MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  7 December 2000
	DOCKET NUMBER:  AR2000037506

	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. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest P. Lutz		Member	
	Mr. John P. Infante		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 to major.

APPLICANT STATES:  He was selected for promotion by a special selection board (SSB) in 1997 and the action was later rescinded and his promotion was ultimately denied.  He was denied promotion on the basis that he submitted forged officer evaluation reports (OER’s), and as a result, he was charged with misconduct and voluntarily requested assignment to the Retired Reserve.  He regretfully admits he engaged in some acts that were improper, however his actions were the direct result of long-term dereliction and outright misconduct by his chain of command with respect to his OER’s.  He submits a detailed statement in support of his request.

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

While serving as a captain in the Reserve, he was considered and not selected for promotion to major by the 1995 and 1996 Reserve Components Selection Boards (RCSB’s).

When the boards reviewed his records, they contained material error.

On 9 October 1996, the Army Board for Correction of Military Records (ABCMR) (AC96-09577) directed his files be submitted to a special selection board (SSB).

He was considered and recommended for promotion to major by an SSB that convened on 25 November 1996.

On 7 February 1998, his command advised the Total Army Personnel Command (PERSCOM) that there were some problems with annotations on the applicant’s contested OER’s, i.e., differences in typeface, dates, subtle differences in signature and a lack of any administrative notations.  It was further advised that the applicant had made some improper decisions in an effort to preserve his career.  His command directed that he not be placed in an appropriate troop program unit for promotion and the promotion selection be withdrawn.  

On 25 March 1998, he was notified that his records were screened to ascertain if he had become unqualified prior to promotion to the next higher grade.  The notification also advised that he had received a Report to Suspend Favorable Personnel Actions submitted by the 561st Support Group on 7 February 1998.  Therefore, his records would be submitted to a Department of the Army (DA) Promotion Review Board for reconsideration of his promotion eligibility.

On 10 August 1998, the DA Promotion Review Board recommended removal of the applicant’s name from the USAR Promotion List.

On 20 April 1999, after consulting with counsel, the applicant acknowledged a proposed involuntary separation and elected to voluntarily resign and transfer to the Retired Reserve in lieu of involuntary separation.  He also waived his rights to appear before a board of officers.

He was transferred to the Retired Reserve in the grade of captain effective 13 June 1999.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation further specifies that an officer’s or a former officer’s records will be referred for SSB action when the ABCMR requests such a referral.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was not selected for promotion to major by the 1995 and 1996 RCSB.  Based on missing OER’s his file was submitted to an SSB that adjourned on 25 November 1996 and he was recommended for promotion to major.

In the ABCMR proceedings dated 21 January 1997, it was directed that the applicant be promoted, provided he was otherwise qualified.  Prior to the promotion becoming effective it was found that the applicant had fraudulently altered some of his OER’s.  The SSB saw the OER’s without knowledge of their lack of authenticity.  DA policy required promotion lists be screened to determine if officers thereon may have become unqualified for promotion.  Because of the fraudulent evaluation reports, his file was submitted to a DA Promotion Review Board on 10 August 1998 to determine if his name should remain on the promotion list.  The promotion review board determined that he should not be promoted.  The Secretary of the Army is the approval authority for removing the name of an officer from a mandatory board selection list.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 3 September 1999.  The applicant responded on 3 January 2000, by submitting another application requesting promotion to major.

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 to major as a result of his selection by an SSB.  He has not shown error, injustice, or inequity for the relief he now requests.
2.  The Board has noted his contentions that the long-term delay by his command led him to take the wrong course to deal with his unit’s error. However, the applicant chose not to appeal his evaluation reports in accordance with pertinent regulations.  Instead, he elected to alter them himself, against regulations and good principle and judgement.  His conduct in this matter is unacceptable.  He was therefore selected for promotion based on fraudulent records and he should not now receive a promotion on that basis.

3.  Notwithstanding the advisory opinion received from PERSCOM, the Board directed that the applicant be given an opportunity for promotion consideration by an SSB in accordance with Army Regulation 135-155.  The ABCMR’s referral for reconsideration is not a promotion for the individual.  The results of the DA Promotion Review Board are processed to the Secretary of the Army and the ABCMR has no play in that process.

4.  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 this requirement.

5.  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

__ro____  __el____  ___ji____  DENY APPLICATION

		       Carl W. S. Chun
	                                        Director, Army Board for Correction
	                                                      of Military Records

INDEX

CASE ID	AR2000037506	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
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.	131.00	
2.		
3.		
4.		
5.		
6.