PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           16 October 2001                  
	DOCKET NUMBER:   AR2001063236

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Regan K. Smith 		Member	
	Mr. Donald P. Hupman, Jr.		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, promotion consideration to colonel.  

3.  The applicant states that he was erroneously excluded for consideration for advancement to colonel during the years 1995 through 1999.  He also states that on 17 November 2000, he submitted a special selection board (SSB) consideration request.  On 4 April 2001, he received a response from the board indicating omissions from his file for the board during the years 1995 through 1999.  The response also indicated the Army Board for Correction of Military Records must approve any criteria for promotion to colonel prior to 1997.

4.  Based upon review by the Office of Promotions, Reserve Components, Total Army Personnel Command, the applicant’s official military personnel file (OMPF) contained material error when he was considered and non-selected by the 1995 Reserve Components Selection Board.  

5.  Current promotion policy specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which 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 non-selection 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 non-selection, except where an individual is not qualified due to non-completion of required military schooling.

6.  Under the Reserve Officer Personnel Management Act implemented on 1 October 1996, any request for reconsideration by an SSB for officers in the grade of captain and above for year criteria after 1 October 1996, must be submitted by the officer to the Office of Promotions, Reserve Components, PERSCOM.

7.  Army Regulation 15-185 establishes procedures for making application, and the consideration of applications, for the correction of military records by the Secretary of the Army acting through this Board.  This regulation specifies that no application will be considered until the applicant has exhausted all effective administrative remedies afforded him/her by existing law or regulations, and such legal remedies as appropriately available to the applicant.

CONCLUSIONS:

1.  The applicant’s records contained material error when reviewed for promotion to colonel and should now be submitted to SSB’s, as appropriate, for promotion reconsideration.
2.  It is also noted that the applicant has not exhausted his administrative remedy concerning reconsideration for promotion under 1997, 1998 and 1999 criteria by requesting promotion reconsideration directly to the Office of Promotions.

3.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the complete file of the individual concerned on the OMPF.

2.  That following administrative implementation of the foregoing, his records be submitted to duly constituted SSB’s as appropriate.

3.  That if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefor, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

4.  That if the applicant was separated because of his non-selection, his records be further corrected to show:

	a.  that his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve;

	b.  that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

	c.  that all documents related to his now-voided non-selection for promotion, and his discharge or transfer be expunged from his official military records.

5.  That if not selected, the applicant be so notified.

6.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_rks____  _dpk____  _rvo____    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		  Raymond V. O'Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001063236	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.