PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            3 April 2001
	DOCKET NUMBER:   AR2000047328

	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. Walter T. Morrison		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas F. Baxter		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, a change to his captain (CPT) date of rank (DOR) from 1 November 1995 to 1 June 1995.  

3.  The applicant states, in effect, a change of his date of rank is necessary in order for him to be competitive with his original year group of Fiscal Year (FY) 1991 (91).  He indicates that on 11 June 1994, he personally visited his career manager at the Total Army Personnel Command (PERSCOM) in order ensure his records were accurate prior to their being reviewed by the FY94 CPT promotion selection board.  He claims that at that time he hand delivered a copy of his only Officer Evaluation Report (OER), an annual report that ended on
8 June 1994, and updated the rest of his Official Military Personnel File (OMPF) as required.  He also states that he was assured at the time that the copy of the OER would be added to his record but when the CPT promotion selection board convened the report had been discarded because it was a photo copy and he was denied his promotion to CPT in FY94.  The reason given him for his 
non-selection was that he had an immature file. He has enclosed legal action he took in 1994 and he explains that he fully believed that if his career manager had demanded the original copy of the OER in question he would have been able to produce the form and his promotion to CPT would have been assured, the selection rate for that year was 96 percent.  Except for the absence of the OER, he claims that his record was very competitive and contained many other indicators of his potential and for strong performance as a CPT.  

4.  The applicant’s military records show that on 1 June 1991 he was commissioned a second lieutenant (2LT) in the Regular Army and entered active duty.  

5.  On 28 January 1992, he entered Phase I of the Aviation Officer Basic Course (AOBC), which he completed on 25 February 1992.  The Department of the Army (DA) Form 1059 (Service School Academic Evaluation Report), dated 12 March 1992, which evaluated his course performance indicated that he exceeded all course requirements and was placed on the commandant’s list based on his course accomplishments.  

6.  On 26 February 1992, he entered the Initial Entry Rotary Wing Aviator (AH-11) course, which he successfully completed on 13 January 1993.  The DA Form 1059 on file, dated 19 January 1993, confirms that he exceeded all course standards and was selected the distinguished graduate of this class. 

7.  On 11 January 1993, he entered Phases 2 and 3 of the AOBC, which he completed on 19 February 1993.  The DA Form 1059, dated 14 March 1993, which evaluated his course performance indicated that he exceeded all course standards and was placed on the commandant’s list as a result of his course accomplishment. 
8.  On 30 March 1993, he entered the AH-64 Aviator Qualification Course, which he completed on 8 June 1993.  On 1 June 1993, while attending this course the applicant was promoted to first lieutenant (1LT) and the DA Form 1059 on file, dated 10 June 1993, indicates that he achieved course standards.  Upon his successful completion of this training he was assigned to an Aviation Regiment in Germany, where he arrived for duty as an attack helicopter platoon leader on 
9 June 1993.

9.  On 15 June 1994, his first OER was completed on him, which evaluated his performance as a 1LT performing duty as an AH-64 Apache Helicopter Platoon Leader.  This OER was an annual report that covered the period 9 June 1993 to 8 June 1994.  

10.  The rater placed the applicant in the first block in both Part Vb (performance) and Part Vd (potential) of this initial OER and added highly complimentary comments supporting these ratings, which included the statement “Unlimited potential in any duty assigned.  Promote to Captain immediately and select for early attendance to the Aviation Officer Advance Course.”  The senior rater placed him in the top block, above the center of mass, in Part VIIa (potential) and added the comment “Select for Captain and send to Aviation Advance Course.”

11.  On 17 June 1994, the applicant traveled from Germany to Alexandria, Virginia to present his initial annual OER to his assignment officer to have it included in his OMPF and to review the rest of his file for accuracy prior to it being reviewed by the FY94 CPT promotion selection board.  

12.  On 6 July 1994, the FY94 CPT Army promotion selection board convened to consider eligible 1LTs for promotion to CPT.  The applicant was considered for but not selected for promotion by this board.  

13.  On 29 December 1994, the applicant through his legal counsel submitted a request to PERSCOM that he be reconsidered for promotion to CPT by a special selection board (SSB).  This request was based on a claim of material error in the record because the OER hand-carried to PERSCOM by the applicant for inclusion in his OMPF had been erroneously omitted from the file reviewed by the FY94 CPT promotion selection board.  

14.  On 27 January 1995, the PERSCOM Chief of Promotions Branch, denied the request for SSB citing the fact that the OER in question was not processed through PERSCOM until 18 July 1994, which was subsequent to the 28 June 1994 filing suspense date established in the PERSCOM zone of consideration message for the FY94 promotion selection board and therefore, the missing OER did not constitute a basis for promotion reconsideration.  

15.  On 1 November 1995, the applicant was promoted to the rank of CPT as a result of being selected for promotion by the FY95 CPT Army promotion selection board.  

16.  In connection with the processing of this case an advisory opinion was requested of and received from interested PERSCOM officials.  This PERSCOM advisory opinion included a memorandum from the Chief, Aviation Assignments Branch, dated 7 March 2001, in which branch officials recommend approval of the applicant’s request that he be reconsidered for promotion to CPT by a SSB because his non-selection for promotion by the FY94 CPT selection board was clearly due to material error.  

17.  Aviation Branch officials further indicated that their review of the board results revealed that the reason for his non-selection was the absence of any OERs in his file.  They also confirmed that his initial OER was processed through local personnel officials in sufficient time to be included in the promotion file prior to the 6 July 1994 convening of the FY94 CPT board, but was not.  In addition, they verified that on 17 June 1994, the applicant diligently traveled from Germany to PERSCOM, at his own expense, and hand delivered a copy of his OER, at which time he was assured by his assignments officer that the OER would be included in his promotion file.  A subsequent branch review of the promotion record confirmed the OER was excluded from the file that was reviewed by the FY94 CPT promotion selection board. 

18.  PERSCOM Promotion Branch officials provided an advisory opinion, dated 13 March 2001, in which they indicate that upon further review and based on information provided by the Aviation Branch, they were revising their earlier position that there was no material error and promotion reconsideration should be denied.  They further commented that this position change is based on the fact that the OER in question was the applicant’s first report, would have been the only report on file in his promotion record, and he had been assured by PERSCOM branch officials that it would be included in the record reviewed by the FY94 CPT Army promotion selection board.  They now recommend that the applicant’s request for promotion reconsideration be approved. 

19.  On 22 March 2001, the applicant was provided a copy of the PERSCOM advisory opinion and given an opportunity to respond, which he did by concurring with the rendered opinion.  

20.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policy for officer promotions.  Chapter 7 contains procedures for managing SSBs.  It states, in pertinent part, that SSBs may be convened to reconsider commissioned or warrant officers for promotion when it is discovered that the board that considered an officer from in or above the promotion zone did not have before it some material information.  

21.  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.

CONCLUSIONS:

1.  The Board noted and concurs with the latest advisory opinion rendered by PERSCOM promotion officials, which confirms there are sufficient grounds for the applicant’s promotion reconsideration by an SSB using the criteria used by the FY94 CPT Army promotion selection board.

2.  By regulation, SSBs may be convened 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.  

3.  In the opinion of the Board, the primary issue in this case is whether or not the applicant’s first OER was material information and if due diligence was made by the applicant to ensure his promotion records were complete prior to the convening date of the FY94 CPT Army promotion selection board.  

4.  The evidence of record makes clear that the applicant exercised due diligence in hand-carrying his initial OER to PERSCOM to ensure it would be filed in the record reviewed by the promotion board and that even after this effort the OER in question was still excluded from the promotion record reviewed by the FY94 CPT Army promotion selection board.

5.  Therefore, the Board finds there was clearly material information pertaining to the applicant that was not placed before the FY94 CPT Army promotion selection board panel.  This clearly establishes that material error regulatory criteria for promotion reconsideration by an SSB has been met and that the requested relief is warranted in this case. 
6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That the individual concerned be granted promotion reconsideration by a SSB for promotion to CPT, under the criteria used by the FY94 CPT promotion selection board, with his initial OER added to the promotion record, and that if this results in retroactive selection his CPT DOR be adjusted accordingly and he be provided any back pay and allowances due as a result.

BOARD VOTE:  

___tb ___  ___jm___  __wtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Walter T. Morrison____
		        CHAIRPERSON

INDEX

CASE ID	AR2000047328	
SUFFIX		
RECON		
DATE BOARDED	2001/04/03	
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.  21	102.0700	
2.		
3.		
4.		
5.		
6.