PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 April 2001
	DOCKET NUMBER:   AR2000043308

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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, in effect, that either his lieutenant colonel (LTC) date of rank be adjusted to the date that would have been established if he had been selected for promotion by the Fiscal Year (FY) 1999 LTC promotion selection board or that he be reconsidered for promotion to LTC by a properly convened Special Selection Board (SSB) using the criteria used by the FY99 LTC promotion selection board. 

3.  The applicant states, in effect, that a regularly scheduled promotion selection board failed to properly consider all the performance reports rendered on him, which resulted in his being reconsidered for promotion by a SSB.  However, the SSB failed to provide him proper notice, which resulted in their failing to properly consider all performance reports rendered on him.

4.  The applicant’s counsel states, in effect, that when the applicant was considered for promotion by the FY99 LTC promotion selection board he was not selected even though his record clearly placed him in the best qualified category. As a result of this non-selection, the applicant reviewed his Official Military Personnel File (OMPF) that was considered by the promotion board at the 
Total Army Personnel Command (PERSCOM).  During this review, the applicant discovered an Officer Evaluation Report (OER), with an ending date of 
25 December 1998, was missing from his OMPF and had not been furnished to the promotion board.  Based on this material error, the applicant requested promotion reconsideration by a SSB.  

5.  Counsel claims that even though the regulation requires that PERSCOM provide a soldier, who is to be considered for promotion by an SSB, a 30 day notice prior to the SSB convening, the applicant was never notified that he would be considered for promotion by an SSB.  In March 2000, the applicant was informed by PERSCOM that he had already been considered for promotion by an SSB and was not selected.  Subsequent to this notification, the applicant reviewed his OMPF and discovered that another OER, with an ending date of 
25 January 1991, was missing from his record when it was reviewed by the SSB. 

6.  Counsel also contends that it is not readily apparent that the OER is missing from the record because there is a Certificate of Course Completion on file in the OMPF where the missing report would ordinarily have been filed.  Discovery of this error was only accomplished when the applicant compared records he kept at home with the microfiche file, and it is impossible to determine exactly when this report was removed from the record.  However, the applicant had discovered this error within the three year statute and relief is well within the purview of the Board.  

7.  Counsel further comments that twice the applicant has been considered for promotion and twice material information has been improperly excluded from the file provided the promotion boards.  The PERSCOM attempt to remedy the first failure was additionally made without compliance with the directive governing the convening of SSBs and it is apparent from this experience that the rigid quality controls that should accompany the promotion process and guarantee its integrity have been lacking.  

8.  Counsel concludes by indicating that the inequities manifested in the applicant’s case demand relief and this injustice should be corrected by the Board by their directing the convening of an SSB and that a complete and accurate record of the applicant appear before them.  Counsel’s full statement with expanded argument is enclosed.  

9.  The applicant’s military records show that on 25 May 1983 he was commissioned a second lieutenant in the Regular Army and that he has continuously served on active duty until the present date. 

10.  The applicant was promoted to major (MAJ) on 1 January 1995 and was considered and not selected for promotion by the FY99 LTC Army promotion selection board that recessed on 30 March 1999.  

11.  On 10 August 1999, the applicant submitted a request for promotion reconsideration by a SSB based on there being a material error in his OMPF.  His material error claim was based on there being an OER, he received with an ending date of 25 December 1998, missing from his OMPF that was reviewed by the FY99 LTC promotion selection board.

12.  The record is void of any indication that PERSCOM notified the applicant that he was slated to be considered for promotion by an SSB prior to the convening date of the board.  On 10 March 2000, the applicant was notified by PERSCOM that he had been considered and not recommended for promotion by a SSB that used the criteria and instructions established for the regularly constituted LTC selection board that adjourned in March 1999.

13.  On 24 March 2000, the FY2000 LTC promotion board adjourned and the applicant’s name was included in the promotion selection list published as a result of this board.  His promotion sequence number was 46 and he was ultimately promoted to LTC as a result. 

14.  In connection with the processing of this case, an advisory opinion was requested of and received from the PERSCOM promotions branch, dated 
13 February 2001.  Promotion branch officials admitted that the applicant’s OER with an ending date of 25 January 1991 was not included in the OMPF reviewed by the SSB that reconsidered him for promotion.

15.  However, PERSCOM further opines that because the OER in question was over 10 years old and was missing from his OMPF records when he reviewed it prior to requesting the first SSB, the applicant, had he exercised due diligence, could have discovered the error prior to the FY99 LTC promotion selection board and the SSB that considered him for promotion.  They further commented that the applicant was subsequently selected for promotion by the FY2000 LTC Army promotion selection board without the OER in question being in his OMPF and they finally recommended that his request be denied.  

16.  The applicant was provided a copy of the PERSCOM advisory opinion in order to have an opportunity to respond, which he did on 25 March 2001.  In his rebuttal, he comments that one of the significant flaws in the PERSCOM opinion is that it ignores essential facts that led to his original application.  He claims that despite the fact that the Army regulation and PERSCOM directives require that members be notified prior to the convening of an SSB, presumably so there would be an opportunity to review the OMPF beforehand, he was never notified that his record would be placed before the SSB; thus, he had no opportunity to exercise due diligence prior to the convening of the SSB.

17.  In addition, the applicant claimed that it was only when he called PERSCOM to inquire on the status of his request for SSB that he was informed that the board had already been held.  He concludes his rebuttal by contending that at this late stage, the only appropriate remedy is to adjust his LTC date of rank to that which he would have received if he had been selected for promotion by the FY99 LTC promotion board and to award him all back pay and allowances due as a result.  

18.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 1-10 (managing promotions) places the responsibility for determining promotion eligibility (zones of consideration) with the Deputy Chief of Staff for Personnel (DCSPER) and approval authority with the Secretary of the Army.  Paragraph 1-35 states, in pertinent part, that promotion selection boards will base their recommendations on impartial consideration of all officers in the zone of consideration as instructed and will keep confidential their reasons for recommending or not recommending any officer considered.  

19.  Paragraph 7-2 contains guidance on SSBs.  It states, in pertinent part, that SSBs may be convened when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or the board that considered an officer from in or above the promotion zone did not have before it some material information.

20.  Paragraph 7-3b states, in effect, that cases will not be considered by an SSB if an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF.

21.  Paragraph 7-4 contains SSB notification procedures and states, in pertinent part, that PERSCOM will send written notification to an officer slated to be considered by an SSB at least 30 days before the board convenes.  

CONCLUSIONS:

1.  The Board noted the contentions of the applicant and his counsel and considered the fact that his OMPF reviewed by the SSB in 1999 contained a material error and that he was not notified and given adequate time to review his record prior to the convening date of this SSB and fully considered the PERSCOM position that the request for SSB be denied because he failed to exercise due diligence in reviewing his records prior to the FY99 LTC promotion board and the subsequent SSB.

2.  In the opinion of the Board, although there is some merit in the PERSCOM opinion, this is not the primary factor in this case.  The primary issues are whether there was some material information pertaining to the applicant missing from the OMPF reviewed by the SSB and were SSB regulatory notification provisions complied with in the applicant’s SSB consideration. 

3.  By regulation, an SSB is authorized when the board that considered an officer from in or above the promotion zone did not have before it some material information.  In addition, the regulation requires that an officer slated to be considered by an SSB be notified in writing at least 30 days prior to the convening date of the board.  

4.  Notwithstanding the PERSCOM opinion, the evidence of record reveals that the OMPF of the applicant reviewed by the SSB contained a material error in the form of a missing OER and that the applicant was not notified, in writing, of his SSB consideration 30 days prior to the convening date of the SSB.  

5.  Therefore, the Board concludes, in the interest of justice and equity, that it would be appropriate to grant the applicant’s request that he be reconsidered for promotion to LTC by an SSB under the criteria used by the FY99 LTC promotion selection board.  

6.  Army policy stipulates that promotion selections are based on the collective best judgement of the promotion board members.  Given this policy, the Board finds it would not be appropriate to substitute its judgement for that of a duly constituted promotion selection board and thus, the applicant’s request that his LTC date of rank be adjusted as if he were selected for promotion by the FY99 LTC promotion board is not warranted in this case. 

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

RECOMMENDATION:

1. That the individual concerned, after being provided proper written notification and having his OER that ended on 25 January 1991 added to his OMPF, be reconsidered for promotion to LTC by an SSB under the criteria used by the FY99 LTC promotion selection board; that if he is selected for promotion by the SSB, his LTC promotion effective date and date of rank be adjusted accordingly; and he be provided all back pay and allowances due as a result. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___mm __  ___jhk__  ___mvt __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John H. Kern _____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043308	
SUFFIX		
RECON		
DATE BOARDED	2001/04/17	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.