MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 October 1998                  
	DOCKET NUMBER:   AC98-06566

	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	
	Ms. Karol A. Kennedy		Member	
	Mr. Lester Echols		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 lieutenant colonel as a “below the zone” officer, based on his adjusted date of rank of 24 June 1992.  He further requests that if not selected during reconsideration, this consideration not be considered as a passover for promotion.

APPLICANT STATES:  He submitted a DD Form 149, Application for Correction of Military Records in 1986 to correct his mandatory removal date and date of rank, extracting 6 years, 4 months and 20 days assigned to the Retired Reserve.  Adjustments were approved and made to his personnel record but were not reflected during promotion board’s review.  He submits a copy of his personnel record in support of his application.

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

He was appointed in the Army National Guard on 7 November 1973 as a second lieutenant with an effective date of 20 May 1973, with prior enlisted service.  

He was promoted to first lieutenant effective 19 May 1976 and captain effective 3 November 1978.  

Promotion Orders dated 10 June 1985 promoted the applicant to major with an effective date of 2 November 1985.

On 30 September 1985, the applicant elected to decline the promotion.  The declination was approved for 2 years (2November 1985 through 1 November 1987).

He was promoted to major effective 2 February 1986.  Based on the required 7 years time in grade, his promotion eligibility date for to LTC was 1 February 1993.

He was separated from the ARNG effective 21 August 1988 and transferred to the USAR Control Group (Retired).

He was reassigned to the USAR Control Group (Reinforcement) effective 11 January 1995.  Based on his retired status for 6 years, 6 months and 20 days, his date of rank was adjusted to 22 August 1992 and his promotion eligibility date to 21 August 1999.

He was considered and not selected for promotion to lieutenant colonel by the 1996 Reserve Components Selection Board (RCSB).  He was considered and selected for promotion by the 1997 RCSB.

A review of the applicant’s records revealed that based on adjustments to his date of rank and promotion eligibility date that he was not in the zone of consideration for the 1996 and 1997 RCSB’s. 

Army Regulation 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 records 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 such error(s) been corrected at the time of the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

This regulation does not provide for reconsideration for below the zone promotions.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion (COPY ATTACHED) that the applicant does not have a basis for consideration by a special selection board for below the zone promotion consideration.  The Secretary of the Army may, when the needs of the Army require, authorize officers for below the zone promotion considerations.  No below the zone promotion considerations have been authorized.  He further opined that the applicant was promoted to major on 2 February 1986 and based on the 7 years time in grade requirement he would have been eligible for promotion consideration by the 1992 and 1993 RCSB’s.  He was in a Retired status for 6 years, 6 months and 20 days; therefore, his date of rank was adjusted to 22 August 1992 and his promotion eligibility date to 21 August 1999.  The applicant was erroneously considered for promotion by the 1996 and 1997 RCSB’s selection boards with a promotion eligibility date of 1 February 1993.  Based on the adjustment of his date or rank and promotion eligibility date he was not in the zone for consideration by those boards; 
therefore, the applicant’s name has been deleted from the selection boards official results.  The earliest board the applicant is eligible to be considered by is the 1998 board.  His files have been identified to that board and he will be notified of the results when they are approved for release.  In view of the facts presented, he recommended that the applicant’s request be denied.

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 the circumstances in this case, the applicant is not entitled to below the zone promotion consideration to LTC.  Pertinent regulations do not permit below the zone reconsideration.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions that his date of rank was adjusted to 24 June 1992 is not supported by his application or his records.

3.  The Board further notes that his records were reviewed by the 1996 and 1997 RCSB’s; however, he was not in the zone for consideration and his name has been deleted from the official results.  The official record will then show the applicant was not considered by those boards.  The first board for which the applicant is eligible is the 1998 board.  The applicant has been identified to that board and will be notified of the results when they are ready for release.

4.  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.

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

RVC____  KAK_____  LE_____  DENY APPLICATION

						Loren G. Harrell
						Director