MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 May 2000
	DOCKET NUMBER:   AR1999033651

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Steuve		Member	
	Ms. Carol Jo Suiter		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:  Retroactive promotion to the rank of major and placement on the Retired list in that grade.

APPLICANT STATES:  In effect, that he was unjustly denied an equal opportunity to succeed, due to discrimination that resulted in his being forced to retire while he was still being considered for promotion.  He goes on to state that he came out as the second name on the 1999 Army Competitive Category (ACC) Major Promotion Selection List but was retired in the rank of captain before that list was released.  He continues by stating that he outlined what would happen to him in his 1996 response to a routine Equal Opportunity (EO) survey and everything he predicted has come to pass.  In addition, he filed an official complaint to the Department of the Army Inspector General (IG) in the 1997/1998 time frame and was informed that the complaint had been passed on to the Department of Defense Inspector General (DODIG); however, he has never received a response to his complaint.  He also states that he realizes that it is impossible to promote everyone but his records will show nothing but significant contributions to the nation and its defense over the past 20 years.  He also believes that he has more experience and awards than most of the captains that were promoted ahead of him.  Additionally, five of the seven officer evaluation reports (OER) he received as a captain were top block ratings from his senior rater (SR) and two were second block ratings.  All of his reports had excellent write-ups and recommended that he be promoted ahead of his contemporaries.  Therefore, someone should have to explain why he was not promoted with his year group and why was he selected when it was too late for him to accept it.  He also contends that the Army has a problem; in that minorities are not receiving a fair share of promotions and the problem should be corrected.  Therefore, he should be reinstated to active duty in the rank of major with a retroactive date of rank commensurate with his year group or as a minimum, be placed on the Retired list in the rank of major.  He outlines his contentions in a two-page letter included with his application.

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

The applicant initially served as an enlisted soldier from 14 September 1977 to 11 September 1985 when he was honorably discharged in the pay grade of E-5 on the expiration of his term of service.  He had served 7 years, 11 months, and 28 days of total active service.

On 15 May 1987, upon graduation from ROTC, he was commissioned as a USAR second lieutenant with a concurrent call to active duty.  He was detailed as a transportation corps officer and accepted a Regular Army appointment on 20 June 1988.  He was promoted to the rank of captain on 1 January 1992.

On 15 October 1998 he was notified by The Adjutant General that he had been twice nonselected for promotion to the rank of major and that in accordance with Title 10, Unites States Code, Section 632, he must separate/retire from the service on the first day of the seventh month after the month the Secretary of the Army approved the promotion board results.  The notification also informed him that he had the option of requesting voluntary retirement for length of service or being mandatorily retired due to failure of selection for promotion.

Although the available records do not contain a copy of his request for retirement, they do contain a duly constituted report of separation which shows that the applicant was honorably released from active duty in the rank of captain on 31 July 1999 and was placed on the Retired list effective 1 August 1999.  He had served 20 years and 9 days of total active service.

A review of the applicant’s OER’s shows that he received seven OERs while serving as a captain and all were deemed COM by virtue of the SR’s profile.  He had also completed the CAS3 course and was awarded the Meritorious Service Medal, the Joint Service Commendation Medal, the Army Commendation Medal (8th award), the Joint Service Achievement Medal, the Army Achievement Medal, the Army Good Conduct Medal (2d award), the National Defense Service Medal, the Humanitarian Service Medal, the NCO Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon (2d award), and the Army Recruiter Badge.

In the processing of this case a staff member of the Board contacted officials at the Total Army Personnel Command (PERSCOM) Promotions Branch to ascertain when the 1999 ACC Major Promotion List was released.  Officials at the PERSCOM indicate that the ACC 1999 Major Promotion Selection Board convened on 20 April 1999, adjourned on 19 May 1999, and the results were released on 7 October 1999.  The Senate confirmed the list on 19 October 1999 and the applicant was number “2” on the selection list.

Title 10, Unites States Code, Section 632 provides, in effect, that a Regular Army officer serving in the rank of captain or major who has failed selection to the next higher regular grade for the second time and whose name is not on a list of officers recommended to the next higher regular grade shall be separated from the service, or retired if eligible, not later than the first day of the seventh calendar month beginning after the month in which the President approves the report of the board which considered him or her for the second time.  Title 10 also provides that until such time as a list has been approved by the appropriate official, the proceedings of a selection board cannot be disclosed to any person not a member of the board. 

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.  Although the Board is not an investigative agency, it is a well known fact that promotion selection boards do not reveal the basis for selection or nonselection of individuals considered.  Therefore, the applicant’s contention that he was unjustly nonselected and that he was better qualified for promotion than those who were selected is speculative at best on his part. 

2.  Accordingly, it would not be appropriate at this time for the Board to second guess the promotion selection boards that reviewed his records and had the benefit of reviewing all of the records of the applicant’s year group as well, and as a result, determined that he was not among the best qualified for the promotions that were available at that time.

3.  The applicant’s contention that he was unjustly denied promotion with his year group because of discrimination not only appears to be without merit but appears to be speculation on the part of the applicant that has not been supported by any evidence. 

4.  The applicant’s contention that he should be reinstated to active duty because had he known he was on the selection list for promotion he could have requested retention on active duty in order to accept the promotion is without merit.  Until such time as a thorough legal review has been accomplished and the list has been approved by the appropriate official, a promotion selection list is not official and does not serve as a basis to negate the provisions of law as they relate to mandatory separation due to nonselection for promotion.

5.  While it is unfortunate that the applicant was recommended for promotion but was never actually promoted; this in itself does not constitute a basis to grant gratuitous promotions.  It is not uncommon for personnel who are on a promotion selection list to separate from the service before their sequence number is reached or before a selection list is officially released.  Such occurrences do not constitute an error or injustice.

6.  The Board notes that while there are many excellent officers that are not selected for promotion during all selection boards that are convened, this in itself is not an indication that a board is flawed or that discrimination was the resultant cause.  It is simply a matter of there being more good officers eligible for promotion than there are promotion allocations.  Given this equation, it is only logical that those officers with the very best records of performance and demonstrated potential be selected to fill those available positions. 

7.  The Board receives many such requests from soldiers for an explanation as to why they were not selected for promotion.  Inasmuch as the applicant has provided no evidence to support his contention that the selection process was flawed and since the Board does not have the benefit of comparing his records to those of his peers, as did at least two selection boards, the Board is unable to offer him an explanation regarding his nonselection. 

8.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

9.  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

____cs__  ___ls ___  ___jps___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033651	
SUFFIX		
RECON		
DATE BOARDED	2000/05/04	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/promotion	
2.		
3.		
4.		
5.		
6.