason for his non-selection was unknown because of statutory requirements prevent the disclosure of board proceedings to anyone who is not sworn member of the aforementioned board. It can be concluded the SSB determined his overall record, when compared with the records of his contemporaries did not reflect as high a potential as those selected. 

4.On 20 September 2020, the Army Board for Correction of Military Records(ABCMR), Docket Number AR20180016270 convened to consider the applicant'srequest for SSB reconsideration for promotion to the rank of MAJ/O-4, the Boarddetermined there was insufficient evidence to grant the applicant relief. The Boardcarefully considered the applicant's assertion that he was the most qualified candidatefor promotion due to his experience and DOR, which made him the most senior officereligible for promotion, but he was not selected because of his race and national origin.However, the Board found insufficient evidence to support his contention. The recordwas void of and the applicant did not provide an equal opportunity investigation or aninspector general investigation, which may have provided independent corroboration.Furthermore, the promotion board instructions include a section on diversity and equalopportunity, which direct the board member to strictly avoid consideration of any factorsother than merit and ability, as specified elsewhere in the memorandum of instruction, inselecting only the absolute best officers for promotion.


BOARD DISCUSSION: 



1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation. Upon review of the applicant’s petition, available military records andU.S. Army Human Resources Command (HRC) Officer Promotions Special Actionscorrespondence, the Board concurred with the HRC finding that the applicant’s overallrecords as compared with those of his contemporaries did not reflect as high a potentialas those selected. The Board agreed official promotion and selection boards selectmembers for promotion based upon their performance and potential; the Board doesnot.  The Board may refer records to appear before a special selection board(SSB) for promotion consideration when there is a clear error or injustice.  The Boardagreed the request for relief has no merit as the available evidence does not clearlyindicate that the conditions for referring the applicant to an SSB was met. Therefore, theBoard denied relief to amend the previous Board decision.2.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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.


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. 



Microsoft Office Signature Line...
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. 

ADMINISTRATIVE NOTE(S): 


REFERENCES: 

1.Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures forcorrection 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 oropinions. Additionally, it states in paragraph 2-11 applicants do not have a right to ahearing before the ABCMR. The Director or the ABCMR may grant a formal hearingwhenever justice requires.

2.Title 10 United States Code (USC), section 14308 (Promotions: how made), (c)(Date of Rank), (1)The DOR of an officer appointed to a higher grade under this sectionis determined under section 741(d)(2) of this title. (2)The DOR of an officer appointed toa higher grade may be adjusted in the same manner as an adjustment may be madeunder section 741(d)(4) of this title in the DOR of an officer appointed to a higher gradeunder section 624(a) of this title. In any use of the authority under the precedingsentence, subparagraph (C) (ii) of such section shall be applied by substituting "reserveactive-status list" for "active-duty list". (3) Except as provided in paragraph (2) or asotherwise specifically authorized by law, a reserve officer is not entitled to additional payor allowances if the effective date of the officer's promotion is adjusted to reflect a dateearlier than the actual date of the officer's promotion.

3.Title 10 USC, section 741 (Rank: commissioned officers of the armed forces), (d) (2)Except as otherwise provided by law, the DOR of an officer who holds a grade as theresult of a promotion is the date of his appointment to that grade. (4) (A) The Secretary concerned may adjust the DOR of an officer appointed under section 624(a) of this title to a higher grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in: (i) the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or (ii) the processing or approval of the promotion list established on the basis of that report. (B) The adjusted DOR applicable to the grade of an officer under subparagraph (A) shall be consistent: (i) with the officer's position on the promotion list for that grade and competitive category when additional officers in that grade and competitive category were needed; and (ii) with compliance with the applicable authorized strengths for officers in that grade and competitive category. (C) The adjusted DOR applicable to the grade of an officer under subparagraph (A) shall be the effective date for: (i) the officer's pay and allowances for that grade; and (ii) the officer's position on the active-duty list. 
 
4.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), in effect at the time, prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). This regulation supports the objectives of the Army's officer promotion system that provides for career progression based on recognition of an officer's potential to serve in positions of increased responsibility. 
 
 a.  Paragraph 3-16 (Selection board recommendations), a. Promotion selection boards will do the following: 
 
• base their recommendations on impartial consideration of all officers eligible for consideration as instructed in the Memorandum of Instruction (MOI)  

• keep confidential their reasons for recommending or not recommending any officer considered 

• for commissioned officers use one of the following methods of selection as directed by the MOI: 


 
(a) For all other grades except CW3 and CW4 when the maximum number of officers 
to be selected, as established by the SA, equals or exceeds the number of officers above, in, and below the promotion zone. Although the law requires that officers (other than warrant officers) recommended for promotion be "best qualified" for promotion, when the number to be recommended equals the number to be considered an officer who is fully qualified for promotion is also best qualified for promotion. Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade. The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill. (b) The "best qualified" method when the board must recommend fewer than the total number of officers to be 
considered for promotion. However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion. As specified in the MOI for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion. 
 
 b.  Paragraph 3-19 (Promotion Reconsideration Boards), a. 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 SSB, as appropriate. (2) SSBs, convened under the Reserve Officer Personnel Management Act 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 do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996. b. Promotion advisory boards/SSBs will convene as noted in paragraph 3-5. c. These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records: (1) Through error, were not submitted to a mandatory promotion selection board for consideration. (2) Contained a material error when reviewed by the mandatory selection board. h. Non-selection by a SSB will be considered a failure of selection for promotion if the officer, or former officer through administrative error, had not been considered for selection for promotion by the appropriate regularly convened mandatory board. Non-selection by a SSB of an officer or former officer who was a previous failure of selection by a mandatory board will be considered confirmation of the action of the regularly convened board. Such an officer or former officer will not incur an additional failure of selection for promotion from the action of the SSB. 
 
 c.  Paragraph 3-22 (Correction of military records as a result of a SSB action), If the report of a SSB, approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion, or a former officer whose name was referred to it, the SA may act through the Army Board for Correction of Military Records (ABCMR) to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer. 
 
 d.  Paragraph 4-15 (Date of Promotion), Procedures in section IV will be followed for officers who delay promotion. Follow the procedures in this section in computing effective promotion dates for all other RC commissioned officers serving on the RASL and WOs do not antedate effective dates of promotion unless required by law. a. Except as noted in subparagraph c below, or in parts of this regulation, the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued. Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  
 
 e.  Paragraph 4-21 (Effective Dates), d. Promotion of AGR officers. AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 
 
//NOTHING FOLLOWS//