PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            9 September 2003
	DOCKET NUMBER:   AR2003086725

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan		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 promotion reconsideration to the rank of colonel under the criteria used by the Fiscal Year (FY) 2000 Colonel Dental Corps Promotion Selection Board.

3.  The applicant states, in effect, that he has been unjustly denied promotion reconsideration by the Officer Special Selection Board (OSRB) because that board incorrectly opined that he had not exercised due diligence to ensure that his record was up to date before the promotion board convened.  He continues by stating that he did in fact check his records and made a trip to see his officials in his branch at the Total Army Personnel Command (PERSCOM) prior to the board convening.  However, at the time, neither himself nor officials in his branch recognized that an officer evaluation report (OER) for the period of 18 December 1990 through 21 August 1991 was missing from his Official Military Personnel File (OMPF).  He goes on to state that he was not selected by that board and it was not until an astute board member on the FY2001 selection board recognized that there was period missing that it was discovered that the original OER was in his branch file and had not been placed on his microfiche.  Consequently, he was selected by that board for promotion to the rank of colonel, above the zone.  He also states that given the number of times that his records have been reviewed by selection boards and himself, it is easy to see how one missing document can escape detection.  He further states that he should be afforded the opportunity for reconsideration because he did exercise due diligence and made the effort to ensure his records were accurate and complete.  

4.  The applicant’s military records show that he was commissioned as a United States Army Reserve (USAR) second lieutenant on 17 May 1980, upon graduation from Virginia Military Institute.  He entered active duty in the rank of captain on 19 June 1984 as a Dental Corps officer.  He was promoted to the rank of lieutenant colonel (LTC) on 19 June 1996.  He was considered for promotion to the rank of colonel by the Fiscal Year (FY) 2000 Colonel Dental Corps Promotion Selection Board and was not selected; however, he was selected the following year by the FY2001 selection board.  He was promoted to the rank of colonel on 1 October 2002.

5.  On 16 September 1991, while serving in the rank of major, the applicant received a senior rater option OER; however, for reasons that are not explained in the available records, the OER was not filed in the applicant's OMPF until he was considered by the 2001 Colonel selection board.  The OER covered the period from 2 December 1990 through 23 August 1991. 

6.  The applicant submitted a request to the OSRB for promotion reconsideration by the FY2000 Colonel Selection Board, based on the absence of the OER from his OMPF.  The OSRB denied his request and opined that the applicant had not exercised reasonable diligence in discovering and attempting to correct the errors in his records prior to being considered for promotion and that the absence of the OER from his records would not have resulted in a reasonable chance of his being selected had it been present. 

7.  Army Regulation 600-8-29 provides the policies and procedures for convening standby advisory boards.  It provides, in pertinent part, that standby boards are formed to prevent an injustice to officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board or were failed to be reviewed.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s nonselection by a promotion board.  Had such errors been corrected at the time the individual been considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  Headquarters will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence, could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Department of the error and providing any relevant documentation.

CONCLUSIONS:

1.  Although this Board does not have the ability to determine if a reasonable chance existed for the applicant to be selected had the OER in question been properly filed in his OMPF, it is reasonable to presume, given his selection the following year that such was the case. 

2.  The Board also notes that while the applicant should have been aware that an OER was missing from his OMPF, the same burden fell on the Department to ensure that all periods of service were covered by an evaluation report of some type or that the period was deemed non-rated time.

3.  The Board further notes that the OER in question was intended to be reviewed by the Board that considered him for promotion to the rank of LTC; however, the Department failed to properly process the report and file it in his OMPF.  Given the importance placed on the OER by the Department, the Board finds that the omission of an OER is a significant material error and that the burden of discovering such an error is equally shared between the applicant and the Department.

4.  Accordingly, the Board finds that in fairness to all concerned, it would be in the interest of justice for the applicant to receive promotion reconsideration to the rank of colonel under the same instructions followed by the FY2000 Colonel Dental Corps Selection Board.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by placing the applicant's records before a special selection board for consideration for promotion to the rank of colonel under the same instructions followed by the FY2000 Colonel Dental Corps Promotion Selection Board and if selected, that he be given the appropriate date of rank, back pay and allowances commensurate with his selection.

BOARD VOTE:  

___slp __  ___tap___  __wtm __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell____
		        CHAIRPERSON

INDEX

CASE ID	AR2003086725	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/SSB	
2.		
3.		
4.		
5.		
6.