MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           22 February 2001                  
	DOCKET NUMBER:   AR2000042901

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		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:  Through counsel, that the applicant’s failure to be selected for promotion to lieutenant colonel (LTC) be set aside; that the applicant be considered for promotion to LTC by a Special Selection Board in the primary zone; and that if selected for promotion, that the applicant be given an effective date of promotion consistent with the Fiscal Year 1999 LTC Promotion Board and that he be given back pay and allowances.

APPLICANT STATES:  Through counsel, that the FY 1999 LTC Promotion Board violated Title 10, §1731 by failing to promote in zone of consideration Acquisition Corps (AC) officers according to law and Congressional intent; that the promotion board violated its Memorandum of Instruction (MOI) from the Secretary of the Army by failing to promote AC officers according to the MOI; and that the MOI was itself in violation of Title 10, §1731 since the MOI stated that AC officers are expected to be promoted at a rate not less than the rate for all officers, when the law states that AC officers are expected to be promoted at a rate not less than the rate for line officers.  In addition, the law established a requirement, not a goal, to promote AC officers at a rate similar to line officers.  Counsel argues that the fact that the 1999 LTC Promotion Board selection rate for AC officers was below that of both line officers and the officer corps as a whole makes the promotion board results illegal.  Counsel argues that if the law had been followed, the applicant would have certainly been selected for promotion based on his outstanding Officer Evaluation Reports (OER’s).

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

He enlisted on 6 April 1975, was awarded the military occupational specialty (MOS) of infantryman, and was promoted to pay grade E-5.  He immediately reenlisted on 12 December 1978, was awarded the MOS of air traffic control tower operator, and became a warrant officer (WO) candidate.  He was appointed a WO on 29 October 1981 and remained on active duty.  On 7 November 1984 he was appointed a second lieutenant.  He was promoted to major on 1 April 1995.

The applicant’s OER’s are all exemplary, with Senior Rater Profiles all above center of mass except for his OER covering the period 22 July 1989 through 20 June 1990.  That OER was an OER for the time the applicant was serving as a company commander.  He was given a center of mass Senior Rater Profile on that report.

On 9 January 1997 the applicant submitted a request for constructive credit for resident attendance of Command and General Staff College (C&GSC).  In that 

request the applicant stated that because of his prior enlisted and warrant officer service, he attained 14 years of active federal commissioned service (AFCS) on 1 October 1996.  Since C&GSC eligibility criteria is less than 14 years AFCS, he was not able to be considered for resident attendance of that school a fourth time.  He stated that he had completed the non-resident C&GSC course, but wanted credit for the resident course.  There is no evidence that his request was approved.

He was released from active duty as a major on 31 December 1999 and was retired for years of service the following day.

In the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Personnel (ODCSPER).  The ODCSPER stated that the applicant has misinterpreted the law governing the promotion of AC officers to mean that AC officers are required to be promoted at the same rate as line officers, where legal rulings have established that it is an objective.  The ODCSPER adds that if there were a statutory requirement to promote AC officers at the same rate as line officers, there would not be a provision in the statute that requires the Department of Defense to report discrepancies to Congress.  The ODCSPER opines that there was no material error in the convening, deliberations, adjournment or approval of the FY99 LTC Promotion Board, and recommends that the applicant’s request be disapproved.

The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In that rebuttal he states that the Army was negligent for not approving his request for constructive service for the C&GSC resident course.  He states that his performance file is indicative of an above average officer with the exception of one center of mass OER, an OER which he had intended to appeal but had decided against appealing after being advised that a successful appeal could be more damaging than an OER which was obviously out of sync with the rest of his file.  He adds that his last assignment involved him being assigned to a position which required him to perform duties outside his area of concentration, which was detrimental to his career, and the AC has historically experienced turbulence and mismanagement, which has resulted in the inadequate management of AC officers’ careers.  He concludes that these issues, as well as the Army’s misrepresentation of the intent of Title 10, §1731(B), resulted in his failure to be selected for promotion to LTC.

Title 10, §1731(b), states “Promotion Rate for Officers in Acquisition Corps. - The Secretary of Defense shall ensure that the qualifications of commissioned 

officers selected for an Acquisition Corps are such that those officers are expected, as a group, to be promoted at a rate not less than the rate for all line (or the equivalent) officers of the same armed force (both in the zone and below the zone) in the same grade.”

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.  The applicant’s primary contention is that his performance file is so exemplary that if the requirement of Title 10, §1731(b) were to have been adhered to and AC officers selected at the same rate as line officers, he would have been selected for promotion.  The Board disagrees with the applicant’s argument because Title 10, §1731(b), states in pertinent part that “. . . The Secretary of Defense shall ensure that the qualifications of commissioned officers selected for an Acquisition Corps . . .”  This appears to be directing the Secretary of Defense to monitor the selection process of officers being considered for the AC to insure those officers are of such a caliber to be expected to be selected for promotion at the same rate as line officers.  The monitoring of selection board rates would be a yardstick with which to view whether the Armed Forces were complying with the Congressional intent to only recruit outstanding officers into the AC.  Nowhere in this statute is there a requirement for the Armed Forces to promote AC officers regardless of their qualifications for promotion.

2.  The applicant has not submitted any evidence which would support his contention that mismanagement within his career field resulted in his failure to be promoted.  His contention that negligence on the part of the Army resulted in his failure to be given equivalent credit for C&GSC residency, and that resulted in his failure to be promoted, is not accepted by the Board.  The applicant has not submitted any evidence which would show that he should have been approved for residency equivalency or, if he had been given equivalent credit, that it would have resulted in his promotion.  The applicant’s contention that his center of mass OER was not appealed based on advice he was given is not considered germane to this case.  An officer is responsible for managing his or her own career.  The applicant chose not to appeal his OER.  While he may now regret his choice, the OER was not contested by the applicant and is now properly filed in the performance portion of his official military personnel file.

3.  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

___rvo __  ___tsk ___  ___sk_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000042901	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200010222	
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.	131.01	
2.		
3.		
4.		
5.		
6.