MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 December 2001                  
	DOCKET NUMBER:   AR2001053635

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Regan K. Smith		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:  Reconsideration of his earlier appeal to correct his military records by reconsidering him for promotion to chief warrant officer four (W-4) under the 1997 criteria.

APPLICANT STATES:  In effect, that in view of all the facts of his case, he should be reconsidered.  He contends that, given his assignment constraints, he completed the Warrant Officer Advanced Course (WOAC) just as early as he possibly could.  Furthermore, he was notified that the 1995 non-selection did not constitute a passover and he believed this to be true until he received the 31 July 1995 memorandum in May 1996.  By that time, the 1996 Reserve Components Selection Board (RCSB) had already convened.  He believed that he had plenty of time to meet the education requirement.  He submits a package of documents he received in response to a Freedom of Information Act request and questions why it did not include the 31 July 1995 memorandum that he received in May of 1996.  Because the details raised in his rebuttal were not discussed in the Memorandum of Consideration (MOC) he believes they were not properly considered.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in an MOC prepared to reflect the Board's previous consideration of the case (AR1999027909) on 23  February 2000.

The applicant’s submissions are new evidence and argument that require Board consideration.

In his rebuttal to the advisory opinion on the original case, the applicant argued that he should not have been considered by the 1995 RCSB, because he was not eligible for promotion until 1 November 1997.  He further contended that the 1995 non-selection should not be considered a passover because Paragraph 2-4d of Army Regulation 135-155 provides that, ”Nonselection for promotion under this paragraph does not constitute a passover.”

He pointed to the 7 July 1995 memorandum from The Total Army Personnel Command (PERSCOM) that informed him that his non-selection did not constitute a passover and contends that this led him to believe that he had plenty of time to complete the WOAC.  He repeated his assertion that he never received any notification or promotion board package and contends that he was not eligible for consideration by the 1995 Board.  He concluded that since he was not eligible for consideration the non-selection should not be considered a passover.  

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error that existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection, except if an individual is not qualified for non-completion of required military schooling.  Paragraph 3-4 states that each individual to be considered will be notified at least 30 days prior to the convening date of the applicable selection Board.  However, it also provides that, “Lack of notification to an officer does not provide an independent basis for the officer to be considered by a standby board under paragraph 3-14.”

Paragraph 3-14e(1) of the regulation states that Headquarters, Department of the Army, “will normally not determine that a material error existed under the following conditions:…the officer in exercising reasonable diligence, could have discovered the error….”

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 light of the fact that the applicant had from 1 November 1990 to become educationally qualified and that the workings of the officer promotion system are well known, the Board considers that the applicant did not exercise reasonable diligence and that reconsideration for promotion is not appropriate.  

2.  Position assignments may have impacted upon the case.  However, even if the applicant believed that the 1995 non-selection was not “a passover’” he had to have known that non-selection by the 1996 RCSB would seriously jeopardize his future chances of promotion.  The Board finds the failure to achieve educational qualification and to simply accept the, inevitable, non-selection by the 1996 RCSB to be a careless disregard for his own career which further militates against relief.  

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__SAC __  __RKS__  __MDM__  DENY APPLICATION

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

INDEX
CASE ID	AR2001053635	
SUFFIX		
RECON		
DATE BOARDED	20011213	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.