MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           30 OCTOBER 2001
	DOCKET NUMBER:   AR2001058641

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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 non-selection for promotion to lieutenant colonel by the FY00 promotion board be voided, and that his record reflect that he was selected for promotion to lieutenant colonel by that board.  In the alternate, he requests that he be considered for promotion by a special selection board, with instructions to that board that no adverse implication was to be construed by his having only two years of service in the rank of major or the number of officer evaluation reports (OERs) or types of duty assignments to date, and instructions to the board reflecting that in the absence of officer evaluation reports (OERs) during the period 1996-1998 while he was waiting for a decision on his initial DD Form 149 application, that the special selection board consider him to have received an appropriate number of OERs in competitive assignments with a senior rating equivalent to the center of mass.  Otherwise, he requests that his entry into the primary zone for consideration for promotion to lieutenant colonel be delayed an additional two years from the date relief is granted pursuant to his request; or that the Board grant any other relief as deemed necessary to correct the injustice.  He lists these requests in order of preference. He also requests he be provided all back pay and allowances to which he would otherwise be due.

APPLICANT STATES:  In effect, that the delay in processing his initial application for correction of his military records resulted in him having only two OERs in his file before being included in the primary zone for consideration for promotion to lieutenant colonel.  Consequently, he was totally noncompetitive for promotion, resulting in his non-selection by the promotion board.  He also states that the relief granted in the 30 April 1997 Board supplemental proceedings directed that an adequate explanation be placed in his official military personnel file (OMPF) to ensure that he would not be prejudiced in any future personnel actions by the gap of OERs in his record.  He states that the appropriate corrective language was never placed in his file, resulting in extreme prejudice and injustice regarding his opportunity for promotion.

The applicant submits a six page affidavit in support of his request, in which he states that in March 1994 he filed an appeal regarding an error on his                 28 May 1992 through 27 May 1993 officer evaluation report (OER), and that his appeal was disapproved by the Total Army Personnel Command (PERSCOM).  Consequently, in August 1995 he applied to this Board for relief.  However, as a result of his non-selection to major and because of the delayed processing of his application, he left active duty in April 1996.  He served in a Reserve troop program unit (TPU).  In June 1997 a favorable decision was rendered in his case, directing that his OER be corrected and that a special selection board consider his case; however, that decision directed that the special selection board consider him for voluntary indefinite (VI) status, rather than for promotion to major.  He immediately contacted the ABCMR, and in the spring of 1998 the Board corrected the error, directing that he be considered for promotion to major. In March 1998 he was notified that he was selected for promotion to major, with a date of rank of 1 June 1996.  Thus, it took four years from the date that he filed his OER appeal to the date of the favorable action on his case.  For the first two years he was on active duty; however, he was compelled to be off active duty during the last two years it took to complete the process.

In his affidavit, he continued by saying that upon notification of his selection to major he contacted the Judge Advocate General Corps (JAGC) Personnel Plans and Training Office (PP&TO) of his intent to return to active duty, informing them of his concern about the two year gap and his future promotion potential.  He discussed how the retroactive date of rank would only provide him with two years before he would enter the lieutenant colonel primary promotion zone.  He volunteered for duty in Bosnia, completed almost a full year there, and was assigned to his current duty in Kwajalein, pursuant to a by-name request by the Staff Judge Advocate of the Army Space and Missile Defense Command. 

He stated that after being on active duty for two years he was included in the primary zone for selection to attend resident Command and General Staff College (CGSC) and in the primary zone for the FY00 LTC JAGC promotion selection board.  In that time, he had received only two OERs, both of which were above center of mass.  Because selection boards do not review Reserve OERs, his record before the promotion board reflected a two-year gap with no OERs.  Consequently, the board could only review two years of active duty OERs for him in his rank of major representing only two assignments as a major. He stated that he was non-selected for both the CGSC resident course and for promotion to lieutenant colonel; and that the non-selection was a direct result of the combination of the lengthy time to process his application to this Board in conjunction with his retroactive date of rank.  He stated that it was impossible for him to be competitive for promotion to the rank of lieutenant colonel.  He also stated that he was told that because of his non-selection he was no longer competitive for positions of higher responsibility.  

He stated that his performance has been exceptional since his return to active duty as evidenced by the two above center of mass OERs that he received.  He provides statistics concerning the FY00 LTC JAGC promotion board, showing among other things, that the average officer considered by that board had at least 5 OERs compared to his 2, and that the average officer would have had additional duty assignments of increasing responsibility appropriate for senior majors to enhance their competitiveness at the promotion board.  He stated that had his application been expeditiously processed through the ABCMR his date of rank would have been closer to the date that he actually reentered on active duty, with at least one more duty assignment, as well as at least two more OERs. 

He stated that his current rater and senior rater know about promotion boards and the need to have sufficient time in rank to obtain numerous positions of responsibilities and the resultant OERs to be competitive for promotion.  They have provided memoranda in support of his request.  

He has been informed that because he is not competitive for promotion to lieutenant colonel, he would not be considered for one of the requisite positions of higher responsibility such as a Deputy Staff Judge Advocate.  Because the statistics for the FY00 promotion board demonstrated that only 15.4 percent of those above the zone were selected for promotion, he was no longer competitive. In view of the small chance of being selected for above the zone promotion and in part due to being denied a competitive assignment, he has selected civilian employment with the government while awaiting the Board decision.  If his application is favorably considered, he intends to immediately reenter active duty. 

The applicant submits with his request a copy of his 5 August 1995 and              18 October 1995 applications to this Board, a copy of his OER appeal and the denial of his appeal by the Officer Special Review Board (OSRB).

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

The applicant was appointed a first lieutenant in the Reserve on 8 July 1988.  He completed the Judge Advocate General (JAG) officer basic course on                  28 September 1988, exceeding course standards.  His initial OER for the period 29 September 1988 to 2 February 1989 shows that he was a below center of mass officer.  His five OERs thereafter, including the OER he successfully contested, show that his senior raters considered him to be in the center of mass. His reports after that, beginning with the report from 28 May 1993 through           27 May 1994 and the four succeeding reports, show that he was considered an above center of mass officer by his senior raters.  He completed the Judge Advocate General officer advanced course on 27 June 1997, exceeding course standards and being placed on the Commandant’s list for his exceptional performance.

The applicant was released from active duty under the provisions of the early release program – special separation benefit on 1 April 1996.  He received a bonus of $42,323.22.  He had 7 years, 8 months, and 23 days of service.

On 26 February 1997 as a result of his 5 August 1995 application, this Board directed that the applicant’s records be corrected to amend the senior rater profile on the applicant’s OER for the period 28 May 1992 through 27 May 1993, that he be reconsidered for voluntary indefinite (VI) status, and that if selected for VI status he be reinstated to his previous active duty status, with collection of his payment of $42,323.22. 

The applicant submits a copy of this Board’s 30 April 1997 supplemental proceedings, resulting from his request of 18 October 1995 to this Board.  Those proceedings directed that his records be submitted to a special selection board for promotion to major under the 1995 criteria, and directed that he be given the opportunity to review his records and to communicate to the promotion board officials to present matters in his own behalf.  The proceedings also required that if selected for promotion, he be promoted and assigned an appropriate date of rank and that he be reinstated to his previous active duty status.  They also required that if selected, an adequate explanation in his official military personnel file be placed showing that any gap in his OERs from the date of his last report to the date of his return to an active duty status was not caused by any fault on his part and to ensure that he should not be prejudiced thereby in any future personnel actions.   

In a 30 July 1997 memorandum to the applicant the PERSCOM notified him that his OMPF had been amended in accordance with this Board’s decision, that his senior rater profile had been amended and that a statement had been placed in his records.  That statement indicates that his OER for the period 920528 – 930527 had been altered, and includes the words, “Directed by ABCMR OASA by 1st Ends to Cdr, Total Army Personnel Command dated 6 March 1997             & 27 May 1997.  This action should not be considered prejudicial to any future personnel action.”

Included is a copy of his senior rater profiles for the contested OER , the original profile and the amended profile.

On 16 March 1998 PERSCOM notified the applicant that he was selected for promotion to major with a date of rank and effective date of 1 June 1996.  He was promoted to major effective on that date.

The OER for the period 14 June 1998 through 2 April 1999 shows that the applicant was above center of mass.  His senior rater stated that he should be promoted to lieutenant colonel now.  The OER for the period 3 April 1999 through 2 April 2000 shows that the applicant was above center of mass.  His senior rater stated that he should be selected now for resident CGSC and promoted to lieutenant colonel.   

The applicant submits a copy of the FY00 LTC JAGC promotion board statistical summary and results.

The applicant submits a 25 May 2001 memorandum to this Board from the commander of the Army Kwajalein Atoll/Kwajalein Missile Range in support of the applicant’s request, in which that officer stated that he had served on two Army competitive category promotion boards, and that it was his opinion that if the applicant had the normal four to five years on active duty in the rank of major, he would have been competitive with his peers at the promotion board.  

He submits a copy of a 30 May 2001 memorandum to this Board from the Chief Counsel and Staff Judge Advocate of the Army Space and Missile Defense Command, in which that officer stated that it was his opinion that the excessive processing time of the applicant’s original OER appeal, causing his current date of rank to overlap his two year break in service as he awaited action on his case caused irreparable harm to his chances of succeeding at the FY00 promotion board.      

Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Paragraph 1-30 provides for the convening of selection boards and states in pertinent part, that a separate selection board will convene for each competitive category and grade for commissioned officers and that officers in the same competitive category will compete among themselves for promotion.  

Paragraph 1-31 provides for the composition of selection boards and states in pertinent part that a promotion selection board will consist of at least five officers on the ADL (active duty list), and that each board will include at least one officer from the competitive category under consideration.

Paragraph 1-32 provides instructions concerning the conduct of board members, states that officers chosen to participate on promotion selection boards should possess the professional characteristics and reflect the values that the Army considers to be of utmost importance.  It goes on to say that board members will ensure that their selection process is scrupulously fair and will seek guidance from the convening authority or his or her designee if questions concerning proper personal conduct arise.  Board members will not receive or introduce into the deliberations any information, good or bad, concerning an officer under consideration that should not be presented to the board; engage in, or give the appearance of, preferential treatment to any individual or group of officers under consideration; divulge details of the deliberative process except as specifically directed by the Secretary of the Army, or his authorized representative; or solicit information or guidance from branch proponents, assignment managers or major command representatives concerning individual officers or groups of officers under consideration unless authorized in the written or verbal instructions to the board.  Board members will swear to perform their duties without prejudice or partiality, having in view both the special fitness of offices and the efficiency of the Army.

Paragraph 1-33 talks about the information provided to the boards, to include the MOI (Memorandum of Instructions) provided by the Secretary of the Army.  That paragraph states that the MOI will specify, among other things, the method of selection, the factors to be considered, including the Army’s needs in each branch, functional area, or skill, and the maximum number of officers to be selected from each competitive category.  It states that selection boards are provided the performance portion of the OMPF, the officer record brief (ORB), an official photograph, if available, and approved separation documents.  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. 

Paragraph 1-35 states that promotion selection boards will base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI, and keep confidential their reasons for recommending or not recommending any officer considered.  Boards will use the fully qualified method for selection when the maximum number of officers to be selected equals the number of officers above, in, and below the promotion zone. It will use the best qualified method when the board must recommend fewer than the total number of officers to be considered for promotion.    

Chapter 7 talks about special selection boards (SSBs) and states that SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.  These boards may be convened when an officer was not considered from in or above the promotion zone by the 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.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have corrected the error in the ORB or OMPF.  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. 

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 applicant’s contention that he did not have the opportunity to be considered or serve in the same positions as his contemporaries is acknowledged.  He had not the experience in that grade as his contemporaries, and certainly did not accrue the evaluation reports in that grade as his peers. Nonetheless, the applicant had the opportunity to explain his situation to the selection board.  The board was composed of officers senior to the applicant who had a responsibility to perform their duties without prejudice or partiality.  The applicant’s contention that his nonselection was unjust and unfair is without merit. The applicant ignores the fact that many of his evaluation reports, albeit while serving as a captain, are center of mass reports, to include the report that he successfully appealed.  He was not considered among the best qualified, and consequently was not selected for promotion.  
2.  By the same token, the applicant supposes that had things not gone wrong with him, had he not been separated from active duty, had he not had the two- year interruption in his service, and had it not taken so long to appeal the contested OER, resulting in a retroactive date of rank  – he would have continued on the same course as his peers, those that were selected for CGSC and those  that were selected for promotion to lieutenant colonel.  He implies successful assignments of increasing responsibility and evaluation reports of a nature that would cause him to be selected for attendance at CGSC and promotion to lieutenant colonel.  This is speculation.  The applicant provides statistics from the FY00 LTC JAGC promotion board showing that 66 percent of those officers in the primary zone were selected for promotion to lieutenant colonel (31 out of     47 officers), and that only 46.8 percent had completed CAS3, indicating that he had completed both CAS3 and the CGSC by correspondence.  He also indicates that the average officer in the primary zone had 4.5 years time in grade, with more assignments and more evaluation reports as a major than himself, again implying that he would have been one of the 31 officers selected for promotion had his career followed a traditional path  –  again, this is speculation on his part.   
3.  The applicant would have this Board consider his record and do what the promotion board has not done – promote him or select him for promotion to lieutenant colonel; or direct that his records go before a special selection board; or alternatively, delay his entry into the primary promotion zone, not just to correct past injustices, which this Board has done, but because he believes that he would have been promoted to lieutenant colonel and selected for attendance at CGSC had he a traditional Army career.  However, as unsatisfactory as his current situation is to him, the Board believes that it has done as much as possible for him as reflected in its past decisions.  His assertion that he would have been competitive with his peers; and consequently, would have been selected for attendance at CGSC and would have been selected for promotion to lieutenant colonel over many of his contemporaries had his service not been interrupted, are conjectural and have no basis in fact.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

__CLA __  __AAO   _  __HBO__  DENY APPLICATION

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

INDEX

CASE ID	AR2001058641	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011030	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.	310	
3.		
4.		
5.		
6.