MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  24 October 2000
	DOCKET NUMBER:  AR2000042766

	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. John T. Meixell		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 colonel by a special selection board (SSB) under 1999 criteria.

APPLICANT STATES:  His promotion file did not contain his last two officer evaluation reports (OER’s), reflected him as a Black minority and not an American Indian and his mandatory removal date (MRD) should show 31 December 2008.  He submits a copy of his Personnel Qualification Record and OER’s for the periods ending 7 March and 29 September 1999 in support of his request.

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

He was appointed in the Reserve as a second lieutenant effective 13 May 1972.

He attained the rank of lieutenant colonel effective 7 February 1994.

He was considered and not selected for promotion to colonel by the 1998 and 1999 Reserve Components Selection Boards (RCSB’s).  The boards convened on 14 July 1998 and 13 July 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 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.

Official records and promotion board procedures require that Departmental Senior Rater Profiles be affixed to OER’s prior to filing in an individual’s records and completed 90 days prior to review by a selection board.

This regulation 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.  And that an administrative error was immaterial if the officer in exercising reasonable diligence could have discovered the error or omission and taken timely corrective action notifying Headquarters, Department of the Army with supporting documentation.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that when the applicant’s file was viewed by the 1999 RCSB it indicated his race as Black and his MRD as 13 June 2000.  However, the errors to his file are not material error that would have caused his non-selection for promotion.  The reasons for his non-selection are not known, as selection boards do not record their reasons for selecting or non-selecting officers for promotion.  It is known that his file contained all of his pertinent documents when the 1999 selection board viewed it.  The OER ending 7 March 1999 was viewed by the board as a paper document and the report ending 29 September 1999 is after the convening date of the selection board; therefore, they are not a basis for special board consideration.

The Office of Promotions further determined that the applicant is eligible for special board consideration under the 1998 criteria.  His file viewed by the 1998 selection board did not include his OER ending 7 March 1998; therefore, his file will be submitted to a special board under the 1998 criteria and he will be notified of the results upon the board’s approval and release.  In view of the facts presented, it is recommended that the applicant’s request for SSB consideration under 1999 criteria be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 13 September 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 colonel under 1999 criteria by an SSB.  He has not shown error, injustice, or inequity for the relief he requested.

2.  The Board has noted his contention that his files did not contain two OER’s. However the OER ending 7 March 1999 was viewed by the 1999 RCSB as a paper document and the report ending 29 September 1999 is after the convening date of the selection board and therefore, not a basis for special board consideration.

3.  The Board also notes that his promotion file reflected him as Black and not American Indian, and showed his MRD as 13 June 2000 when it was viewed by the 1999 RCSB; however, these errors to his file are not material errors and would not be a basis for a special board.

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 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 lieutenant colonel in 1994 and that he had to be considered by an RCSB so that, if selected, he could be promoted by the time he had served 5 years in grade, the applicant knew, or should have known, that he would be considered by an RCSB in 1998 and 1999 and that he needed to insure, well in advance, that his record was correct and up to date for the respective board’s review.

5.  The Board concludes that the applicant’s file contained all of his pertinent documents and he is not eligible for promotion reconsideration under 1999 criteria.

6.  The Board further notes that the applicant has a basis for reconsideration under 1998 criteria, as his files contained material error, an OER for the period ending 7 March 1998 was not seen by the 1998 board.  The applicant has been scheduled for reconsideration and will be notified of the results upon the board’s approval and release.

7.  Pertinent regulations show that OER’s must be completed 90 days prior to the convening dates of respective RCSB’s to be reviewed by those boards.

8.  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.

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

__mp___  ___jm___  __ec___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042766	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
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.