RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  25 March 2004
	DOCKET NUMBER:  AR2003091750

	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. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Lester Echols		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, promotion reconsideration to colonel and retroactive promotion.

2.  The applicant states that he was not provided due process because the majority of his official military personnel file (OMPF) was not available for review by the promotion selection boards and the special selection boards (SSB's).

3.  The applicant provides a chronology statement dated 26 May 2003, copies of correspondence and electronic mail correspondence between the Army Reserve Personnel Center and himself, his promotion status memorandums, his attainment of maximum service memorandum, and separation orders.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show that he was commissioned in the Regular Army as a second lieutenant effective 8 June 1973, with prior enlisted service.

2.  He was promoted to captain effective 15 March 1982 with a date of rank of 6 June 1977.

3.  He was discharged from the Regular Army as a captain effective 23 October 1987 for failure of selection for permanent promotion.

4.  He was appointed in the Army Reserve effective 23 November 1987.  He was assigned to a Reserve troop program unit effective 5 July 1988.

5.  He was promoted to major effective 1 August 1988, with a date of rank of 24 October 1987.

6.  He was reassigned to the Individual Ready Reserve effective 16 March 1993. He was promoted to lieutenant colonel effective 23 October 1994.

7.  He was considered and not selected for promotion to colonel by the 1998, 1999, and 2000 Reserve Components Selections Boards (RCSB's).

8.  Based upon review of the applicant’s records by the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), it was determined that the applicant’s OMPF contained material error when he was considered and not selected for promotion to colonel by the 1998, 1999, and 2000 RCSB's.  He was considered and not selected for promotion to colonel by SSB's under the 1998, 1999, and 2000 criteria.

9.  He was transferred to the Retired Reserve effective 4 May 2001.

10.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, PERSCOM, expressed the opinion that the applicant's file, when reviewed by the 1998, 1999, and 2000 RCSB's and SSB's included verification of his completion of the Command and General Staff Officers Course (CGSOC).  His file, when originally reviewed by the mandatory Reserve boards, did not include all of his Officer Evaluation Reports (OER); therefore, he was considered for promotion to colonel by SSB's under the 1998 through 2000 criteria.  The special board files included the applicant's reports from 18 October 1973 through 13 March 1993, reports ending 12 September 1994, 8 September 1995 and 18 October 1997.  His report ending 18 October 1998, was viewed by the 1999 and 2000 RCSB's and SSB's for those criteria.  The report ending 18 October 1998 was after the 1998 RCSB; therefore, the report was not eligible for consideration by the 1998 RCSB or the SSB under the 1998 criteria.

11.  The opinion also stated that the applicant was notified in February 2000, that a report ending 12 April 1996, was not in his file and asked him to provide a copy of the report.  The report ending on that date was never received from the applicant and his file was considered by the SSB's without the report.  The SSB's non-selected the applicant for promotion and statutory requirements prevent disclosure of board proceedings to anyone not a member of the board; therefore, the reasons for his non-selections are unknown.  His microfiche record includes all of his available reports and completion for CGSOC.  In view of the facts presented, the applicant does not have a basis for SSB consideration and it was recommended that his request be denied.

12.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 10 October 2003.  He did not respond.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a SSB may only be based on erroneous non-consideration or material error, which existed in the records 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.

14.  This regulation also specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other corrections.  Lack of notification does not provide an independent basis to be reconsidered by an SSB.  An administrative error is immaterial if the officer, in exercising reasonable diligence, could have discovered the error or omission and taken timely corrective action notifying Headquarters, Department of the Army with supporting documentation.

15.  Official records and promotion board procedures require that Departmental Senior Rater Profiles be affixed to OER’s prior to filing in individual’s records and completed 90 days prior to review by a promotion selection board.  Only a profiled OER will be reviewed by a SSB.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to colonel and retroactive promotion.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that the promotion selection boards and the special boards did not review his entire OMPF has been noted.  Based on a review of his records, his file did not include all of his OER's when mandatory promotion boards considered him under 1998 through 2000 criteria.  When his records were reviewed by the SSB's it included all of his available OER's and civilian and military education completion documents.  A properly profiled and accepted OER for the period ending on 12 April 1996 was still not available.  His microfiche file provided to the Army Board for Correction of Military Records also did not include the report ending 12 April 1996.

3.  Because promotion selection boards and special boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of why the applicant failed to be selected for promotion to the next higher grade.  In this regard, it must be noted that those boards that considered the applicant for promotion were instructed to select only those who were considered best qualified for promotion to the next higher grade.  Accordingly, it must be presumed that, when reviewed by promotion boards, the applicant’s overall records failed to meet the standards established for selection on a best qualified basis.

4.  It is noted that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of a RCSB determining an individual's potential and ability to perform at the higher grade.  Promotion and retention is keenly competitive, and many officers will not be selected.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ls___  ___to_____  ___le____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		____Luther L. Santiful___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091750	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040325	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.