MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  29 August 2000
	DOCKET NUMBER:  AR2000037537

	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. John D. Miller		Chairperson	
	Mr. Charles Gainer		Member	
	Mr. Roger W. Able		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, promotion reconsideration to major by a special selection board (SSB).

APPLICANT STATES:  That his officer evaluation report (OER) for the period ending 5 February 1999 should have been allowed to be reviewed.  He submits copies of his career timeline, promotion orders, the contested OER and the unit notifications of the 1999 board in support of his application.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  Information was obtained from the Office of Reserve Promotions, Total Army Personnel Command (PERSCOM) and documentation submitted by the applicant that show:

The applicant was serving in the Reserve and promoted to captain effective 9 May 1992.  Based on the required 7 years time in grade, his maximum time in grade for promotion to major was 8 May 1999.

He was considered and not selected for promotion to major by the 1998 and 1999 Reserve Components Selection Board (RCSB), which convened on 24 March 1998 and 3 March 1999, respectively.

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 nonconsideration or material error which existed in the records 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 nonselection 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 nonselection, except where an individual is not qualified due to non-completion of required military schooling.

The regulation also provides that individuals twice not selected for promotion to major will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

Departmental policy specifies that all evaluation reports prepared for personnel under consideration must be completed 90 days prior to review by a selection board.

A Departmental Message dated September 1998, Subject: 1999 Zone of Consideration for Promotion to Reserve of the Army, Major Promotion List specifies that the required through date for promotion reports will be 3 December 1998 and those reports that do not fall within that window date can not be used as a basis for reconsideration by a SSB.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion the applicant was considered for promotion to major by the 1999 RCSB and not recommended.  The OER ending 5 February 1999 is not a basis for consideration by a SSB because it is a complete the record OER and must have a through date of 3 December 1998, in accordance with the zone of consideration message. Based on this information, it is recommended his request be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 25 May 2000.  He did not respond.

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 reconsideration to major under 1999 criteria by an SSB.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The board has noted his contention that his files did not contain an OER ending 5 February 1999 for promotion review.  However, this OER is not a basis for consideration by an SSB, as it must have a through date of 3 December 1998 and those reports that do not fall within this window cannot be used as a basis for reconsideration by an SSB.  The convening date of the 1999 board was 3 March 1999, and the applicant’s OER was for the period 5 September 1998 through 5 February 1999.  Pertinent regulations show that OER’s must be completed 90 days prior to the convening dates of respective RCSB to be reviewed by those boards.

3.  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.

4.  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

__jm__  __cg___  ___ra_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037537	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000829	
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.