MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 September 2000                   
	DOCKET NUMBER:   AR2000038543

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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:  That his records be reconsidered for promotion to captain, 0-3.

APPLICANT STATES:  That he was recently notified that he was being involuntarily separated due to a second passover to captain.  He was under the impression that he was approved for promotion to captain.  His unit administrator discovered that none of his civilian/military education or officer evaluation reports (OERs) were on record for the boards’ reviews.  He was not afforded the opportunity to submit any documentation to the promotion board for consideration that surely would have resulted in his being promoted with his peers back in 1993.  Supporting evidence is as listed on the DD Form 149 except only one OER for the period ending 30 April 1994 is submitted.  The other “OER” is an academic evaluation report for his infantry officer basic course for the period ending 16 March 1990.

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

After having had prior commissioned service in the U. S. Air Force, he was appointed a second lieutenant in the Army National Guard on 3 October 1989.  He was promoted to first lieutenant on 3 May 1990.  He was separated from the Army National Guard on 1 December 1990 and transferred to the U. S. Army Reserve (USAR), Ready Reserve Control Group (Reinforcement) (IRR). 

The applicant’s Official Military Personnel File (OMPF) shows one OER on file for the period 3 October 1989 through 2 October 1990.  In part IVa, he received two “2” ratings (with “1” meaning to the highest degree and “5” to the lowest degree) in the areas of “displays sound judgment” and “seeks self-improvement.”  In part IVb he received three negative comments.  His performance was rated as “met requirements” and his potential as “promote with contemporaries.”  His senior rater gave him a center-of-mass rating (1/2/7*/1/0/0/0/0/0, *indicating the applicant’s rating).  

The only other OER in the applicant’s OMPF is for the period 29 November 1993 through 30 April 1994.  In part IVa, he received one “2” rating in the area of ”clear and concise in written communication.”  His performance was rated as “always exceeded requirements” and his potential as “promote ahead of contemporaries.”
There are no negative comments but both rater and senior rater comments are lackluster.  His senior rater gave him a center-of-mass, (8/18*/8/1/1/1/1/0/0), rating.

The applicant was considered for promotion to captain by mandatory promotion boards in 1993 and 1994 and was not selected for promotion.  

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and to commissioned and warrant officers of the USAR.  In pertinent parts, it states that first lieutenants will be considered by a mandatory board and, if determined to be qualified for promotion, promoted to the next higher grade when they have four years in the lower grade.  An officer who twice fails to be selected for promotion to the grades of 0-3, 0-4 or 0-5 will not be considered again for promotion.

Army Regulation 140-10 covers policy and procedures for assigning, removing and transferring USAR soldiers.  Chapter 7 provides for the removal from an active status of officers nonselected for promotion after their second consideration.  On 21 August 2000, the Army Reserve Personnel Command (AR-PERSCOM) confirmed that it is possible for an officer who was nonselected for the second time in 1994 to just now being notified of his two-time nonselection.  Apparently, their “system” is only now catching up with certain actions.

Department of the Army Pamphlet 600-3 is intended as a professional development guide for individual officers.  It applies to all commissioned officers of the Active Army, the Army National Guard, and the USAR.  In pertinent part, it states that officers in many respects are ultimately their own career managers.  The key is to be involved in career development by making informed logical decisions and acting on them.  One important element of an officer’s involvement is the accurate reflection of capabilities in the official military personnel files maintained by Headquarters, Department of the Army.  The OMPF, Officer Record Brief and career management individual file contain the data from which important career development decisions are made for selection, advancement, assignment and retention.  Officers should review, update and maintain these records throughout their careers.

The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

In the processing of this case, an advisory opinion was obtained from the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended denial of the applicant’s request.  That office confirmed that he had been considered by the 1993 and 1994 Captain Department of the Army Reserve Components Selection Board and not recommended but the files are no longer available for review.  It was determined that he was educationally qualified at the time so he was not passed over for education.  Information from his unit indicating that several documents were not on record for the boards’ reviews is not necessarily true as the unit is not the sole means of obtaining the necessary documentation to complete a promotion board file.  The applicant had over 6 years to inquire as to why he was not selected for promotion.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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, 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 this requirement.

2.  As Department of the Army Pamphlet 600-3 states, an officer’s career is largely in his or her own hands.  As a commissioned officer, the applicant should have been aware of when he was first eligible for consideration for promotion to captain.  Even though the Office of Promotions, Reserve Components asserts that his records were most likely complete at the time the boards reviewed them, he could have taken “reasonable diligence” to ensure this was so.  “Reasonable diligence” would have consisted of requesting a copy of his OMPF some months prior to the board if it had not already been provided him, reviewing it and correcting it as necessary, keeping in touch with one’s branch manager to ensure necessary corrections, if needed, were made.  It is even re-requesting a copy of the OMPF weeks prior to the board to personally ensure those corrections have been made.  There is no evidence to show that the applicant did anything of this sort or needed to do anything of this sort.

3.  The Board does not agree with the applicant’s contention that had he been afforded the opportunity to submit documentation to the promotion board for consideration (and, as the Board noted above, he did have that opportunity) that he surely would have been promoted with his peers back in 1993.  The Board notes that the first OER in the applicant’s file contains several negative comments and less than maximum ratings.  His only other OER is several years later and also does not contain the maximum ratings in part IVa and, while there are no negative comments, the comments are lackluster.  There are no OERs for the periods in between these two in his OMPF and he provides none that would show he received such OERs but they were not filed.  Whether he received OERs for these periods and they just were not filed or whether he performed no duties that would require the submission of an OER, this gap did not serve to increase his competitiveness with his peers.  In addition, his records were considered during a period of drawdown, making promotions even more competitive.

4.  The Board concludes that the Government error which occurred in the applicant not being notified of his involuntary separation due to his second nonselection for promotion until 6 years after the event is an immaterial error and did not work to the applicant’s detriment.

5.  Due to the passage of time, pertinent information has been lost or destroyed; therefore; favorable consideration is barred by laches.

6.  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

__cla___  __wtm___  __tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038543	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.