MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001
	DOCKET NUMBER:   AR2000042866

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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 the rank of major by a Department of the Army Special Selection Board (SSB) and that his date of rank to major be commensurate with the FY 99 Major, Army Promotion Board.  Also, he requests that a SSB be held to determined whether he should have been selected for the residence attendance at the Command & General Staff College (CGSC) by the FY 99 CGSC Selection Board.

APPLICANT STATES:  That the FY 99 Major’s and CGSC selection Board considered an inaccurate, incomplete, and misleading record of his military service.  He states that the officer evaluation report (OER) for the period 8 July 1998 thru 14 April 1999 was processed in a timely manner by his rating officials to be received in the Total Army Personnel Command (PERSCOM) prior to the date of the FY 99 Major’s and CGSC selection Board.  He states that this OER did not make it to his promotion file and was not considered by either the FY 99 Major or CGSC selection board.  He states that the selection boards considered 10 months of unrated time, that the absence of the OER was detrimental to his chances for promotion, and was unfair.  In support of his application he submits a letter of support, a copy of the OER for the period 8 July 1998 thru 14 April 1999, and a microfiche copy of his official military personnel file (OMPF).

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

The applicant is assigned to Fort Bragg, North Carolina in the rank of major.  His branch specialty is Acquisition Corps. 

The applicant received a permanent change of station report for the period 8 July 1998 thru 14 April 1999.

PERSCOM message number 99-068, Subject: FY 99 Major, Army Competitive Promotion Board Zones of Consideration, announced a selection Board will convene to consider captains for promotion to major.  The message stated that optional OERS must be received in the Evaluations Reports Branch, PERSCOM NLT 13 April 1999.  Also, the message provided the criteria for rating officials to initiate a code 11, promotion report and a code 21, complete the record report.

The applicant was considered by the FY 99 Major Pomotion Board and was not selected for promotion.  He was selected for promotion to major by the FY 2000 Major Promotion Board.

In the processing of this case an advisory opinion was obtained from the Chief of Promotions Branch, PERSCOM.  It opined, in effect that that promotion reconsideration is approved only for nonselected officers whose records contained a material error when they were considered by a promotion selection board.  A material error is defined as being of such nature that, in the judgement of the reviewing official, had it been corrected at the time the individual was considered by the Board that failed to recommend for promotion, it would have resulted in a chance the individual would have been recommended for promotion.  PERSCOM opined that a material error did not exist in the applicant’s file when he was considered but not recommended for promotion.

PERSCOM opined that the applicant’s report was processed by the Officer Evaluations Branch on 23 April 1999 and that it did not arrive before 13 April 1999, the cut-off date established in the zone of consideration message.  Also, the applicant’s OER was not a mandatory code 11 – promotion report and its absence from the file does not constitute a basis for promotion reconsideration.

A copy of the advisory opinion was provided to the applicant for comment.  The applicant responded that the advisory opinion did not consider that the missing OER was a top block OER and that the OER was not submitted in a timely manner due to the poor handling of his rating officials at the time.  He contends that PERSCOM did evaluate his rating officials comments for the late submission of the report.  However, PERSCOM chose to quote regulations to keep him from getting a fair look for promotion and demonstrates an error in the published process.

He contends that he had no control over the processing of the OER and it is was not his responsibility to track his OER for his rating officials.  He contends that he was selected for a new assignment that changed his OER from a promotion report to a change of rater report.  He contends that the change to a new assignment might have hindered the processing of his OER.

He states that he owes it to himself and to his family, after years of dedicated service in some of the most demanding commands in the Army, to try and right this error in his records.  The only way to correct this error is to have his promotion packet rebuilt and sent before the next promotion board, to have him considered by the promotion board and to have the promotion board select him for promotion to major, and then to correct his DOR to reflect the new promotion date. 

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3-45, provides, in pertinent part, that a officer who failed to be selected for promotion by an active-duty promotion board will receive a report prior to the next promotion board of the same type that will consider his or records.

Paragraph 3-34 of the same regulation provides that OERS must be forwarded to reach the Headquarters Department of the Army no later than 90 days after the ending day of the report. However, the centralized selection, promotion, and school boards schedule must be closely monitored to ensure eligible reports, both mandatory and optional reports are forwarded to Headquarters, Department of the Army, in sufficient time to be included in an officer’s board file.

Paragraph 3-53, of the same regulation provides that at the option of the rater, a report may be submitted on a rated officer who is about to be considered by a Department of the Army selection board for promotion (in or above the zone), project manager, school (CGSC), or command.  However, the rated officer must have served for a minimum of 90 days (excluding nonrated periods) in the same position under the same rater as of the date announced in the Department of the Army message announcing the zones of consideration.

Army Regulation 600-8-29 provides the policies and procedures for determining if the individuals are entitled to review by a SSB.  It states, in pertinent part, that in order to be eligible for review by a SSB, a determination must have been made that a material error existed, that had it been corrected prior to the time the officer was considered by a board that fail to recommend him or her for promotion, and it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Authority to approve cases for referral to the SSB is delegated to the Deputy Chief of Staff, or his designee, or the Officer Special Review Board (OSRB).

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.  The Board notes that the applicant’s OER for the period 8 July 1998 thru 
14 April 1999 was a permanent change of station report and was not considered a mandatory or optional report for required submission to the FY 99 Major’s Promotion Board. 

2.  The applicant’s contention that his OER was not processed in a timely manner lacks merit.  His OER was processed and received in PERSCOM on 
23 April 1999 in accordance with regulatory guidance.  Also, the ending date of the OER exceeded the required submission date of 13 April 1999 for all OERs to be received in PERSCOM prior to the convening of the promotion board.

3.  The applicant’s OERs historically show the applicant consistently was rated in the top block.  The Board found no evidence to support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the absence of his permanent change of station report was the sole reason for his nonselection to major.

4.  His contention that the promotion board reviewed his file with 10 months of unrated time has been noted by the board.  The Board concludes that the applicant’s unrated time is no different than any other soldier’s file that has unrated time prior to being considered by a promotion board.  Unrated periods are not at all uncommon occurrences and board members are aware that such periods exist.  

5.  The Board concurs with the advisory opinion that no material error existed in the applicant’s file when he was considered for promotion that would entitle him to a SSB in accordance regulatory guidance.

6.  Promotion boards are prohibited by law from divulging the reasons for selection or nonselection of any officer.  Therefore, the Board is reluctant to substitute its judgement for that of a promotion selection board.  

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

___JH___  __LE___  __KAH___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042866	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
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.	131.05	
2.		
3.		
4.		
5.		
6.