MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  7 June 2000
	DOCKET NUMBER:   AR2000038654

	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:

	Ms. Margaret Patterson		Chairperson	
	Mr. James P. Stueve		Member	
	Mr. Edwin S. Castle		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 reconsideration to captain.

APPLICANT STATES:  That his promotion packet contained incorrect education and physical training (PT) information at the time of the promotion board.  He further states that his host unit took no follow-up action on civilian education.  

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board, information was obtained from alternate sources and documentation submitted by the applicant which show:

He was appointed in the Reserve, Signal Corps as a second lieutenant effective 16 May 1987.  He had prior enlisted service.  He was promoted to first lieutenant effective 26 May 1990.

His record shows he received an adverse officer evaluation report (OER) for the period ending 4 October 1992.  His senior rater commented that the applicant should continue in his current capacity to prove his interest to continue in the USAR program.  He was rated below center of mass.

The OER was adverse and referred to the applicant as such, and his records do not show an OER appeal.

His OER’s show he maintained an appropriate level of physical fitness.

Based on the required 4 years time in grade, his promotion eligibility date for captain was 25 May 1994.

He was considered and not selected for promotion to captain by the 1994 and 1995 Reserve Components Selection Boards (RCSB’s).  The boards did not divulge the reason(s) except that it was not for a lack of military or civilian education.

A review of his records by the Office of Reserve Promotions shows he was involuntarily discharged for promotion non-selection effective 21 March 2000.

His records were complete and without material error when reviewed by the RCSB’s.  His records did not contain any incorrect PT information or other material error when reviewed by the boards.  

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (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 noncompletion of required education.

This regulation also specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other corrections.  Lack of notification does not provide an independent basis to be reconsidered by an SSB.

Army Regulation 135-175 prescribes the policies and procedures for the separation of Reserve officers.  This regulation provides that individuals twice not selected for promotion to captain 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.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides for appeal of contested OER's directly to the Department.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

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.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to captain 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 his records contained incorrect education and PT information, and that his host unit took no follow-up action on civilian education.  However, at the time of the first promotion board his file contained an adverse OER and that adverse OER may have caused his non-selections by the 1994 and 1995 RCSB’s.  The Board further notes that at the time of his promotion considerations he was not required to possess a BA degree and incorrect PT information would not be a mandatory basis for his non-selections.  The specific reasons for his non-selections are not known to the Board, as selection boards do not divulge the reason for non-selection. 

3.  The Board also notes that the applicant was aware that the first promotion board and possibly the second would review the adverse OER and there was the possibility that based on his record he would not get selected for promotion.

4.  The Board concludes that while his records show his qualification for promotion, it also contains discriminators for non-selection, i.e., an adverse and referred OER.

5.  Implicit in the Army’s promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and working of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  The applicant needed to insure well in advance that his record would present his career and qualifications to that board in the best possible light.

6.  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.

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

__MP___  ___JS___  __EC____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038654	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.