MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 February 2000  
	DOCKET NUMBER:   AR1999034656

	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.

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 effect, promotion reconsideration for Captain.

APPLICANT STATES:  He had a right to expect that the results of the FY99 Captain, Medical Service Corps, Promotion Board would have been based on his complete record.  He notes, in effect, that through no fault of his own, his Academic Evaluation Report, rendered upon his completion of the Systems Automation Course in February 1999, was not part of his record when viewed by the promotion board.  The applicant contends that merely having completion of a course on the ORB is not sufficient and the absence of the accompanying AER creates an injustice and is discriminatory.  He states that having the course completion date on the ORB is “not the same as reading the evaluation report for that training….”

The applicant also states that the decision of the DCSPER Officer Selection Review Board (OSRB) to deny his request for a special selection board was unjust.  He contends that the absence of the AER constituted a material error and as such required that he be afforded an opportunity to have his records considered by a special selection board.

In support of his request the applicant submits extracts from his Official Military Personnel File, including such documents as his Officer Evaluation Reports and award citations.

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

He entered active duty as an enlisted soldier on 8 July 1987 and performed duties as a medical specialist.  He was discharged on 30 January 1996, in pay grade E-6, following successful completion of officer candidate training and was appointed as a USAR second lieutenant on 31 January 1996 with immediate call to active duty.

The applicant successfully completed the AMEDD Officer Basic Course in May 1996.  His AER for the course indicates that he “achieved course standards” and in part, that he would be an “asset to any unit assigned.”

Following completion of the basic course he was assigned to the Army Medical Department Activity at Fort Knox, Kentucky as the Operations Officer for the Training, Education and Mobilization Division.  In that capacity the applicant received four performance evaluation reports all of which indicated he was rated as a “center of mass” officer by his senior raters, in spite of the fact that he was placed in the top block on each of the four reports.  While written comments on the evaluation reports generally praised the applicant’s accomplishments they also noted, among other things, that he “excels in most undertakings, should be promoted at earliest opportunity” and that he “has the potential to make significant contributions to the AMEDD.”
While assigned to Fort Knox, the applicant was awarded an Army Commendation Medal recognizing his meritorious service in his capacity as the Operations Officer between June 1996 and June 1998.

In September 1998 the applicant commenced a five months Systems Automation Course at Fort Gordon, Georgia.  The applicant successfully completed the course by achieving the course standards.  His AER notes that he demonstrated satisfactory abilities in all areas except leadership where he was not evaluated.

In August 1999 the applicant was informed that he had been non-selected for promotion to the grade of captain and as such faced separation from active duty upon completion of his obligated service (19 February 2000).  The applicant appealed his non-selection and requested reconsideration by a Special Selection Board when he discovered that his Systems Automation Course AER was not part of the records seen by the promotion board.  He also noted that the functional area on his Officer Record Brief was incorrect.  The applicant noted in his appeal that he had made the correction to his ORB and submitted a copy of the AER prior to the date the promotion board convened but, through no fault of his own, the corrected information was not viewed by the promotion board.

On 29 October 1999 the DCSPER Special Review Board denied the applicant’s petition for promotion reconsideration by a Special Selection Board.  The Special Review Board noted, in effect, that while the applicant was not at fault, had the missing AER and correct functional area on his ORB been reviewed by the promotion board it was still unlikely that he would have been selected for promotion.  They also noted that inspite of the fact that the AER was not in files available to the promotion board the applicant’s ORB did contain an entry indicating the applicant had completed the Systems Automation Course.  As such his request was denied.  The Special Review Board specifically opined that “the quality of the applicant’s file and a significantly higher number of officers selected above the zone contributed to his non-selection rather than the lack of the AER in his OMPF.”

A review of the FY99 Captain AMEDD promotion selection results indicated that in the applicant’s category 319 officers were considered in the promotion zone and 247 of those officers were selected for promotion.  There were 66 officers above the zone of consideration and 44 of those officers were selected for a total of 291 lieutenants selected for promotion to the grade of captain in the applicant’s category.

Army Regulation 600-8-29 states that a special selection board may be convened if it determines that a “board that considered an officer from in or above the promotion zone did not have before it some material information."  The determination of “material information” is, however, discretionary.

A fact sheet published by officials at the Total Army Personnel Command regarding special selection boards for promotion reconsideration notes that “a material error is defined as being of such nature that in the judgement of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.

Section 3258, title 10, USC states that any former enlisted member of the Regular Army who has served on active duty as a Reserve officer of the Army, or who was discharged as an enlisted member to accept a temporary appointment as an officer of the Army, is entitled to be reenlisted in the Regular Army in the enlisted grade that he held before his service as an officer, without loss of seniority or credit for service, regardless of the existence of a vacancy in his grade or of a physical disability incurred or having its inception in line of duty, if (1) his service as an officer is terminated by an honorable discharge or he is relieved from active duty for a purpose other than to await appellate review of a sentence that includes dismissal or dishonorable discharge, and (2) he applies for reenlistment within six months (or such other period as the Secretary of the Army prescribes for exceptional circumstances) after termination of that service. 

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.  The Board notes that promotion reconsideration is not a right but is a discretionary determination of the special selection board process.  The Board, after reviewing the applicant’s file, agrees with the findings of the OSRB in that even if the missing AER had been a part of the applicant’s file it is unlikely that he would have been selected for promotion.

2.  The Board notes that at best the applicant was a satisfactory officer.  In spite of the fact that he had nearly 9 years of enlisted service his ratings still reflected an officer who excelled at “most” of his undertakings and one who had the “potential” to make significant contributions.  He was consistently rated as a center of mass officer.  Had the applicant exceeded the course standards or been rated superior in any categories then the AER would have added something to the record reviewed by the Board.  As it stands the AER from the Systems Administrator Course merely reinforced the perception that the applicant was a center of mass officer by noting that he “achieved” the course standards and was rated as satisfactory in the various rated areas.  That same information would have been interpreted by the course completion entry on the applicant’s ORB.

3.  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.

4.  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

___fe__  ___ra___  __kak___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034656	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(deny)	
REVIEW AUTHORITY		
ISSUES         1.310	110.00	
2.		
3.		
4.		
5.		
6.