MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  8 August 2000
	DOCKET NUMBER:  AR1999034767

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 captain.

APPLICANT STATES:  In effect, that his latest officer evaluation report (OER) and an incomplete and incorrectly processed “referred” OER for the period 1 November 1997 to 31 May 1998 were not seen by the promotion boards.  He further states that he did not receive a “Letter of Non-Rated Time” for his flight training, and these injustices led to him being twice not selected to captain and his removal.  He submits a copy of the referred OER, orders for undocumented Non-Rated Time, his military resume and letter of recommendation from his chain of command in support of his application

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

He was appointed in the California Army National Guard, Armor Branch, as a first lieutenant effective 7 April 1995, with prior Air Force commissioned service.

He entered on active duty for training effective 5 July 1995 and was separated effective 31 October 1995 based on completion of the Armor Basic Course.

He requested and received a branch transfer to Aviation effective 1 May 1996.  

On 19 June 1998, he was recommended for administrative elimination and transferred back to Armor Branch effective 1 October 1998 due to failure to progress.

His record shows he received an OER for the period 1 November 1997 through 31 May 1998.  This OER was not profiled and placed in his records.

He was considered and not selected for promotion to captain by the 1997 and 1998 Reserve Components Selection Boards (RCSB’s).  The boards did not divulge the reason(s) except that it was not for a lack of education.  He was scheduled for separation.

His records were complete and without material error when reviewed by the boards. 

His name was deleted from the list for consideration by the 1999 RCSB, based on his previous two non-selections.

He received an OER for the period 6 August 1998 through 5 August 1999.  The senior rater completed this report on 13 August 1999.

He was honorably separated effective 1 November 1999.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration or material error, which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

This regulation specifies that a copy of the officer’s records are dispatched 30 days before the convening date of the board and officers are directed to review the records and submit copies of missing documents and other correction.  It also specifies that an administrative error was immaterial if the officer in exercising reasonable diligence could have discovered the error or omission and taken timely corrective action notifying Headquarters, Department of the Army with supporting documentation.

The regulation further specifies that individuals twice not selected for promotion to captain will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

Official records and promotion board procedures require that Departmental Senior Rater Profiles be affixed to OER’s prior to filing in individuals records and completed 90 days prior to review by a selection 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.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to captain by a special selection board, at this time.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions that his promotion file was incomplete and did not contain an OER for a period ending 31 May 1998, and orders for undocumented Non-Rated Time, when his records were viewed by the selection boards have been noted by the board.  However, the contested OER ending 31 May 1998, including any non-rated time, is shown to be an incomplete report and not eligible for promotion board consideration.  It is noted here that completion of this report may entitle the applicant to promotion reconsideration.  If all of his reports can be located and returned the applicant may then have a basis for consideration by a special selection board.

3.  The Board further notes that the OER for the period 5 August 1999 was not eligible for review and was completed after both RCSB’s.  OER’s must be completed 90 days prior to the convening dates of respective RCSB’s to be reviewed by those boards.

4.  It is also noted that the applicant is not qualified or entitled to retention.  In this case, pertinent laws and regulations show that individuals twice not selected for promotion to captain will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

5.  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.

6.  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

__sk____  ___ja___  __rb____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034767	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.