MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           12 August 1999                  
	DOCKET NUMBER:   AR199913291

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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:  Promotion reconsideration to major by a special selection board and a stay of promotion proceedings and all adverse actions until claims are resolved.

APPLICANT STATES:  He was the subject of a deliberate campaign to remove his security clearance and he was denied duty necessary for promotion and retention.  He submits a detailed memorandum dated 15 July 1998 with attached exhibits in support of his application.

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

He was appointed in the Reserve as a second lieutenant effective 20 April 1984. He was promoted to first lieutenant effective 20 April 1987.

His records revealed he did not receive officer evaluation reports (OER’s) for the periods 5 February through 2 August 1985 and 5 October 1986 through 10 September 1987.

On 13 October 1990 an adverse OER for the period 20 July 1989 through 16 July 1990 was referred to the applicant.  His records do not show whether he responded.

He was promoted to captain effective 18 April 1991.  His promotion eligibility date for major was 17 April 1998.

He was considered but nonselected for promotion to major by the 1997 and 1998 Reserve Components Selection Boards (RCSB’s).

When his records were reviewed they contained material error.  Not all of his OER’s were seen by the board.

Army Regulation (AR) 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which 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, except where an individual is not qualified due to noncompletion of required military schooling.

It also provides that individuals twice not selected for promotion to major will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

This regulation also specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other corrections.  And that an administrative error was immaterial if the officer in exercising reasonable diligence could have discovered the error or omission and taken timely corrective action notifying Headquarters, Department of the Army with supporting documentation.

Army Regulation 15-185 establishes procedures for making application, and the consideration of applications, for the correction of military records by the Secretary of the Army acting through this Board.  Paragraph 9 of the regulation specifies that an application to the Board will not operate as a stay of any proceedings being taken with respect to the person involved.

The Chief, Promotion and Notification Branch, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), expressed the opinion (COPY ATTACHED) that a review of the applicant’s records revealed that it was incomplete when considered by the 1997 and 1998 RCSB’s.  When his file was considered, documentation of OER’s were missing from his files.  Normally, this would constitute a basis for reconsideration by a special selection board; however, the officer has not responded to two notifications from this office as to whether they should schedule him for a board in the near future, or wait for a verdict on a court case.  No response has been received.  Based on the facts presented, it was recommended that the applicant’s request be disapproved.

The opinion was forwarded to the applicant for his acknowledgement/rebuttal on 10 June 1999.  He did not respond.

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

1.  In view of all the circumstances in this case, the applicant is not entitled to promotion reconsideration to major by a special selection board at this time or to retention and a stay of promotion proceedings.  He has not shown error or injustice for the relief he now requests.

2.  The board has noted that his files when reviewed by the 1997 and 1998 RCSB’s did not contain all of his OER’s.  However, it is further noted that the applicant was contacted twice concerning scheduling him for a special selection board or wait for a verdict in his court case, but did not respond.

3.  The Board also noted that promotion and retention is keenly competitive, and that many officers will not be selected, and that while his record may not be competitive for selection purposes, it also contains discriminators for nonselection, i.e., no OER’s for several rating periods and an adverse OER.

4.  The applicant is not entitled to retention in the active Reserve based on this request or to a court petition.

5.  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 system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  The applicant needed to insure well in advance that his record would present his career and qualifications to that board in the best possible light.  Promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual’s potential and ability to perform at the higher grade.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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

rvo_____  jma______  mw_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013291	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 12	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.131.00		
2.		
3.		
4.		
5.		
6.