MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           15 August 2000                  
DOCKET NUMBER:   AR1999032966

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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: Reconsideration of his application to correct his records by;

1.  promoting him to lieutenant colonel, 

2.  placing him on the next available battalion commander’s list; 

3.  changing his 860616-870615 Officer Evaluation Report (OER)  to correspond with his retroactive promotion and date of rank;

4.  removing the non-prejudicial statements placed in his records as a result of prior administrative actions; and,

5.  correcting his records to remove what he considers to be the irregularities, errors and discrepancies in his records.  

6.  The applicant also requests a personal appearance hearing.

APPLICANT STATES:  In effect, that the Army Secretariat inadvertently prejudiced his promotion by first denying the inclusion of a letter into his promotion packet and then allowing it with directions to the board to revote the packet.  He contends that the incomplete correction of the appealed Officer Evaluation Reports (OER) by the Officer Special Review Board (OSRB), in March 1994 and this Board in November 1994 has created a prejudicial evaluation of his promotion potential.  He contends that the Board had no regulatory rationale for refusing to fully correct his file of errors, irregularities and discrepancies.  The opinions of senior officers who have served on promotion Boards substantiate his contentions.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 1 September 1999 (COPY ATTACHED).  Also attached are the Board’s decisions of 16 November 1994 and 2 September 1998 as they are relevant to issues addressed.

The applicant’s submissions are new evidence and argument that require Board consideration.

The applicant submits lengthy personal arguments outlining what he contends are irregularities in his records both as they were when presented to the lieutenant colonel selection board and during subsequent reviews by the OSRB and this Board.

He also submits statements, from a major general, a colonel and a lieutenant colonel, which are in his chain of command or previously served on selection boards.  These statements offer the opinions that the only negative factor in the 
applicant’s record is the information relating to his successful OER actions.  They opine that the selection board disregarded the non-prejudicial statements and considered the blocked out profiles as derogatory information.

There is no statutory or regulatory right to a formal hearing.  Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information

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.  There is no evidence that the applicant was improperly considered and not recommended for promotion to lieutenant colonel.  Without a favorable promotion consideration placement on the battalion commander’s list is not appropriate.

2.  The applicant has not convinced the Board he is entitled to promotion to lieutenant colonel without being considered and recommended by a selection board that compared his record against that of his peers.

3.  The applicant’s rank on the 860616-870615 OER is correct.  The applicant served as a captain and was properly rated as such during this entire period.  Regardless of the official retroactive date of his promotion, he did not serve as a major during this period.

4.  When a document in a service member’s record is altered to delete a portion, law requires an explanation of that change.  The non-prejudicial statements in his record covering the gaps in his evaluation have been prepared and entered in accordance with the governing regulation.  The Board concludes that removal a non-prejudicial statement is improper and would be more detrimental to the applicant’s record than leaving it intact.

5.  The opinions offered in support of the applicant are speculative in nature and do not demonstrate an error or injustice by the selection board, the OSRB or this Board.

6.  The applicant has submitted only opinions but no evidence that indicates that the selection board ignored the non-prejudicial statements or that the revote procedure was improper.  The Board concludes there is no findings of irregularity, error or discrepancy in the record.

7.  The Board concludes that the applicant received proper and reasonable consideration of his previous appeals and that appropriate relief was provided.  He has not shown otherwise.  

8.  The Board acknowledges that the applicant appears to have a good and competitive record of 20 years commissioned service.  However the Board also notes that promotion to lieutenant colonel is highly competitive and that many good officers may not be recommended. 

9.  The Board concludes that a formal hearing is not warranted in this case.
  
10.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

11.  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

__TDH__  __AAO __  __GJW__  DENY APPLICATION

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

INDEX

CASE ID	AR19999032966	
SUFFIX		
RECON	 	
DATE BOARDED	20000815 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.	129.00	
3.	131.01	
4.	131.09	
5.		
6.