MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2000                  
	DOCKET NUMBER:   AR1999031303

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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:  In essence, set aside his nonselection for promotion  to the rank of lieutenant colonel (LTC) by the Fiscal Year (FY) 1999 LTC, Army Competitive Category (ACC), Promotion Selection Board and that he be promoted to LTC.  He also requests a personal appearance before the Board to plead his case.  

APPLICANT STATES:  In effect that there were four factors in his nonselection for promotion.  They included the fact that the promotion board by its composition and background could not fully recognize his potential as an Aviator and an Army Acquisition Corps (AAC) officer because there was not an AAC officer or an Aviation Branch officer on the board who had experiences similar enough to his, as to expect that they could have fairly evaluated an officer with his background and nonstandard assignments.  Secondly, that his file could not be recognized as one that several special instructions to the promotion board applied in his case.  He cites three specific types of duties to be considered, to include being a rear detachment commander, (instruction 7c to the Memorandum of Instruction to the Board); Joint Duty selection criteria (instruction 7f), which specified that selection rates for officers who served in such assignments were to be at the same level as the overall promotions selection rate-he noted that while he was never in a Joint assignment, that his last assignment was to classified duties with a multi-service organization in the Department of Defense and he received a Defense Meritorious Service Medal and a Joint Commendation Medal for his accomplishments in this assignment; and lastly, the fact that AAC officers were in an overstrength status prior to 1996, when the Corps was downsized.  The instructions stated that reassignment of these officers (primarily FY 83 officers) to duties in their primary branch were not to be considered negatively.  He states that he, as well as no other aviator in functional area 51, with duties as a research and development experimental test pilot, were even offered the opportunity to return to a basic branch assignment.  Therefore, he concludes that he was disadvantaged by remaining assigned to AAC assignments.  Third, that the board failed to comply with the letter and intent of Title 10, United States Code, Section 1731 (10 USC 1773) in that the promotion rate of AAC officers was below the rate of LTC's overall.  He cites statistics from the FY 1996 through 1999 LTC ACC Promotion Selection Board selection rates which show that except for FY 1997, the rates were lower for AAC officers.  In fact, for the FY 1999 board, the selection rate was 56 percent for AAC officers verses 68.8 percent for non-AAC officers.  In an additional submission to the Board, the applicant noted he received a classified Officer Evaluation Report (OER) for the rating period 13 December 1997 through 12 December 1998.  The DA Form 1613 (Cross Reference) that should have been filed on his OMPF (fiche form) to show where the classified OER was filed, was not on his OMPF at the time the promotion board met (it has since been added);  therefore, he contends his records were incomplete when seen by the Promotion Selection Board.    

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

He was appointed and commissioned as a second lieutenant, Regular Army, Transportation Corps from the United States Military Academy at West Point on 25 May 1983.  He essentially has been an aviator since that time.  He had basic officer training as a Transportation Officer and then qualified as an Aviator, both in rotary wing and multi-engine aircraft.  He has had advanced officer training as an aviator, attended a Material Acquisition Management and Maintenance Test Pilot Course, the Combined Arms and Staff Services course, the Command and General Staff College Course, the US Navy Test Pilot Course and the Advanced Program Manager Course.  He also completed a Masters Degree program in systems management in 1993 and was given a Masters Degree in Aeronautical Engineering from the California Naval Postgraduate School, also in 1993.  He was promoted to the rank of first lieutenant on 25 November 1984, to captain on 1 May 1987 and to major on 1 January 1995.  

His assignments have included duties as an Aviation platoon leader, then as an Aviation Battalion S-4 (Supply Officer), and then as a Flight Operations Officer.  He was transferred to Germany in 1989 and served there until 1994, when he was transferred  in early 1994 to Alaska.  While in Germany, he served as an Aircraft Maintenance Officer and a rear detachment commander (company commander) for his battalion while his unit deployed to Southwest Asia in connection with Operation Desert Shield/Desert Storm in 1990/1991.  He continued as a company commander after his unit redeployed back to Germany until 1994.  In Alaska he served as an Aviation Test Project Officer.  In 1996 he returned to Germany and served as an Aerospace Systems Research and Development Officer and as Chief of the Combat Systems Division of the 
US Army Military Support Division in Wiesbaden, Germany.  

The applicant's OER's have consistently been highly satisfactory.  Early on, he was rated as a center of mass (COM) officer, but as his career progressed, both as a first lieutenant and captain more reports became above COM reports.  His academic evaluations were likewise consistently good ranging from ratings of achieving course standards to exceeding course standards (both his Advanced Aviation Officer Course and his Maintenance Manager/Maintenance Test Pilot Courses in 1987-1988).  His first two reports as a major beginning in 1995 were above COM, and he also has had two annual reports which are classified, and not on the unclassified portion of his OMPF.  His three academic courses since being promoted to the rank of major have shown that he has met course standards for each school, to include the Naval Test Pilot School, the Command and General Staff College and the Advanced Project Management Course.  

The applicant was considered by the FY 99 LTC, ACC, Promotion Selection Board which adjourned in March 1999.  The primary zone of consideration  was all majors with a date of rank (DOR) of 2 July 1994 through 1 May 1995.  The secondary zone (those below the primary zone) were officers with a DOR of 
2 May 1995 through 1 March 1996.  The applicant was nonselected for promotion.

In connection with his application, his case was referred to the Officer Special Review Board (OSRB), in the Office of the Deputy Chief of Staff for Personnel for promotion reconsideration.  That office referred the case to the Total Army Personnel Command (PERSCOM).  The Chief, Promotions Branch responded and provided an advisory opinion (COPY ATTACHED) which recommended disapproval of the applicant's request.  

Essentially, the opinion noted that 10 USC 612 states that a selection board will include at least one officer from each competitive category of officers to be considered by the selection board.  However, Army Regulation (AR) 600-8-29, in its glossary, defines competitive category as officers in 16 officer branches of the Army, to include Aviation Branch.  The AAC is not one of these 16 branches.   The 1999 promotion board was comprised of 18 board members, to include the president and all members were competitive category officers, to include an Aviation Branch officer.  

The opinion then went on to state that the applicant's contention that the board failed to comply with the intent of 10 USC 1731(b) was not true.  The applicant has interpreted this as a requirement when, in fact, it is an objective.  This interpretation has been validated by legal review, which is further supported by 10 USC 1762 (c) (4) (C) which directs the Secretary of Defense to report the promotion rates of Acquisition Corps Officers to the Congress, and if the selection rate is not at least equal to the selection rate of line officers, what plans and actions the Secretary of Defense will take to rectify the situation.  Therefore, there would be no need to report selection rates and plans to correct the situation of lower selection rates if there was a mandate to promote such officers at the same rate as contemporary line officers.

The PERSCOM then advises that a review of the classified OER in question was made and that, the applicant's OER for the rating period 13 December 
1997 through 12 December 1998 is annotated with a pentagon shaped, double- lined stamp, with the number "99" in the center on the OER;  this stamp indicates that the report was seen by the Promotion Selection Board in question.

In regards to the special instructions on the Letter of Instruction to the selection board, which is dated 25 February 1999 from the Secretary of the Army, paragraph 7 contains a number of special instructions to include the three cited by the applicant concerning Rear Detachment Commanders, Joint Duty Selection and the problem with reduction in the strength of ACC officers in 1996 in year groups 82 and 83 officers, and that those officers so selected to return to their basic branches would not be penalized.  Additionally, paragraph 7g of that same letter discussed the requirement for the selection rate of AAC officers to be at a rate not less than the rate for all officers selected by the board.  If the board did not meet this objective, the board president would be required to include the reasons in his report.  

The opinion also notes that the selection boards are made up of senior officers with exceptional records of performance and a wealth of experience.  The collective considered judgement of these officers as to the relative merit of one officer's file against another serves as the basis for final selections for promotion. Selection boards are precluded by law and regulation (AR 600-8-29, paragraph 1-32c(3), from divulging the details of the deliberative process (other than a general description of board procedures), before, during , or after the board to outside parties, expect as specifically by the Secretary of the Army or his authorized representative.  

The advisory opinion was referred to the applicant for review and comment, but he failed to respond.

Army Regulation 15-185, the governing regulation for this Board states, in pertinent part, at paragraph 2-11, that applicants to the ABCMR do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.  The Board is also empowered to recommend a formal hearing based upon their review of the facts in the case.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  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, in this case, has failed to submit evidence that would satisfy that requirement.  Further, he has established no basis for a personal appearance before this Board.   

2.  The Board notes that the applicant was considered for and nonselected by a the FY 1999 ACC, LTC, Promotion Selection Board for promotion to the rank of LTC.  

3.  He has failed to provide any evidence that his records were incomplete or improperly constituted at the time he was considered for promotion.  The Board does not find that the lack of a DA Form 1613 cross-referencing a classified OER in his OMPF is a significant error.  In fact, the OER in question is annotated to the effect that it was included in his file at the time his records were considered.

4.  The applicant's contention that the Promotion Selection Board did not include an officer from "either the Aviation Branch or the Acquisition Corps, who had experiences similar enough to my own, as to expect that they could have fairly evaluated an officer with my background in the nonstandard organizations and duty positions" in which he served is noted.  However, the Promotion Selection Board was properly constituted and included an aviation officer.  There was no requirement for an AAC officer to be on the board.  Even if such an officer was on the board, this is no guarantee that the applicant would have been selected for promotion.  It takes a majority of the Promotion Selection Board to select an officer for promotion, not just one or two officers.  

5.  Further, his contentions that the special instructions as pertained to rear area commanders, special selection criteria for officers assigned to Joint Duty assignments and to AAC assignments were disregarded are not supported by any evidence of error or injustice on the part of the membership of the Promotion Selection Board.  These members were all senior officers, well versed in the requirement for maintaining a qualified officer force and there is no indication that they were not well suited to compare his file against all the other majors being considered for promotion to LTC.  They fully understood the impact of nonselection and there is no indication that they took lightly their sworn duty to recommend the best qualified officers for promotion.   

6.  This Board is likewise satisfied that, even though the selection rate for AAC officers was below the overall selection rate, there was no mandate established by law or regulation that AAC officers had to be selected for promotion equal to or above the overall selection rate.  There are adequate procedures for identifying this disparity and the requirement existed for the Promotion Selection Board President to report the reasons for the lower selection rate to the Army staff who, in turn would report it to the Department of Defense, and ultimately to the Congress.  

7.  This Board has historically not been inclined to impose its collective judgement in place of a properly constituted Department of the Army Promotion Selection Board absence any evidence of error or injustice on the part of such a board.  

8.  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

__aao___  __mhm__  __tfb____  DENY APPLICATION

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

INDEX

CASE ID	AR1999031303	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	131.01	
2.	131.10	
3.		
4.		
5.		
6.