MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 February 1999                  
	DOCKET NUMBER:   AC98-06821
                                              AR1998013909

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Clderon		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:  In effect, correction of his military records to show that he was promoted to the rank of colonel, Army Reserve (USAR), back pay and allowances at that rank, with retirement point credit from July 1995 until the present time, removal of a DA Form 67-8 (Officer Evaluation Report) for the rating period 941003-950717, and to process a recommendation for award of the Bronze Star Medal (BSM), later amended to request the upgrade of the award to a BSM vice the award of an Army Commendation Medal (ARCOM) that he received.

APPLICANT STATES:  In essence, that he was illegally transferred from his Troop Program Unit (TPU) assignment in a USAR unit in July 1995 to the IRR because he complained to the Inspector General (IG).  This deprived him of pay, allowances and USAR retirement points because he was no longer an active drilling Reservist.  As the result of this inquiry, he was unfairly denied an opportunity to compete for a unit vacancy promotion to the rank of colonel.  In fact the unit vacancy was filled by another officer for approximately 2 years so he could become qualified in the military occupational specialty (MOS).  Officers serving in a unit vacancy are more likely to be promoted than an officer competing in the normal USAR promotion selection process (95 percent versus 50 to 60 percent).  The OER for the rating period 941003-950717 was not consistent with his past five ratings and was in retaliation for his refusal to voluntarily transfer to the Individual Ready Reserve (IRR) and for his complaint to the IG.  This report will affect his chances for promotion.  Finally, he states that a DA Form 638 (Recommendation for Award) for award of the BSM for service in Southeast Asia was lost or mishandled on three occasions.  Subsequent to his original submission to this Board, he submitted documentation to show that the award was downgraded to the ARCOM instead of the BSM.  He believes that the delay in the proper handling of the award and the unfamiliarity of the nature of the service performed by the approving officials caused the downgrade of the award.

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

He was appointed and commissioned as a second lieutenant, Signal Corps, USAR, from the Reserve Officer’s Training Corps (ROTC) program, on
26 January 1971.  He served for 3 years on active duty between March 1971 and March 1974, then continued to serve in the USAR.  During the period of service under review, he was serving as a lieutenant colonel (LTC) in the USAR with the 321st Material Management Center (321st MMC) in Louisiana.  His primary MOS was 25A (General Signal Officer), with additional MOS’s of 25C (Communications Electronic Officer) and 53B (Hardware Engineer).  He was promoted to the rank of LTC on 23 January 1991.  He served in a temporary duty (TDY) status in Saudi Arabia from January through July 1991.  Between September 1991 and July 1995, the applicant had a variety of assignments with the 321st MMC to include duties as an Automation Management Officer (MOS 53C), Systems Automation Acquisition Officer (MOS 53B), Automotive Division Chief (MOS 91B), Electronic Material Officer (MOS 25A) and as a Plans and Procedures Officer (MOS 90A), this latter position from June 1994.  His designated specialty throughout this period was MOS 53B (Hardware Engineer). In July 1994, he requested award of MOS 90A as his primary specialty, but there is no record of what action was taken on this request in his records.  He claims that he requested such a change even earlier, in February 1994, but there is no record of this action available to the Board.

Also during this period (1991-1995), the applicant claims that a new position (the Assistant Chief of Staff for Information Management, a colonel’s position) was created in the next senior headquarters to the MMC, the 377th Theater Army Area Command (TAACOM) in 1993.  He claims that he was fully qualified for this position, was promised consideration for the position, but that the commander of the TAACOM placed another LTC (an Adjutant General Corps officer) in the position.  He complained to the TAACOM’s chief of staff, and was promised an opportunity to compete for the vacancy through the USAR Unit Vacancy Board process.  Later, he found out that the vacancy board would meet, and he had not been offered the opportunity to submit his request for consideration.  He attributed this problem to his MMC commander.  In any case, he was able to submit a packet, but apparently was not selected.  

The applicant claims that he had a meeting with the MMC commander on 18 July 1995 in which he was “ordered” to sign a voluntary request (DA Form 4156-R) for transfer to the IRR.  He refused.  On the same date, orders were issued by the TAACOM involuntarily transferring him to the IRR, based on his failure to be “branch/functional area qualification for an assigned TPU position (AR 140-10, paragraph 4-5b)”.  On the same date, the applicant submitted a complaint to the IG of the 377th TAACOM, that the order to sign the DA Form 4156-R was an illegal order.  On 6 July 1996, after several inquiries, the applicant was notified by the TAACOM IG that the investigation had been completed and that his complaint was unfounded.  He was not qualified for continuation in the TPU essentially, because he had not become MOS qualified within 3 years after assignment to the 321st MMC.  The applicant challenged the decision and requested reopening of the investigation, which was denied.  Note:  The IG’s investigation is on file at the Department of the Army, but is not available to the Board.  The applicant can request a “redacted” copy of the report under the Freedom of Information Act which he has not done.  He then could submit the report to the Board if he so desires.  

The applicant was reassigned to the IRR on 18 July 1995.  His Mandatory Release Date (MRD) is February 1999.  He has been considered in three successive years for promotion in the USAR to the rank of colonel, but was not selected.  The results of promotion selection board deliberations are not maintained or available for review by this Board by operation of law and Army Regulation 135-155, paragraph 3-9.

In connection with his release from active duty, an OER was rendered on the applicant for the rating period 3 October 1994 through 17 July 1995.  In Part IV, Performance Evaluation-Professionalism, completed by his rater, the remark provided to item a8-(Displays Sound Judgement) with a 2 rating (1 being the highest rating, 5 the lowest) states:  “Does not objectively evaluate evidence and conditions”; item a12-(Possess Military Bearing and Appearance-68/213-Yes) with a 2 rating states:  “Within bodyfat standards of AR 600-9”; and item b1, (Dedication), the statement is made:  “Does not consistently put forth that extra degree of effort required in fast-paced environment.”  His rater stated that he normally exceeded requirements in Part V-Performance and Potential Evaluation, and that he should be promoted with his contemporaries.  The senior rater’s rating in Part VIIa was in the second block, which was a below center-of-mass report (Senior Rater Profile was 14 in the top block, 14 in the second block).  There is no indication with his application or in his records that he has ever appealed this report in conformance with AR 623-105.  

The evidence of record and with his application supports his claim that a recommendation for award of the BSM for service in Saudi Arabia during Operation Desert Shield/Storm of the period 17 January to 8 March 1991 was lost and never submitted.  The recommendation was reconstituted and resubmitted on 12 March 1995.  It apparently was lost or misrouted again, but finally was submitted to the Department of the Army sometime in 1996.  On 
10 January 1997, the applicant was notified by the Chief, Awards Branch, Total Army Personnel Command (PERSCOM), that the recommendation for award of the BSM had been reviewed by the Department of the Army Decorations Board and was essentially downgraded to an ARCOM.  The appropriate orders and certificate were issued and provided to the applicant.

Army Regulation 140-10, at paragraph 4-5b, states that an officer may be involuntarily assigned from a TPU to the IRR if he or she is considered not to be branch or functional area qualified as outlined in AR 611-101.  

Army Regulation 611-101, states, in pertinent part in paragraph 1-39, that when an officer is not branch or functional area qualified after 3 years, that he or she may be reassigned to a position and specialty for which qualified.  In the case of USAR officers, they may be transferred to a different control group in accordance with Army Regulation 140-10.  

Army Regulation 623-l05, at chapter 9, provides that an officer may appeal an OER which he or she feels is incorrect, unjust or otherwise inaccurate.  These requests are to be sent to the Department of the Army Officer Special Review Board located within the office of the Deputy Chief of Staff for Personnel.  For USAR officers, they will be sent through the Army Reserve Personnel Command. The cited regulation contains detailed guidance and details for making such an appeal.  Appeals must be submitted within 5 years from when the report was rendered.  

Paragraph 8, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application (or matters therein) if it determines that the applicant has not exhausted all the administrative remedies available to him or her.  

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

1.  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.

2.  The Board will not speculate as to why an officer is or is not selected for promotion.  The applicant has provided no evidence that his records were incorrect or incomplete at the time they were considered by USAR Promotion Selection Boards.  Therefore, there is no basis provided for the Board to conclude that he was not fairly considered and evaluated for promotion to the rank of colonel in the USAR.

3.  Likewise, there has been no evidence provided that the applicant was unfairly treated at the time of his transfer from his TPU to the IRR.  In the absence of evidence to the contrary, and in conformance with a presumption of regularity in government operations, the Board concludes that no basis has been established to find that an injustice has occurred.  The applicant was not considered to be MOS or functional area qualified by his commander for the position in which he was serving.

4.  This conclusion is supported by the apparent finding by the Inspector General in 1996 that his claims of error or injustice was unfounded.  If the applicant believes otherwise, he may request a redacted copy of the report from the Department of the Army IG’s office and submit it to this Board for further consideration of this matter.

5.  The applicant has likewise failed to provide sufficient evidence that he was any more qualified for the information management officer’s position in the 377th TAACOM than the officer selected by the commander to fill that position.  The applicant apparently also competed for selection/promotion to that position by a Unit Vacancy Board and was not selected.  
6.  Since the applicant has not appealed the OER in question, the Board will not address this issue until after he has exhausted his administrative remedies.

7.  The Board notes the delay and apparent errors in submission of his recommendation for award of the BSM by his command after his participation in the war efforts in connection with Operation Desert Shield/Storm between January and March 1991.  However, the award recommendation was reconstituted and submitted to the Department of the Army Decoration Board.  This Board is made up of senior officers, many of whom participated in combat operations in Southeast Asia.  This Board will not impose it’s judgement in the place of the qualified membership of the Army Decoration Board.  

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

__SC ___  __JLP___  __JMA_ _  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-06821/AR1998013909	
SUFFIX		
RECON		
DATE BOARDED	19990225	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	135.01	
2.	111.01	
3.	131.10	
4.	128.14	
5.	107.00	
6.