MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 August 2001
	DOCKET NUMBER:   AR2000049437

	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. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John P. Infante		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 his major (MAJ) promotion date be backdated to the date that would have been assigned had he been selected for promotion by the 1998 promotion board.  

APPLICANT STATES:  In effect, that he believes there were material errors in his Official Military Personnel File (OMPF) when it was reviewed by the promotion board in 1998.  These errors include an erroneous senior rater (SR) profile that impacted his SR evaluation in an Officer Evaluation Report (OER) he received that covered the period 20 January 1990 to 20 July 1990.  He claims that the intent of the SR was to place him in the top box of his profile and he provides a supporting statement to that effect from the SR.  The SR indicates in his statement that it was his intent to shape his profile and place no officers in the top box, which would have resulted in 0 officers being in the first block, 15 in the second block, and 8 in the third block at the time of the applicant’s evaluation.  By placing the applicant in the second block he intended that he be in the top block of his profile at the time.  However, three subsequent OERs were submitted ahead of the applicant’s report, which resulted in his profile being 
3 first block, 15 second block, and 8 third block.  

In addition, the applicant claims a second material error in his record based on the fact that civilian education level (CEL) was incorrectly depicted in his Officer Record Brief (ORB).  It showed he had only completed his undergraduate degree, when in fact he was only 9 hours away from completing his master’s degree, with an anticipated graduation date of 9 December 1999.  He was informed this information could be added to his record for review by the promotion board but due to the fact he was financing his own education this information did not appear in his record, as it is only annotated when the Army is paying for the education.  The only way it could have been placed before the promotion board was via a memorandum for record that could be included in the board file.  

The applicant claims that during the period the 1998 promotion board convened, his year group was below strength and his specialties for his year group were also below strength.  He also comments that he was led to believe by his Army Personnel Command (PERSCOM) career advisors that he was fully qualified and would be promoted based on his evaluations and his performance record.  He provides the enclosed statement in which he provides board statistics and other factors he believes impacted his not being selected for promotion by the 1998 board and that show, given the strength posture of his year group and specialties coupled with his record of performance, he should have been selected for promotion.  

In support of his application, the applicant provides the enclosed expanded statement outlining his entire argument with the following enclosures:  letter of support from the SR on the contested report; Special Selection Board (SSB) Memorandum; letter of support from his former commander; officer rating sheet; letter from his current supervisor; Acquisition Corps acceptance letter and data packet; ORB; and OER’s.

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

On 16 October 1987, he was commissioned a second lieutenant in the United States Army Reserve and entered active duty as an Armor officer.  On 
16 October 1989, he was promoted to first lieutenant and on 1 May 1992, he was promoted to captain. 

The OER containing the contested SR evaluation was a change of rater report that covered the period 20 January 1990 through 20 July 1990, in which, the applicant was evaluated as an executive officer of a tank company at Fort Knox, Kentucky.  In part VIIa (potential evaluation) the SR placed the applicant in the second block, and the accompanying comments were very complimentary.  They included the following:  he was the best lieutenant in his company; did a super job filling in for the company commander; and would be an outstanding company commander when the time came.  The SR’s profile on the contested report shows that he had evaluated a total of 22 officers:  3 were placed in the top block; 18 in the second block, which included the applicant; and 8 in the third block.  Under the provisions of the OER senior rater profile policy in effect at the time this would have made the applicant’s OER a center of mass (COM) report. 

The applicant was considered but not selected for promotion to MAJ by the Fiscal Year (FY) 1998 MAJ, Army promotion selection board, which convened on 28 April 1998 and recessed on 1 June 1998 and again by the FY 1999 board that convened on 20 April 1999 and recessed on 19 May 1999.  He was ultimately promoted to MAJ with a date of rank of 19 July 2000.

In connection with the processing of this case, an advisory opinion was requested of and received from evaluation and promotion officials of the Total Army Personnel Command (PERSCOM).  In regard to the contested OER, PERSCOM evaluation officials stated that a review of the SR history file indicates no error in the processing of the reports he rendered during the same timeframe the contested report.  Therefore, the SR profile could not be adjusted and further, even had the profile been adjusted, the applicant’s OER would still be ranked as a COM report, even if there were no officers placed in the top block.  As a result, changing the contested report would not result in a better evaluation and would not have enhanced the applicant’s opportunity for promotion. 

PERSCOM promotion officials provided input, which indicated that by regulation, promotion reconsideration is approved only for nonselected officers whose records contained a material error when they were considered by a promotion selection board.  A material error is defined as being of such a nature that, in the judgement of the reviewing official (or body), had it been corrected at the time the individual was considered by the board that failed to recommend him for promotion, it would have resulted in a reasonable chance that the individual would have been recommended for promotion.  Further, a detailed review of the applicant’s record failed to show any material error existed in his record when it was reviewed for promotion by the FY 1998 and 1999 MAJ promotion selection boards.  They further commented that the applicant’s CEL as depicted in his ORB at the time accurately reflected that the highest CEL he attained was a baccalaureate degree.  The applicant did not complete his master’s degree until December 1999, well after the FY 1999 promotion board adjourned on 19 May 1999.  The fact that the applicant is now submitting a memorandum in regard to his CEL does not constitute a material error at the time of the original selection boards and does not substitute for his not having submitted a memorandum to the selection boards prior to the dates they convened.  Thus, there is no basis for promotion reconsideration by an SSB.  

The applicant was provided copies of the advisory opinions provided by PERSCOM officials in order to have the opportunity to respond, which he did on 25 May 2001.  In his rebuttal, he stated that he disagreed with the PERSCOM opinions, and specifically in regard to his CEL, which he continues to contend was not properly depicted in his ORB reviewed by the promotion boards in question.  He claims that the fact he had only 9 hours left to complete for his Master’s Degree and had an anticipated graduation date of December 1999, clearly showed future potential for an Army officer and should have been included in his ORB.  He claims this is a discrepancy in that had the Army paid for his education it would have been included in his ORB and it was not annotated because he financed his own education.  However, this was not entirely true because he had received tuition assistance from the Army for a portion of his education.  He contends this education should have been annotated in his ORB for the promotion board or at a minimum in a letter to the board. 

Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 1-33 contains guidance on the information provided to promotion boards and states, in pertinent part, that officers eligible for consideration may write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration and that these memorandums will be considered if received not later than the date the board convenes. 

Chapter 7 contains guidance on special selection boards (SSBs) and states, in pertinent part, that SSBs may be convened to reconsider officers for promotion when it is discovered that the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error or did not have before it some material information.  It also states, in pertinent part, that cases do not warrant reconsideration by an SSB if an officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. Further, it stipulates that 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. 

Army Regulation 600-8-104 (Military Personnel Information Management and Records) prescribes the policies and mandated operating tasks for the Military Personnel Management and Records program of the Military Personnel System. Paragraph 4-3 provides ORB policy and paragraph 4-9 provides the rules for administering officer pre-board processing.  It states, in pertinent part, that officers in the zone of consideration will review and update their ORB; are responsible for maintaining and submitting current information to the promotion selection board; and may write to promotion selection boards.  Table 4-1 provides update procedures for the ORB and indicates that civilian education level code entered in the ORB will reflect the highest civilian education level attained. 

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

1.  The Board noted the applicant’s contention that his MAJ promotion date should be changed given there was a material error in his record that was reviewed by the FY 1998 and 1999 MAJ promotion selection boards but finds an insufficient evidentiary basis to support this claim.

2.  By regulation, it is an officer's responsibility to review his or her ORB and OMPF before the promotion board convenes and to notify the board, in writing, of possible administrative deficiencies in them.  Further, the regulation allows officers eligible for consideration to write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration and stipulates that these memorandums will be considered if received not later than the date the board convenes. 

3.  In the opinion of the Board, the applicant had the responsibility to review the ORBs being submitted to FY 1998 or 1999 MAJ promotion selection boards and had more than an ample opportunity to bring his education status to their attention by submitting a memorandum to the board prior to their convening dates.  Thus, the Board finds this factor does not constitute a material error or provide a basis for promotion reconsideration at this late date.
4.  Further, notwithstanding the SR statement provided in support of this application, the Board finds that the SR profile in the OER evaluation contested by the applicant would not have changed the relative ranking of the contested report from COM, as confirmed by PERSCOM evaluation officials.  Therefore, the Board finds no basis for concluding a change to the SR evaluation on this OER would have enhanced the applicant’s promotion opportunities and does not provide a basis for changing his promotion date to MAJ.  

5.  Additionally, by regulation, in order to be reconsidered for promotion it must be proven that a promotion selection board that considered an officer acted contrary to law, made a material error, or did not have before it some material information.  

6.  The Board finds no evidence that the FY 1998 and 1999 MAJ promotion selection boards acted contrary to law, made a material error, or did not have before them some material information that was omitted from the record as a result of an administrative error.  Therefore, it concludes the requested relief is not warranted. 

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

__RJW   _  __BJE __  __ JPI___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049437	
SUFFIX		
RECON		
DATE BOARDED	2001/08/02	
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.