MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 January 1999                  
	DOCKET NUMBER:   AC98-07791

	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:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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 and retention.

APPLICANT STATES:  That once he was reactivated in January 1996 he was not permitted to become educationally qualified before he was considered for promotion.  He further states that neither board had or considered numerous awards or two favorable officer evaluation reports (OER’s) received since January 1996.  He submits a comprehensive memorandum and other documentation in support of his application.

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

He was appointed in the Reserve from ROTC as a second lieutenant effective 17 July 1984.  He entered on active duty, Judge Advocate General’s Corps on 8 July 1988.  He was promoted to captain (AUS) on 1 February 1989.

He was released from active duty on 8 July 1992 and transferred to the USAR Control Group (Reinforcement).

He was ordered to active on 6 January 1996 in support of Operation Joint Endeavor.  He was separated on 5 September 1996.

His record shows he received an OER for the period 15 January through 15 June 1996.  This report was completed on 3 July 1996 and filed on his official military personnel file on 20 October 1996, subsequent to the 1996 RCSB.

He was considered but nonselected for promotion to major by the 1996 and 1997 Reserve Components Selection Boards (RCSB’s) which convened on 12 March 1996 and 11 March 1997.  He was not qualified for promotion based on the lack of the required military education.

On 10 June 1996, he was notified of his first nonselection.  The notification memorandum advised him that a possible reason for his nonselection may have been that his record, when reviewed by the board, did not reveal he had completed the military education requirement.

His record also shows he received an OER for the period 30 August 1996 through 29 August 1997.  This report was completed on 7 September 1997 and filed on his OMPF on 21 January 1998, after the convening dates of the 1996 and 1997 RCSB’s.

He enrolled in February 1997 and completed the Judge Advocate Officer Advanced Course (OAC) on 16 January 1998, after the convening dates of the RCSB. 

His records were complete and without material error when reviewed by the 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 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.

The regulation further specifies 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.

The regulation specifies that in order to be qualified for promotion to major an individual must have completed 7 years of time in grade as a captain, and 12 years of promotion service, and completion of any OAC on or before the convening date of the respective promotion board.

The regulation also specifies that material error does not exist when letters or memorandums of appreciation, commendations, or other commendatory data for awards below the Silver Star are missing from the officer’s OMPF.

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.

ROPMA, a public law enacted by Congress on 5 October 1994 prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component Officers.  The law became effective 1 October 1996.  Under 

ROPMA consideration of selection for promotion to major will remain in the officer’s sixth year time in grade in the current grade for promotion not later than the seventh year time in grade in the current grade.

ROPMA further specifies that individuals twice not selected for promotion to major are subject to the appropriate separation provisions and guaranteed retirement under ROPMA.  Officers must remain aware that “commissioned service” is not synonymous with “retirement qualifying years”.  “Commissioned service” is that time subsequent to an officer’s appointment as a commissioned officer.  This time is credited toward the officer’s total authorized service for his or her grade (20 years for captains).  However, under ROPMA, the Secretary of the Army may determine that the Reserve of the Army required the services of captains who are twice not selected.  The Secretary then may authorize, at the his discretion, the convening of a selective continuation board and that officers must apply for consideration.  If the board’s recommendation is approved by the Secretary, a captain may serve until the last day of the month in which he or she completes 20 years commissioned service.

Official records and promotion board procedures require that Departmental Senior Rater Profiles be affixed to OER’s prior to filing in an individual’s records and completed 90 days prior to review by a selection board.

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.  The applicant’s file contained all of his pertinent documents when it was reviewed by the 1996 and 1997 RCSB’s and he was not educationally qualified.  The applicant had 7 years to become educationally qualified and there is no verification that he attempted to pursue the advanced course until April 1997.  Due to the fact the OER ending 15 June 1996 is after the convening date of the 1996 RCSB, it would not be a basis for special board consideration.  If the applicant had been 
educationally qualified, the report would be a basis for consideration under the 1997 criteria.  The report ending 29 August 1997, is after both boards; therefore, 

it is not a basis for special board consideration.  The other documents submitted are not bases for consideration under Army Regulation 135-155, paragraph
3-14.  In view of the facts presented, he recommended that the applicant’s request be disapproved.

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 promotion reconsideration to major and retention.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that he was not permitted to become educationally qualified before the promotion boards, has been noted by the board.  However, the Board notes that the applicant had since 1 February 1989, his promotion date to captain, to complete any OAC and prepare himself for promotion consideration in 1996 and 1997, a period of more that 7 years.  His first nonselection showed him and his superiors that he was failing in his military education qualification.

3.  His contention that his records did not contain two favorable OER’s has also been noted by the board; however the contested OER ending 15 June 1996 was not eligible for review by the 1996 RCSB and the OER ending 29 August 1997 was completed after both RCSB’s, and OER’s must be completed 90 days prior to the convening dates of respective RCSB to be reviewed by those boards.  

4.  The Board further notes his contention that numerous awards were not reviewed by the promotion boards.  However, his record was complete and without material error when reviewed by the 1996 and 1997 RCSB’s.  Pertinent regulation has specified that missing awards data below the Silver Star is not considered material error.  

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 working 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.  He knew or should have known of the long standing regulatory requirements for promotion to major.

6.  He is not qualified or entitled to retention.  In this case, pertinent laws and regulations clearly show that after a second nonselection, a captain must be transferred to the Retired Reserve if they are eligible and request such transfer, receive approval from the Secretary of the Army to serve until the last day of the month upon completion of 20 years of commissioned service and/or discharged.

7.  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.

8.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-07791	
SUFFIX		
RECON	N/A	
DATE BOARDED	27 January 1999	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.