PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR1999033805

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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, in effect, reconsideration for promotion to Lieutenant Colonel (LTC) by a Special Selection Board (SSB).  

3.  The applicant states, in effect, that a material error existed in his record that was reviewed by the 1999 LTC promotion selection board.  He claims that when his record was reviewed by this selection board, his Officer Record Brief (ORB) reflected a Military Education Level (MEL) of 5, which identified him as a Command and Staff College (CSC) selectee, as opposed to MEL 4 that would have identified him as a CSC graduate.  

4.  The applicant bases his material error claim on the fact that the Leader Development Branch (LDB) of the Army Personnel Command (PERSCOM) followed an unwritten policy of upgrading the MEL code of CGSC students to MEL 4 approximately two months after their arrival at the course.  He contends that based on this policy his ORB should have been updated to reflect MEL 4
in October 1999, five months prior to the convening of the 1999 LTC selection board in March 1999.  He further claims that every other officer attending the CGSC at the time had the advantage of competing for promotion to LTC with a 
MEL 4 code.  

5.  The applicant further states that his MEL code is extremely important when you take into account the related promotion selection statistics.  These statistics show that there is a 93% selection rate for MEL 4 Majors (MAJs) versus a 
1% selection rate for non MEL 4 MAJs.  This he contends establishes a high probability of non-selection for non MEL 4 MAJs.  He goes on to indicate that he did not raise this issue when he initially reviewed his promotion ORB because at that time he was not aware of the unwritten MEL coding policy followed by the PERSCOM LDB.

6.   In support of his application, he includes the enclosed personal statement which contains his expanded argument, a statement from the CSC Program Manager of the PERSCOM LDB, and a statement from the Infantry Field Grade Assignments Officer from his career branch at the PERSCOM. 

7.  The applicant’s military records show that on 16 May 1983 he entered active duty as a 2nd Lieutenant in the Infantry.  He has continuously served on active duty to the present, and he was promoted to the rank of MAJ on 1 December 1994. 

8.  On 24 January 1999, the applicant reviewed his promotion ORB, which would later be reviewed by the 1999 LTC promotion selection board.  This document listed a MEL 5 code (CSC Select), in Section VI (Military Education).  It also showed in Section IX (Assignment History) that his assignment at that time was the United States Army Command and Staff College (USACGSC), Student Detachment CGS, Fort Leavenworth, Kansas, and that his duty title was Student. 

9.  On 6 August 1999, the CSC Program Manager of the LDB of PERSCOM, provided the applicant a memorandum, subject “MEL Status of Resident CGSC Students.”  This memorandum verified that it was LDB policy to designate officers in attendance at CGSC as MEL 4 approximately two months after their arrival at the course.  The purpose of this policy is to facilitate the distribution and assignment of MEL 4 officers which are generally worked well before official graduation.  The LDB indicated this is sound practice given essentially all these officers ultimately graduate.  

10.  On 14 September 1999, the Officer Special Review Board (OSRB) reviewed the applicant’s request for promotion reconsideration.  In their discussion of the case, the OSRB commented that the applicant’s promotion ORB did indicate that he was a MEL 5 (CSC Select); however, they commented that Section IX made it clear that he was assigned to Fort Leavenworth as a CGSC student.

11.  In addition, the OSRB stated that notwithstanding unwritten LDB policy to update MEL codes on officers at CGSC two months after their arrival at the course, the records information regulation identifies the Academic Evaluation Report (AER) as the source document for effecting a MEL change on the ORB.  Given this, they finally opined that the applicant’s case did not qualify for review by an SSB because it failed to meet the material error test of the regulation.  

12.  The OSRB concluded that even though the applicant’s MEL code was not automatically converted, the MEL level annotated (CSC Select) and the statement that the applicant was a student at Fort Leavenworth itself did not materially change the quality of the applicant’s promotion file nor was the ORB annotation contrary to regulatory guidance.  Accordingly, on 15 September 1999, the PERSCOM Chief of the Promotions Branch disapproved the applicant’s request for promotion reconsideration based on the results of the OSRB review. 

13.  The PERSCOM Infantry Officer Field Grade Assignments Officer provided a statement to this Board in support of the applicant’s request.  He indicated that after his review of the applicant’s case he concluded that the applicant was at a competitive disadvantage when he was considered for promotion to LTC by the 1999 LTC promotion selection board. 

14.  The Infantry Assignments Officer stated that his review showed that of the 208 non MEL 4 officers who appeared before the last two LTC selection boards, only one was promoted, and the applicant’s promotion ORB reviewed by the LTC selection board reflected that he was he was in a non MEL 4 status.  He also commented that of the 28 CGSC students who competed for promotion during the last two LTC selection boards, 27 did so as MEL 4, and 25 were selected for promotion to LTC.  He concluded that these statistics lead him to believe the applicant was disadvantaged by the MEL code listed in the promotion ORB that was reviewed by the 1999 LTC selection board. 

15.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policy for officer promotions.  Chapter 7 contains procedures for managing SSBs.  It states, in pertinent part, that SSBs may be convened to reconsider commissioned or warrant officers for promotion when discovers that the board that considered an officer from in or above the promotion zone did not have before it some material information.  

16.  Paragraph 7-3b states, in effect, that cases will not be considered by an SSB if an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF.  It further states that the ORB is a summary document of information generally available elsewhere in the officer's record, and that it is the officer's responsibility to review the ORB and OMPF before a promotion board convenes and to notify the board of possible administrative deficiencies in them. 

CONCLUSIONS:

1.  The OSRB determination that there was no material error in this may be technically correct, given the regulatory guidance that identities the AER as the source document for updating MEL codes.  However, the Board finds the OSRB denial is not the appropriate resolution of this case.  The Board finds that there is much stronger evidence supporting relief in this case.  

2.  In the opinion of the Board, the primary issue in this case is not whether or not the applicant’s promotion ORB was technically correct based on the regulatory guidance, as alluded to by the OSRB.  Rather, the overriding factor is was the applicant in fact denied a benefit given to all other CGSC students when his promotion ORB was the only one not posted based on the unwritten LDB MEL coding policy.

3.  The evidence reveals that it was the policy of the PERSCOM LDB, as they openly admit, to update the MEL code record entries on all CGSC students two months after their arrival at the course.  It is also clear from the evidence of record that the applicant was the only officer in his class that did not have his MEL code updated under this policy.  Therefore, the Board finds that the applicant was unfairly denied a benefit provided to his contemporaries, and this injustice resulted in his being placed at a competitive disadvantage with his peers. 

4.  In addition, the Board finds that the statistics provided by the PERSCOM Infantry Branch clearly establishes the importance placed on the MEL 4 code in the LTC selection process.  The Board finds it inconceivable to ignore these statistics in considering the applicant’s request for SSB reconsideration.  Thus, in the interest of justice and equity, the Board concludes it is appropriate to grant the applicant promotion reconsideration by a SSB.  

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

RECOMMENDATION:

That the individual concerned be granted promotion reconsideration by a SSB for promotion to LTC, under the criteria used by the 1999 LTC promotion selection board, with a MEL 4 code and that if this results in retroactive promotion he be provided any back pay and allowances due as a result.

BOARD VOTE:  

___mvt__  ___kwl __  ___elw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Edward Williamson____
		        CHAIRPERSON

INDEX

CASE ID	AR1999033805	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.