MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 March 2001
	DOCKET NUMBER:   AR2000045033

	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. Joseph A. Adriance		Analyst	

	The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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:  In effect, that he be reconsidered for and promoted to the rank of lieutenant colonel (LTC).  

APPLICANT STATES:  In effect, that based on his record of service and overall qualifications he should have been promoted to the rank of LTC based on his being in the top two percent of his officer peers in the Arkansas Army National Guard (ARNG) and in the top five percent of all his Army officer peers.  He claims that a review of his overall record will show a disparity in the promotion selection process and makes it appear that the best officers, based on military/civilian education, career assignments, officer evaluation reports, or facts pertaining to the files submitted, are not selected.  In support of his application, he provides an expanded statement with enclosures that outline his career history and other factors related to this promotion issue. 

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

On 18 July 1977, he was appointed a second lieutenant in the ARNG and continuously served in that status until 4 December 1998 when he was transferred to the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR), which is the status he currently holds. 

The record shows that he was promoted to the rank of major (MAJ) on 
12 December 1990.  He was first considered for promotion to LTC by the 1996 Reserve Component (RC) LTC promotion selection board and was not selected for promotion by that board. 

In June 1997, based on his not being selected for promotion by the 1996 board, the applicant requested reconsideration for promotion.  His case was referred for promotion reconsideration by a Stand-By Advisory Board (STAB).  On 15 August 1997, the STAB convened and he was reconsidered for promotion to LTC using the 1996 criteria.  After reconsideration of his file, the STAB did not select him for promotion. 

He was again considered for promotion by the 1997 RC LTC promotion selection board and was again nonselected for promotion.  In July 1998, based on his nonselection, the applicant again requested reconsideration for promotion and his case was referred to a STAB.

Orders Number 343-11, dated 9 December 1998, issued by the Office of the Adjutant General, Camp Robinson, North Little Rock, Arkansas, directed the applicant be honorably separated from the ARNG on 1 December 1998 and that he be transferred to the USAR Control Group. 

On 18 December 1998, a STAB convened and reconsidered the applicant for promotion to LTC using the 1997 promotion criteria.  After reviewing his record, the STAB did not select the applicant for promotion to LTC.

In connection with the processing of this case, an advisory opinion was requested of and received from the Chief of Promotions, Office of Promotions, Total Army Personnel Command (PERSCOM).  He opined, in effect, that the applicant’s request for relief should be denied because he was considered for promotion by two properly constituted Department of the Army (DA) RC promotion selection boards and additionally reconsidered by two STABs, all of which determined he should not be selected for promotion to LTC.  These boards all made their decisions based on the criteria and written instructions provided them by the Secretary of the Army in a memorandum of instruction provided to each selection board member.   Further, they opine that DA trusts implicitly the maturity, experience, and judgement of each promotion board member to evaluate impartially and objectively each officer’s record and to make promotion recommendations that will best serve the needs of the Army.  Finally, they comment that after reviewing the applicant’s file, that they have no reason to question the decisions made by the various selection boards that considered the applicant for promotion. 

The applicant was provided a copy of the PERSCOM advisory opinion and was given an opportunity to respond, which he did in the enclosed rebuttal statement that was received on 27 February 2001.  In it, he reiterates his dissatisfaction with the way his records were handled prior to being submitted to the various promotion boards in question and with the case presented in the PERSCOM advisory opinion.  He states that, in his opinion, the results and reasons for promotion non-selection should be posted and an officer should have every right to know the reasons for not being promoted.  He also indicates that promotion boards should have the judgement to personally review files with the officers present.  In addition, he questions the comments in regard to the senior rater evaluations referred to in the PERSCOM advisory opinion and indicates that these ratings are subjective and vary from senior rater to senior rater.  Further, he suggests there is an inconsistency in regard to the comments in the advisory opinion in regard to the importance given to officer evaluation reports (OERs), education, and proficiency, in that, the opinion indicates in one paragraph that they are important and in another paragraph that they are unimportant.  Finally, he reiterates his opinion that he is in the top two percent of officers in the Arkansas ARNG and top five percent of all Army officers, and submits that for this reason and the others he has outlined, he was best qualified for promotion.  His full rebuttal statement and expanded argument are enclosed. 

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and USAR. 

Paragraph 3-11 contains guidance on method of selection to be used by promotion board and states, in effect, that promotion selection boards will base their recommendations on impartial consideration of all officers in the zone of consideration.  

The regulation also indicates, in effect, that promotion selection boards will keep confidential their reasons for recommending or not recommending any officer considered and at the conclusion of the board, members must attest that to the best of their knowledge, the board carefully considered the records of each officer and that the officers recommended for promotion were, in the opinion of the majority of the members of the board, fully qualified and best qualified for promotion to meet the needs of the Army.

Paragraph 3-14 contains guidance on STABs and states, that these boards are formed to prevent any injustice to an officer or former officers who were eligible for promotion but whose records through error, were not submitted to a promotion selection board for consideration or contained a material error when reviewed by the selection board.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that he should have been selected for promotion to LTC based on his qualifications.  However, after a careful examination of the evidence of record and the independent evidence submitted, the Board finds no basis on which to support this claim. 

2.  The Board concurs with the PERSCOM position that as a matter of Army policy, promotion selections are made based on the collective judgement of the promotion board members as to who they determine to be fully and best qualified.  

3.  Further, the record shows the applicant was considered for promotion to LTC by two separate properly constituted DA selection boards and two separate STABs, and that he was not selected for promotion.  There is no evidence to suggest that the selections made by these various boards were made based on anything other than the defined Army policy and the instructions they were provided.  Therefore, the Board finds no propriety or equity basis for the requested relief. 

4.  In the opinion of the Board, although the applicant’s record is excellent, he failed to provide any evidence to prove the promotion selection boards in question acted contrary to law, made a material error, or did not review some material information that was missing from his record that was not eventually addressed during a STAB review.  

5.  Thus, the Board concludes that the regulatory burden of proof necessary to entitle the applicant to promotion reconsideration has not been met and further promotion consideration is not warranted. 

6.  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.

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

___rtd___  ___jhk___  __clg ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045033	
SUFFIX		
RECON		
DATE BOARDED	2001/03/01	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.