MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR1999034410

	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:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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:  Promotion reconsideration to the rank of colonel (COL).

APPLICANT STATES:  In effect, that he was selected by The Judge Advocate General (TJAG) of the Army to command a legal support organization (LSO), a position authorized to be commanded by a COL, and he provided the documents indicating his selection to officials at the Army Reserve Personnel Command for inclusion in his promotion file.  However, for reasons unknown, the documents were not made a part of his promotion file and were not seen by the Board.  He further states that the failure of the promotion board to review the documents constitutes a material error; in that, the board was not aware of his selection (true status) and he has been denied the opportunity to compete effectively for promotion.  In support of his application he provides copies of the documents in question.

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

On 7 July 1998, while the applicant was serving as a USAR lieutenant colonel (LTC) in the Judge Advocate General’s Corps, a memorandum was issued by TJAG to the Army Reserve Personnel Command (ARPERSCOM) indicating that the applicant and five other officers had been selected as LSO commanders effective 18 July 1998.

The ARPERSCOM issued a subsequent memorandum on 10 July 1998 which specified which units the officers would command.

On 11 November 1999 the applicant submitted a request for promotion reconsideration to the ARPERSCOM requesting that he be reconsidered for promotion to the rank of COL by a standby board for the 1998 COL promotion selection board.  The basis for his request was that the promotion selection board did not review the memorandums designating him as a commander.

On 21 December 1999 the ARPERSCOM responded to his request and indicated that his records were considered by the 1998 COL Reserve Components Selection Board during the period 14 July to 14 August 1998 and that all critical elements of his records were presented to the board.  Officials at the ARPERSCOM also indicated that in accordance with the applicable regulation, critical elements are defined as evaluation reports, highest civilian and military education, and awards of the Silver Star or higher.  Evaluation reports to be considered by the board must have a through date of 90 days prior to the convening date of the board.  Accordingly, the memorandums indicating his selection for command were not considered critical elements and his request was denied.

In the processing of this case the ARPERSCOM Office of Reserve Components Promotion provided the Board with an advisory opinion on the applicant’s case which opined, in effect, that the memorandums in question did not constitute a basis for promotion reconsideration.

The advisory opinion was provided to the applicant who responded to the effect that it is an undisputed fact that the documents were properly provided to the board, but through some administrative error, the board was not provided the opportunity to review the documents.  He further opines that the word material error under the law means that a fact is material if it has a tendency to prove or disprove a fact at issue.  In this case, the fact is whether the 1998 COL Promotion Selection Board had all of the facts before them when his file was considered.  He contends that the Board should consider the fact that the regulation should be construed in favor of the soldier, that justice will not be served if he is not provided an opportunity to go before a standby board, and that the standby board should have the opportunity to consider his full record. 

Army Regulation 135-155 prescribes the policies and procedures used in the selection and promotion of officers in the USAR.  It states, in pertinent part, that the purpose of standby advisory boards is to prevent any injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a promotion selection board for consideration or contained a material error when reviewed by the selection board.  A material error consists of missing or flawed evaluation reports, highest civilian/military education not reflected, awards of the Silver Star or higher missing, adverse information pertaining to another person present in the officer’s Official Military Personnel File (OMPF) or adverse information that was seen by a selection board and was subsequently removed.

That regulation also prescribes the procedures to be used by selection boards.  It states, in pertinent part, that promotion selection boards will be provided a promotion consideration file (PCF) for each eligible officer.  The PCF will contain the performance fiche of the OMPF, an officer record brief (ORB), a personnel qualification record (PQR), an official photograph, and any personal communications from the eligible officer addressed to the president of the board (third party correspondence sent to the board will not be considered). 

Army Regulation 600-8-104 prescribes which documents will be placed in the OMPF.  It states, in pertinent part, that only documents listed in that regulation are authorized for filing in the OMPF.  There are no provisions for filing memorandums which designate officers for command contained in that regulation.

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(s), 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 has failed to submit evidence that would satisfy this requirement.

2.  The Board notes that not only were the memorandums in question not authorized for filing in the OMPF or inclusion in the PCF, the effective date of his assumption of command was not effective until after the promotion selection board had convened.  Accordingly, they did not meet the established cut-off date announced for the board and were properly not considered by that board.

3.  While the Board understands the applicant’s concerns, it finds that to grant the applicant promotion reconsideration would serve no purpose because the promotion selection board is not authorized to review the documents in question. To do so would afford him a benefit not afforded to others in similar circumstances. 

4.  The Board also notes that the applicant had the option of writing a letter to the president of the promotion selection board and although he could not submit the memorandums in question with his letter, he could have addressed the information contained in them and made the board aware of any information he believed was important for them to know.

5.  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

___slp___  __ao____  ___lm___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034410	
SUFFIX		
RECON		
DATE BOARDED	2000/06/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  311	131.0100/STAB	
2.		
3.		
4.		
5.		
6.