MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 April 1999
	DOCKET NUMBER:   AR1999020057

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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, that he be promoted to the rank of colonel effective the date of his non-selection to the rank of colonel, that he be placed on the Retired list in the rank of colonel, and that he be paid all back pay and allowances due him.

APPLICANT STATES:  In effect, that his personnel records did not reflect that he was a former prisoner of war (POW) during WWII, that his records indicate that he served in the Far East Command (FECOM) but does not indicate that it was combat service in Korea, that his indorser did not properly indicate his accomplishments of serving as a commander of a battalion size equivalent unit on his officer evaluation report (OER), and he had several classified OER’s that did not reflect his true potential and performance.  Consequently, he was twice nonselected for promotion to the rank of colonel and was forced to retire.

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

The applicant enlisted in the Regular Army (then known as the Army Air Corps and subsequently became the Air Force) on 4 September 1942.  During the period 6 October 1944 to 29 April 1945 he was reported as missing in action.(MIA) over Germany when his plane was shot down and was subsequently declared a POW.  He was repatriated on 29 April 1945 and was awarded the Purple Heart for wounds received on 6 October 1944.  He continued to serve until he was honorably released from active duty on 23 October 1945.

He again enlisted in the Regular Army on 29 August 1949 and served until he was honorably discharged on 23 March 1950 upon completion of officers candidate school (OCS), to accept a Reserve commission as a second lieutenant on the following day with a concurrent call to active duty.

Upon completion of the field artillery officer basic course, he was transferred to Korea in the FECOM where his OER indicates he served in a combat artillery battalion (39th FA Bn).

He remained on active duty and was promoted to the rank of lieutenant colonel (LTC) in the Army of the United States (AUS) on 16 December 1965. 

 The applicant was considered for permanent Regular Army (RA) promotion to the rank of major by the 1970 and 1971 RA Promotion Selection Boards and the applicant’s chain of command sent letters of indorsement to the boards recommending his selection.  However, he was nonselected by both boards.

On 1 May 1971 the Office of the Adjutant General in Washington D.C. notified the applicant of his second nonselection and informed him that under the provisions of Title 10, US Code, section 3913, he was required to be separated no later than 1 August 1971.
Accordingly, he was honorably released from active duty in the rank of LTC on 31 July 1971 and was placed on the Retired list effective 1 August 1971.  He had served 25 years and 22 days of total active service.

A review of the applicant records shows that he received an OER covering the period 10 November 1969 to 9 November 1970 evaluating him as a commander of the 165th Military Intelligence Company.  The indorser’s comments indicate that although the report indicated that the applicant commanded a company, his responsibilities equated to that of a battalion command in other arms and combat support branches. 

His records also show that he submitted an appeal to an OER’s covering the period from 1 March 1967 to 23 December 1967 which was considered to contain adverse comments and was referred to him for reclama.  His appeal of that OER was denied.

Additionally, the applicant’s records show that he received several OER’s as a captain in which his duty position was deemed classified and a statement to that effect was included on the OER’s.

Department of the Army Standby Advisory Boards (STAB) are formed to prevent any injustice to officers or former officers who were eligible for promotion but whose records were, through error, not submitted to a promotion selection board for consideration or contained a material error when reviewed by the board.  In determining that a material error caused an officer’s nonselection by a promotion board, it must first be determined that one or more evaluation reports that should have been seen by a board (based on announced cut-off date) were missing from officer’s Official Military Personnel File (OMPF), that the officer’s military or civilian education was incorrect, or that the officer was awarded a Silver Star or higher that was missing from the officer’s OMPF.

Army Regulation 624-100 provides policy and procedures for the promotion of officers on active duty.  It states, in pertinent part, that an officer will not be reconsidered for promotion by a STAB when an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in their records.  The responsibility of the officer to review their records prior to board consideration and to write to a board in his or her own behalf is sufficient to overcome possible administrative deficiencies in the OMPF.

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.  While the passage of time (over 27 years) since the applicant was placed on the Retired list and when he submitted his application to the Board makes it difficult at best to determine if his records were properly constituted when they appeared before the promotion boards; based on the applicant’s contentions, it appears that his records were properly constituted and his contentions are without merit. 

3.  While the applicant’s official records do contain the fact that he was designated as a POW, the Board finds that this information, while not depicted to the applicant’s satisfaction, was not prejudicial to his nonselection for promotion as this occurred during his initial enlistment and prior to his being commissioned. The Board also notes that if the POW issue was prejudicial to his nonselection, he had over 20 years as a commissioned officer to correct his records and failed to do so.  Additionally, if such was the case, it is reasonable to presume that the absence of such information would have affected all of his promotions throughout his career.

4.  The Board finds that the applicant’s contentions that he had classified reports that did not accurately reflect his duty performance and potential for promotion also to be without merit.  Those reports were rendered while he served as a captain and did not hinder his promotion to the ranks of major or LTC.  Therefore, it is also reasonable to presume that they would have the same effect in future promotions.

5.  The applicant’s contention that his OER did not contain an adequate explanation of his responsibilities while serving as a commander of the 165th Military Intelligence Company also appears to be without merit.  The indorser clearly explained in the contested OER that the applicant actually had the responsibility of a commander of a battalion size unit.  While this may not be a sufficient explanation to satisfy the applicant, the Board is convinced that the indorser sufficiently met his responsibilities with his explanation.

6.  While the applicant contends that had he not been unjustly passed over for promotion to the rank of colonel he would have remained on active duty; the Board finds that in actuality, he was required to separate or request retirement under the law because he had been twice nonselected for permanent (RA) promotion to the rank of major.

7.  Given the passage of time that has occurred and the failure of the applicant to show through the evidence submitted with his application or the evidence of record, that he was unjustly or erroneously twice nonselected for permanent promotion to the rank of major; the Board will not attempt to second guess the promotion selection boards that nonselected him after having the benefit of reviewing his records and the records of all of his peers at the time.  Therefore, there is no basis to promote him either to the permanent (RA) rank of major or to the rank of colonel.

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

___cmf __  __sk____  ___gg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020057	
SUFFIX		
RECON		
DATE BOARDED	1999/04/21	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.   319	131.0900/ADV IN GRADE	
2.  320 	131.1000/PASSOVER	
3.		
4.		
5.		
6.