MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 April 2001                  
	DOCKET NUMBER:   AR2000049074

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman		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:  That his promotion file be referred to a colonel (pay grade 06) position vacancy board.

APPLICANT STATES:  That his file was not considered by a position vacancy board due to administrative errors on the part of the Army and he was not selected for colonel as a result.

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

He was appointed in the Reserve, Judge Advocate General’s Corps (JAGC) as a first lieutenant effective 21 June 1972 with 4 years constructive service credit.

He attained the rank of major effective 27 June 1983 and was promoted to lieutenant colonel effective 18 June 1989.

He was considered and not selected for promotion to colonel by the 1993, 1994, 1995 and 1996 Reserve Components Selection Boards (RCSB’s).

Based on a review by the Office of Promotions, Reserve Components, his records show they contained material error (incomplete records) when considered by the 1995 and 1996 selection boards.  It was determined that the applicant had a basis for reconsideration by a special selection board (SSB) under 1995 and 1996 criteria.

On 25 November 1997, he was recommended for a USAR position vacancy promotion to the grade of colonel.  He was not promoted.

He was considered and not selected for promotion by an SSB under 1995 and 1996 criteria.

He has also been considered and not selected for promotion by the 1997 and 1998 RCSB’s.

On 14 December 1998, the Director, Personnel Actions and Services, the Total Army Personnel Command (PERSCOM), advised his command that the applicant’s promotion packet did not go before the June 1998 Position Vacancy Board because he was a two time failure of selection for promotion to colonel.  A legal opinion rendered stated in part that The JAG did not possess the authority to authorize a position vacancy promotion board consideration under Title 10, USC, sections 1410(a)(2) and 14315.  That authority rests with the Secretary of the Army (SA).  The memorandum also advised the applicant’s command that any request for SA determination should be accompanied by the applicant’s promotion consideration packet and justification as to why they believe the applicant was the only qualified officer to fill the position.

There is no evidence that the applicant or his command forwarded to the SA his promotion packet along with justification that the applicant was the only qualified officer to fill the position for a determination.

Title 10, USC, section 14315(e), position vacancy promotions, prescribes rules for position vacancy promotions and specifies that a USAR officer failed of selection by a mandatory board may not be considered for promotion by or promoted through a position vacancy board unless the SA determines the officer is the only qualified officer available to fill the vacancy.  The SA may not delegate this function.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component officers.  The law was implemented by the Army effective 1 October 1996.  ROPMA specifies position vacancy promotion to colonel requires completion of 3 years in the lower grade.

The Reserve Officer Personnel Act in effect prior to ROPMA required completion of 3 years as a lieutenant colonel before promotion vacancy board consideration to colonel and completion of 5 years before mandatory promotion board consideration.

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.  In view of the circumstances in this case, the applicant is not entitled to referral to a position vacancy promotion board for promotion to colonel.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board has noted his contention that he was not considered by a position vacancy board due to administrative errors on the part of the Army.  However, the applicant was not eligible for consideration by a position vacancy board due to his failures for selection for promotion to colonel by the mandatory promotion selection boards.

3.  The Board notes that the applicant must obtain approval from the SA and justification must be provided that the applicant is the only qualified officer for the vacancy for promotion under this process.  Absent this justification, and approval of such, it is further concluded that the applicant has been considered for promotion to colonel from 1993 through 1998 and not selected, thereby causing him to remain ineligible for a position vacancy promotion. 

4.  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.

5.  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

_ra_____  _rtd____  _dh_____     DENY APPLICATION

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

INDEX

CASE ID	AR2000049074	
SUFFIX		
RECON		
DATE BOARDED	20010412 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.