MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            4 February 1999                  
	DOCKET NUMBER:   AC98-08690
				   AR1999016940

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military records be corrected to show that he was promoted to the grade of lieutenant colonel (LTC) and retired in that grade.

APPLICANT STATES:  "That there were repeated direct violations of Federal law, Army regulations, Army directives, and established operating procedures resulting in non-selection for promotion to lieutenant colonel."  In essence, he contends that an Officer Evaluation Report (OER) covering the period 6 July 1982 through 12 December 1982 was not properly referred to him; that he was not properly notified of an involuntary Area of Concentration (AOC) reclassification; and that his commander, the Commander, Fitzsimons Army Medical Center (FAMC), failed to notify him of the scheduling and related actions involving the 1994 LTC promotion board.  Further detail is outlined in his application and in an attached two page letter with 43 enclosures.

COUNSEL CONTENDS:  Counsel supports the contentions of the applicant, but furnishes no evidence beyond that of record.

EVIDENCE OF RECORD:  The applicant's military records show:

During the period of time in question, the applicant was serving in the grade of captain at the 5th General Hospital in Germany.  

His OER for the period 12 July 1980 through 11 July 1981 shows that he was serving in AOC 67A as a hospital administrative assistant.  Part IV, Performance Evaluation - Professionalism, shows that his rating officer (RO) rated him "1" in all 14 areas.  In Part V, Performance and Potential Evaluation, he was rated in Part Vb as Always Exceeding Requirements, and in Part Vd as Promote Ahead of Contemporaries.  In Part VII, Senior Rater (SR), he was rated in the top block.

The next OER, for the period covering 12 July 1981 through 6 July 1982 reflects that the applicant was serving as an ambulatory care administrator; and that he received the same ratings as shown above in the previous OER.

The contested OER, covering the period 6 July 1982 through 12 December 
1982, shows that the applicant was still serving as an ambulatory care administrator; and that he was rated by the same officer; however, in Part Vb, the RO rated him as Usually Exceeded Requirements, in Part Vd as Promote With Contemporaries, and in Part VII, he was rated in the three block.  Comments by the RO include "He has accomplished the majority of tasks assigned to him in a timely and proficient manner" and "[He] works well under supervision" and "His keen intelligence, attention to detail and interest in finance indicates that he would excel in the comptroller field."  The SR commented, in part, "[His] performance of duties as an Ambulatory Care Administrator has been generally acceptable and he should continue to be considered a career AMEDD (Army Medical Department) officer with great potential."  The SR further commented that future assignment considerations should include positions that would provide experience which would develop skills in prioritization of projects, decision making, project tracking and follow-up.  Education as a comptroller and subsequent assignment as a staff officer would meet this requirement."

On 1 May 1986 he was promoted to the grade of major.  His Officer Record Brief shows that he subsequently served in Europe as a budget officer, a budget program officer, and as a health services comptroller.

On 12 March 1990 he was notified by the Chief, Medical Service Corps (MSC) Branch, Total Army Personnel Command (PERSCOM), that following an in-depth study to determine MSC specialty needs by grade, and after a thorough review of his record (which includes an MBA degree), the applicant was to be reclassified to AOC 67C (health services comptroller).  

He was considered but not recommended for promotion to LTC by Departmental duly scheduled promotion selection boards.

On 12 October 1994 he was notified by the Chief, Promotions Branch, PERSCOM, that his request for promotion reconsideration was disapproved.

On 28 December 1994 the applicant was again notified by the Chief, Promotions Branch, PERSCOM, that his request for promotion reconsideration was disapproved.  He commented, in part, "In light of the fact that you were not selected for promotion in fiscal year 1991, 1992, and 1993, it is extremely hard to argue that there was a material error in your file" and "To claim that you failed to properly monitor the status of your records because no one told you of an impending board is to admit that you abrogated one of any officer's clearly understood personal responsibilities." 

On 13 March 1995 he was notified by the Office of the Inspector General, Washington, D.C. that following a thorough inquiry into his allegations (concerning his reclassification and subsequent promotion board consideration), it had been determined that he was properly reclassified; that he was properly considered for promotion but not selected; and that a review of the case shows "substantive due process was followed during the reclassification action and subsequent promotion consideration."  He was advised that if he still felt that an error or injustice occurred he could apply to this Board.

On 1 May 1995, with 20 years active duty service, he was retired.

On 28 April 1998 he submitted an application to this Board.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted. 

Army Regulation 600-8-29/624-100 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection.

The aforementioned regulation provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  As contended, the contested OER should have been referred to the applicant. However, approximately 3 years after the closing date of the contested OER, the applicant was promoted to the grade of major; and there is no evidence of record that the applicant requested a Commander's Inquiry or made any attempt to timely appeal this error.  Further, it is very unlikely that this single OER which reflected his performance of duty as a captain in 1982 would be the sole basis for his nonselection for promotion to the grade of LTC in 1991, 1992, 1993 and 1994.  Accordingly, absent a reasonable chance that the applicant would have been selected for promotion, granting him promotion reconsideration would not be appropriate.

2.  The applicant, whose record reflects an MBA in business administration and experience in AOC 67C, was properly reclassified into that AOC following an 
in-depth study by the Army in order to meet MSC specialty needs by grade.  Further, there is no record of dispute by the applicant at the time.

3.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the promotion system are widely known and specific details such as board dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  Given that the applicant became a major in 1986 and was a career Army officer, the applicant knew, or should have known without specific advice from his commander, that he would be considered for promotion to LTC and that he needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.

4.  The foregoing is supported by documents signed by the Chief, Promotions Branch, PERSCOM, and the Inspector General.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JHL_____  AAO____  VBC ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-08690	
SUFFIX	NA	
RECON	NA	
DATE BOARDED	1999 February 04	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.