MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            13 January 1999                 
	DOCKET NUMBER:   AC98-08944

	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. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		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.

APPLICANT STATES:  That he should be reconsidered because of a personal injury in early 1991 that required major surgery and physical therapy.  Due to the injury he was not able to join a Reserve unit.  He further states that he never received notification so that he could update his records before review by any promotion boards.

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

He was appointed in the Reserve from ROTC as a second lieutenant effective 13 May 1978.  He entered on active duty on 28 January 1980 and was promoted to temporary Army of the United States (AUS) first lieutenant effective 4 March 1981.

He was promoted in the Reserve to first lieutenant effective 6 June 1981.

He was promoted to AUS captain on 1 July 1983.  His promotion eligibility date (PED) for promotion to major was 31 June 1990.

He was notified in a memorandum dated 31 March 1989 from the DA Active Duty Board (DAADB) of his consideration and selection for release from active duty by reason of degree of efficiency and manner of performance.

On 21 April 1989, he acknowledged receipt of the notification and selected a separation date of 14 July 1989.

He was released from active duty on 14 July 1989 for failure to meet minimum standards of retention and transferred to the USAR Control Group (Reinforcement).

His last officer evaluation report (OER) was for the period 9 October 1988 through 9 July 1989.

He was considered but not selected for promotion to major by the 1990 and 1991 Reserve Components Selection Boards (RCSB’s).  The reason(s) was not divulged by the board except that it was not for a lack of military education.

His records were complete and without material error when reviewed by the 1990 and 1991 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.

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.  Lack of notification does not provide an independent basis to be reconsidered by a standby board.

The regulation provides that in order to be qualified for promotion to major, an individual must have completed 7 years time in grade as a captain on or before the convening date of the respective promotion board; and that upon a nonselection by a promotion board an individual’s PED will be adjusted by 1 year, accordingly; and that individuals will received mandatory promotion consideration prior to their PED’s so that, if selected, they may be promoted on their future PED.

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.

Army Regulation 635-100 provides the policies and procedures for separating officers from active duty.  Paragraph 3-49, section XII of this regulation specifies that officers will be involuntarily released from active duty on the recommendation of the DAADB when their degree of efficiency and manner of performance require such action.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion (COPY ATTACHED) that the applicant was considered by the 1990 and 1991 RCSB’s and nonselected.  Based on available information, it has been determined that there has been no participation since 1989.  The fact that he claims he was not notified of his consideration for the promotion is not a basis for reconsideration.  His medical injury occurred after both boards therefore, played no part in his nonselection.  He recommended 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 promotion reconsideration to major.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that a personal injury involving major surgery and physical therapy prevented active participation has been noted by the board; however, the applicant failed to maintain an active Reserve status since 1989 and the applicant’s injury occurred in 1991 and did not contribute to his nonparticipation. He is clearly not competitive for promotion without active participation in the Reserve and without OER’s.  All officers are considered for promotion to the higher grade based on qualifications and potential.

3.  The Board also notes that pursuit of a Reserve career as a citizen-soldier requires discipline and sacrifice.  All Reserve officers have the same opportunity and challenges to both actively participate in the Reserve as a soldier, and to pursue their interests and demands as a civilian.  He knew, or should have known, that promotion is not automatic, and that failure to participate and advance would lead to discharge.  He can not now expect reconsideration without participation and having a competitive record for promotion to major. 

4.  The Board further notes his contention that he was never notified that his records would be reviewed by a promotion board; however, lack of notification is not a basis for reconsideration.  

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.  Given that the applicant became a captain in 1983 and that he had to be considered by an RCSB so that, if selected, he could be promoted by 
the time he had served 7 years in grade, the applicant knew, or should have known, that he would be considered by an RCSB in 1990 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.

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.
request.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

TNK____  WTM____  MVT ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-08944	
SUFFIX		
RECON		
DATE BOARDED	1999 January 13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1989 July 14	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.