MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            20 April 2000                 
	DOCKET NUMBER:   AR1999026488

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Mr. 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:  Reconsideration of his request for reinstating him to active duty and promotion to pay grade E-5 and then to  pay grade E-6.   

APPLICANT STATES:  In essence, through his Representative in Congress, that he was not permitted to be considered for the promotion to pay grade E-5. 

 EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in memoranda prepared to reflect the Board's original consideration of his case on 19 November 1997 and a second consideration on 19 August 1998.  (COPIES ATTACHED)

The applicant submits through his Representative in Congress a letter, dated 
3 August 1988, written by the Assistant Chief of the Urology Clinic, Walter Reed Army Medical Center (WRAMC), which stated to the Representative that he believed that the applicant was not properly treated in relation to his consideration for promotion and separation; five pages of correspondence and accounting by the Defense Finance and Accounting Service showing errors in Federal income tax forms issued to the applicant for Tax Years 1995 and 1997;  a counseling form at the time of his transfer from Company B (WRAMC) to Company C (WRAMC) on 1 February 1995 essentially encouraging him to do well in his new command; a 20 January 1995 memorandum from the Director, Urology Stone Center (WRAMC) to his unit commander recommending the applicant for promotion to pay grade E-5; two memorandums dated in January and February 1999 in which a Clinical Nurse Supervisor and a the Command Sergeant Major of the Medical Command, which both attested to his outstanding performance of duty while assigned to the Medical Advanced Care Unit for 
6 months in 1994 and the Urology Clinic at the WRAMC in 1995; and finally, an Inspector General Action Request (DA Form 1559-R) in which he requested Inspector General assistance on 13 September 1994 in reference to his promotion status to pay grade E-5.    

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.  The January 1995 memorandum and the August 1998 letter to the Representative in Congress concerning the applicant’s promotions status were actually from the same individual, one when he was a lieutenant colonel, the other one after promotion to the rank of colonel.  Both these documents were seen by the last Board  which reviewed his case and are not considered new material evidence.

2.  The documents concerning his tax status show a tax filing problem in 1995 and 1997, but are not germane to the question of promotion and reinstatement while on active duty.  
3.  The other documents submitted tend to show that he performed his professional duties in an apparently highly satisfactory manner as seen by two supervisors.  However, these documents do not provide an overall assessment of his fitness for promotion to the next higher rank.  A soldier being promoted must demonstrate a capability to perform his or her duty in the higher position.  The rank of sergeant, at pay grade E-5 is a leadership position.  The soldier, while being fully qualified on paper as to test scores, schools completed and the like, may not have the potential to perform his or her leadership duties in an acceptable manner.  Recommendation for promotion is a command prerogative, not that of supervisors.  Therefore, if the applicant did not demonstrate to his commanders that he had the potential for satisfactory performance of duty at the next higher grade, then the commanders were within their rights not to recommend him for promotion.  

4.  The Board is not in a position to interpose its judgement for that of the commanders on the ground, and has repeatedly denied similar cases where commanders have determined that an individual soldier is not fit or ready for promotion at the time.

5.  While it is unfortunate that the applicant had completed 8 years of service at the time this matter came to conclusion, it also appears to the Board that he should have been well aware of his vulnerability for separation at the 8-year service point.  Further, he was given additional time in service, beyond the 8-year point, apparently as an exception to normal policy, to attain promotion status which he did not attain.  Therefore, the Board must conclude that he was given every opportunity to be considered for promotion and no error or injustice as to his promotion potential has occurred in this case.  His separation was mandatory in that he had served well past his retention control point.  

6.  In summary then, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decisions.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__wtm___  ___ra___  __mvt___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AC1999026488	
SUFFIX		
RECON	19971119 and19980819 	
DATE BOARDED	20000420	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19951024	
DISCHARGE AUTHORITY	AR 635-200, Para 16-8 	
DISCHARGE REASON	A05.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	110.03	
3.	A01.03	
4.	A92.17	
5.	A94.11	
6.