PROCEEDINGS

	IN THE CASE OF: 
	     -  -

	BOARD DATE:  25 October 2000
	DOCKET NUMBER:  AR2000034930

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes 		Chairperson	
	Ms. JoAnn H. Langston		Member	
	Ms. Karol A. Kennedy		Member	
	Mr. Mark D. Manning		Member	
	Mr. John Saputo		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)
	Exhibit C – Case Summary
	Exhibit D – Live Testimony and evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his military records be corrected to promote him to lieutenant colonel (LTC) with appropriate date of rank and pay and allowances, or in the alternative, reconsideration for promotion to LTC with an updated photograph and branch qualification.

3.  The applicant states that he is represented by counsel who will present his contentions.

4.  The applicant’s counsel contends that the applicant’s records were seen by a LTC promotion board without benefit of showing he was branch qualified and that he did not have a current photograph showing his Shoulder Sleeve Insignia (SSI) – Current Organization.  Counsel provided a comprehensive brief in support of the applicant’s request, including 44 exhibits.  On 13 April 2000, he provided a rebuttal to the Total Army Personnel Command (PERSCOM) advisory opinion, identified as exhibit 45.  On 1 September 2000, he provided a letter of support for his case, identified as exhibit 46.  On 7 September 2000, he provided a copy of the PERSCOM “Home Page”, dated 23 May 2000, for inclusion in his request, and identified as exhibit 47.  On 7 September 2000, he provided a copy of a PERSCOM memorandum, which identifies a person who has provided a letter of support as a member of the Fiscal Year (FY) 2001 LTC Command Selection Board, identified as exhibit 48.  On 25 October 2000, counsel for the applicant presented exhibits 49 through 52 to the Chairperson of the Board.  They are a Career History of the applicant, his latest Officer Evaluation Report (OER) and copies of the “old” and “new” photographs, for comparison.

5.  On 18 December 1998, in a memorandum for majors eligible for consideration by the FY99 LTC Promotion Board, signed by the Chief, Infantry Branch, PERSCOM, he was advised to send a new photograph (within 1 year of the board).  It was explained that the DA Photo is normally the first document board members review.

6.  The FY99, LTC Selection Board considered the applicant for promotion and he was not selected.

7.  On 4 August 1999, in incomplete e-Mail correspondence, a major in the Infantry Branch, PERSCOM, advised the applicant that his assignment as the   S-3, United States Military Academy Preparatory School (USMAPS) was no longer counted for branch qualification.

8.  On 10 August 1999, the applicant’s battalion commander indicated that he had been told by a LTC in the Infantry Branch, PERSCOM that he was not selected because he was not branch qualified prior to the convening of the FY99 LTC Board.

9.  On 28 September 1999, the former assistant commandant of the USMAPS indicated the position of S-3 had been considered the same for branch qualification as any other S-3 position for infantry officers.

10.  On 15 February 2000, the Commander, PERSCOM opined that the applicant was occupying a qualified position on the general’s staff for operations (S-3) and he was fully branch qualified when considered for promotion by the FY99 LTC Board.  Further, the board saw a year old official photograph.  It was recommended that the application be denied, since the applicant’s records were complete and without material error when reviewed by the selection board.

11.  On 24 February 2000, the PERSCOM opinion was furnished to the applicant for his acknowledgment/rebuttal.

12.  On 13 April 2000, the applicant’s counsel rebutted the PERSCOM opinion.  Counsel insists the board saw the applicant’s records as not being branch qualified.  Further, the board saw a photograph with his former SSI, not one from his current assignment.

13. The FY00, LTC Selection Board considered the applicant for promotion and he was not selected.

14.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error; the fact that action by a previous board was contrary to law, or because material error existed in the record 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 non-selection 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 non-selection.

15.  Photograph errors or absence are not material error.  An example of material error is the absence of a Silver Star award or OER.

16.  Army Regulation 640-30 (Photographs for Military Personnel Files) indicates, in pertinent part, that a major is required to update his official photograph every  5 years or when photographs no longer represent their present appearance.

17.  A formal hearing was held on 25 October 2000.  The applicant was in attendance with counsel, and participated in the proceedings. 

18.  During the proceedings, counsel made reference to the applicant’s completion, in residence, of the Command and General Staff College; to selected favorable comments from his OER’s; and to his duties as a commander and tactical officer of the United States Military Academy Preparatory School.

19.  During the proceedings, counsel introduced additional exhibits showing the applicant’s assignments throughout his career; an OER for the period                25 December 1999 to 15 June 2000 showing his duties of his current assignment as the Chief, Ranger Operations Cell to the Army Special Operations Command. He offered an explanation to justify his center of mass rating on his OER. 

20.  Counsel provided copies of both photographs in question and emphasized the difference by pointing out additional awards, the difference in the SSI, and the dates of the photographs.

21.  In addition to the foregoing, counsel emphasized the unfairness in the applicant’s case by advising him he was branch qualified for promotion purposes when he was not so qualified, causing his non-selection for promotion.

CONCLUSIONS:

1.  This Board is of the opinion that the applicant has been unjustly denied promotion to LTC by being erroneously advised that he was branch qualified as of the date of the FY99 LTC Promotion Board.  Upon conclusion of the selection board, individual officers in the Infantry Branch, PERSCOM advised the applicant and his battalion commander that the reason for his non-selection was that he was not branch qualified. 

2.  Notwithstanding an opinion obtained from the Infantry Branch indicating he was branch qualified prior to and after the LTC board, Branch officials informed him by phone he was not qualified.  The Branch continued to assign the applicant as if he were branch qualified after his first non-selection and did not take appropriate action to remedy their error.

3.  The applicant forwarded a current photograph and his Branch acknowledged receipt in sufficient time to allow it to be seen by the FY99 LTC Selection Board; however, due to malfeasance by Branch officers, the board saw an old photograph (14 months old) which did not have the fifth award of the Meritorious Service Medal, and the second award of the Joint Meritorious Unit Award.  Additionally, his SSI was of the First ROTC Region, his former unit of assignment and not of his current unit of assignment, the 82nd Airborne Division.  Although the presence of a 14 month old photograph may not be a material error, the failure of his Branch to provide the most current photograph to the promotion board was, at least, deceiving, and in error and unjust.

4.  This officer was given bad advice from his Branch that he was branch qualified and he proceeded to make his career decisions accordingly by acting on that advice.

5.  This officer asked several times prior to the selection board if he was branch qualified and told each time that he was.  It was after his non-selection that officer and civilian personnel in his Branch told him that he was not, without any explanation of how they arrived at this conclusion.  Promotion boards do not give reasons for non-selection.

6.  Although not a contention by the applicant, this Board found his OER’s to be inconsistent in the numerical and written evaluation, without further discussion concerning appeal or relief.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing the individual concerned was promoted to lieutenant colonel by the appropriate Departmental officials, as though he was selected for promotion by the FY99 Promotion Selection Board, with an appropriate date of rank, and appropriate back pay and allowances.

Dissent:  One member of the Board dissented to so much of the foregoing as pertains to promotion.  The Board member recommended reconsideration for promotion by a Special Selection Board with an updated photograph and branch qualification, as the applicant requested as an alternative to promotion.  The member opined that the applicant should not be promoted without the normal competition with his peers.

		____Erin J. Olmes_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000034930	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001025	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.131	Promotion	
2.		
3.		
4.		
5.		
6.