MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           5 December 2000
DOCKET NUMBER:   AR2000042567

	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	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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:  Reconsideration of his application to correct his records by reinstating him in the Reserves, deleting all references to his two non-selections for promotion, promoting him to lieutenant colonel, correcting his records to show that he attended Phase II of Command and General Staff Course (CGSC) and/or retiring him as a lieutenant colonel with 20 years of commissioned service.

APPLICANT STATES:  In effect, that he was non-selected for promotion due to erroneously being flagged for having failed a body fat determination.  He states that in January of 1997 he applied for orders to CGSC and was required to undergo a routine height, weight and body fat measurement.  He contends that the measurements were done improperly and that even after he had attained the required weight loss he was still improperly measured and again told that he had failed the test.  He states that his unit fitness officer had measured him and found him to be within required standards the week before his retest.  (None of these tests are of record.)  He contends that his evaluations show that he met the body fat requirements.  He continues to state that this erroneous flag prevented him from attending Phase II of the CGSC, which in turn resulted in his being twice passed over for promotion.  He states that the prior Board review was flawed in that he was never a warrant officer, that he had nothing but high marks on his Officer Evaluation Reports (OERs) and that none were either mediocre or adverse.  He contends that he was misled as to the flagging of his records and that it appears that his command failed to properly prepare his file for promotion consideration.

The applicant submits copies of two Body Fat Content worksheets (DA Form 5500-R) dated 4 March 1997 and 19 March 1999, his 19 March 1999 Report of Medical Examination; a form letter (ARPC FL 3244-2) advising him of his options following his second non-selection for promotion and a copy of his Chronological Statement of Retirement Points.  He also submits 19 OERs covering February 1980 to September 1996.  There are no available copies of his OERs for the last three years of service.

COUNSEL STATES:  In effect, that the applicant never received any referred OERs and that his OERs show he was an exemplary officer.  Counsel further contends that, when the applicant was notified of his options, he elected to be continued in order to complete 20 years as a commissioned officer.  Counsel states that the applicant should be reinstated and/or granted the compensatory time to retire after 20 years of commissioned service.  Counsel submits that the errors in the prior review raise a question of the validity of the applicant’s record that was referred for promotion and reviewed by the Board.  Counsel states that all reasonable doubt should be resolved on behalf of the applicant.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference is the memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR1999031174) on 12 April 2000.

The Board finds that the prior review of this case was flawed, that the applicant was never a warrant officer nor were any of his Officer Evaluation Reports (OER) officially adverse.  Because of the questions raised by these errors pertinent details of the applicant’s record of service are displayed as follows:

The applicant enlisted in the Army Reserve National Guard (ARNG) in 1970.  He served four years in the ARNG before transferring to the Army Reserves in 1974.  In 1980 he was commissioned and continued to serve until 30 August 1999 at which time he was transferred to the Retired Reserves.  He was promoted to major in 1993.  His Chronological Statement of Retirement Points (ARPC Form 249-2-E) shows that the applicant had creditable years of enlisted service as 4 years in the ARNG, 6 years in the Army Reserves and 16 years as a Reserve Officer for a total of 26 qualifying years for Reserve retirement.

The applicant’s Official Military Personal File (OMPF) is limited in the nature of items and does not contain any information of any of the actions taken that lead to the applicant’s release from service.

The 4 March 1997 DA Form 5500-R, shows the applicant’s weight as 239 pounds with 24. 9% body fat and a 19 March 1999 DA Form 5500-R shows a weight of 232 pounds with 23.2% body fat.  There is a quarter inch difference of neck measurement and a three-quarter inch difference at the waist between these two reports that are two years apart.  There is no evidence of the applicant’s reported application to CGSC or any body fat determination made in concert with such an application. 

The evidence submitted by the applicant shows that over the years of his service his weight ranged from 190 to 239 pounds.  In an undated statement the applicant indicates that the body fat findings, that resulted in the flagging action, showed that he had 26.5%.  The maximum weight for a six-foot tall male in the applicant’s age group is 203 pounds or 26% body fat.

The form letter, ARPC FL 3244-2, notified the applicant of regulations and options following his second non-selection for promotion and that he must be separated unless he met one of three categories.  The back or election side of the form, in block 1, indicates that as the applicant was in the excepted category of paragraph 2a, that he was eligible for transfer to the Retired Reserve.  It directed that he indicate his election from one of the options listed below in the elections block, complete the informational section below it, sign the form and 

return it to personnel by mail.  The option block for a request to be retained to complete 20 years of commissioned service is marked.  However, he failed to complete the address information or to sign and date the form.

The applicant’s records show that he served as an officer from 7 January 1980 until 30 August 1999.  He submits OERs for the years 1980 to 1996.  During this 16-year period the applicant had 19 evaluations.  A review of part IV (Performance Evaluation – Professionalism) of these OERs shows that his raters gave him predominantly 1s.  However, on approximately half of his evaluations he received either a 2 or 3 rating in block 3 (maintains appropriate level of physical fitness) and/or block 12 (possesses military bearing and appearance).  In part Vb, he was rated as always exceeding requirements only 5 times (all but one of those in the rank of lieutenant or below) with the other 14 ratings in the usually meeting requirements block.  Under part Vd he received 4 recommendations to be promoted ahead of his contemporaries (again as a lieutenant or below) and the other 15 ratings were indicating he should be promoted with his contemporaries.  It is noted that his senior raters rated him at or below center of mass.  He received only 1 above center of mass rating.  The following is the distribution of block entries by the senior raters: no top blocks, 3 -second block, 7 - third block, 2 - fourth block and 7 - fifth block evaluations.  This equates to a career average of a fourth block assessment by his senior raters.  

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 may only be based on erroneous non-consideration or material error, which 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, except where an individual is not qualified due to non-completion of required military schooling.

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 lieutenant colonel 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 they will be discharged.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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.  The evidence of record does not support the arguments and allegations of the applicant and his counsel.  As noted in the prior decision the applicant has been unable to provide any evidence of the alleged erroneous report of body fat measurements or any flagging action.  The fact that he met the body fat requirements, at the time his evaluations were prepared, does not show what his status was at the time he allegedly applied for CGSC.  Further, the applicant has submitted no evidence that his non-selection for promotion was due to non-attendance at Phase II of the CGSC.

2.  By his own admission, the applicant was on the weight reduction program following the time he allegedly applied for CGSC, Phase II.  In this situation he should have been flagged.

3.  As noted in the prior review, the applicant’s evaluations may reflect good verbal comments and rater scores, however, his average senior rater ranking was at or below center of mass.  Further even when the applicant was the only officer rated he received third or fourth block evaluations from his senior rater.

4.  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 workings of the system are widely known and specific details such as Reserve Component Selection Board (RCSB) dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  Given that the applicant became a major in 1993 and that he had to be considered by an RCSB so that, if selected, he could be promoted by the time he had served 7 years in grade, the applicant knew, or should have known, that he would be considered by an RCSB in 1996.  It was his obligation to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light not his command’s.

5.  The Board does not dispute that he may have a competitive record.  However, it notes that promotion and retention is not automatic based on qualifications alone, but includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade, and the needs of the service.  The Board also notes that promotion and retention in the Reserves is keenly competitive and that many officers will not be selected.  Particularly pertinent in this case is that at this time the Army was undergoing drawdown and had to separate many officers, including those with competitive records.  With keen competition for retention, many officers will not be selected.

6.  The Board notes that the election of options block contains responses under three different potential statuses.  Continuing on active duty to reach 20 years of commissioned service (the option he chose) was not a valid option for the applicant.  Regulations provide for an extension of service only in cases of personnel who have less than 20 years of qualifying service for Reserve retirement, or for prior enlisted personnel with less than 10 years of service as a commissioned officer.  The applicant was already qualified for retirement as a commissioned officer.

7.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

8.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

9.  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

_ANC___  __ALR__   ___JAM__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042567	
SUFFIX		
RECON	 	
DATE BOARDED	2000042567	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.