PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           13 February 2001                  
	DOCKET NUMBER:   AR2000043298

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Shirley L. Powell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be reconsidered for promotion to colonel by a special selection board (SSB).

3.  The applicant states that the Officer Special Review Board (OSRB) found a material error in his fiscal year (FY) 1998 promotion file--one missing officer evaluation report (OER) for the period ending 6 July 1998.  However, the OSRB denied him promotion reconsideration by finding that he did not exercise ample diligence when reviewing his records.  He contends that he did in fact exercise necessary and ample diligence in correcting his Officer Record Brief (ORB).  He reviewed his records prior to the FY98 colonel selection board and at that time he noted that an OER for the period 1 October 1997 through 6 July 1998 was present.  In preparation for the FY99 colonel selection board he reviewed his records with his assignment officer and confirmed that a later dated OER had been received for filing.  At that time, he had no reason not to believe that the earlier OER was not in his record.  He asserts that for the OSRB to conclude he failed to exercise diligence by assuming an OER would disappear from his record eight months later is specious logic.  The OSRB stated that reconsideration may be warranted based on (1) nature of inaccuracy, (2) officer’s overall record and (3) selection rate of the promotion concerned.”  The applicant disagrees.  He submits that neither the officer’s overall record nor the selection rate has any bearing on the presence of a material error.  The only pertinent factor is the nature of the inaccuracy and a missing OER is a significant inaccuracy.  Furthermore, assigning blame for an administrative error should not be the focus of the OSRB’s determination.  A significant material error existed in his file for the FY99 colonel selection board.  In his opinion, that is the critical error.  The applicant also points out that the OSRB stated they contacted his career branch manger who stated that he did not review both his ORB and OMPF.  However, the OSRB did not contact his assignment officer with whom he coordinated.  This is puzzling since he cited this officer in his appeal to the OSRB.  

4.  In support of his application, he submits a letter from his former assignment officer.  The assignment officer states that upon nominating the applicant for an assignment in March 2000 it came to his attention that the OER for the period ending 6 July 1998 was not reflected in two personnel record data bases.  He later learned that the OER was not in the record, which was reviewed by the FY99 colonel selection board.  He recalled that in preparation for the FY98 colonel selection board, the applicant reviewed his “microfiche” (OMPF in microfiche format that is used by selection boards).  He personally went to the OER branch and confirmed that the OER ending 6 July 1998 was logged in and flagged for the FY98 colonel selection board.  It was therefore, fair for the applicant to assume that since the OER had arrived it would be entered onto his 

microfiche after the FY98 colonel selection board had adjourned.  In March 1999 the applicant says that he telephonically made corrections to his ORB in preparation for the FY99 colonel section board.  It was verified that an OER ending 29 January 1999 had arrived.  Thus, in July 1998 and March 1999 the applicant took adequate steps to ensure his ORB was correct and that his most recent OERs had arrived for filing.  Lastly, he points out that the OSRB did not verify these events with him. 

5.  The applicant’s military records show that he was commissioned a second lieutenant, field artillery, on 7 June 1978.  He achieved the rank of lieutenant colonel on 1 December 1994 and is currently on active duty.

6.  On 28 April 2000, the OSRB informed the applicant that his request for reconsideration for promotion by a SSB was denied.  The OSRB acknowledged that the OER for the period ending 6 July 1998 was not reviewed by the FY99 colonel selection board.  The OSRB noted that the applicant did not provide, and the OSRB did not find elsewhere, any evidence of an effort to conduct a review of his OMPF and ORB in accordance with the instructions provided in the Military Personnel (MILPER) message announcing the promotion board.  It was pointed out that the applicant had over 20 years of active commissioned service and had experience with the promotion board selection process.  The applicant provided no evidence of extenuating circumstances as to why he failed to conduct a review of his records or why he had not ensured that his entire official file was not correct before the board convened.  With regard to the missing OER, AR 600-8-29 (Officer Promotions) paragraph 7-3b prohibits selection reconsideration when, in exercising reasonable diligence, an officer could have discovered and corrected an error in his record.

7.  AR 600-8-29 paragraph 7-3 provides, in pertinent part, that an officer will not be considered or reconsidered for promotion by a SSB when the following occurs:

a.  The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The next regularly scheduled selection board will consider the officer.

b.  An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB 

or OMPF.  The ORB is a summary document of information generally available elsewhere in the officer's record.  It is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

8.  MILPER Message Number: 99-155 (FY99 Colonel Selection Board) paragraph 6 provides, in pertinent part, that officers eligible for consideration should review their OMPF and ORB prior to the convening date of the board.

CONCLUSIONS:

1.  The OER in question was placed in his file before the FY98 colonel selection board convened.  The Board concurs with the applicant that it would be reasonable for him to expect that the OER would also be available for review by the FY99 colonel selection board.

2.  Accordingly, the Board concludes that the applicant’s records contained a material error when reviewed by the FY99 colonel selection board.  Since the OER ending 6 July 1998 was missing from his file, his record should be submitted to a SSB for promotion reconsideration.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  placing the records of the individual concerned before a special selection board for FY99 for consideration for promotion to colonel under criteria then in effect; 

b.  showing that if he is selected, assigning him an appropriate date of rank and placing his records before an appropriate board for consideration for further promotion as provided for by regulations; and

c.  paying to him all back pay and allowances that may be due as a result of such selection for promotion.

BOARD VOTE:  

___jh___  ___hro___  ___sp  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________June Hajjar________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043298	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001021300	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.