MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            27 October 1999
	DOCKET NUMBER:   AR1999014643

	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. Loren G. Harrell		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		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 before a Colonel (0-6) promotion standby board for July through August 1995.  He further requests that he be reconsidered for promotion by the First Brigade, 87th Division Colonel Unit Vacancy Board that convened on 4 December 1995.

APPLICANT STATES:  In effect, that the Officer Efficiency Reports for period ending 28 June 1991 was missing from his file when he was being considered for promotion the board.

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

He was commissioned as a USAR second lieutenant on 25 January 1969.  His records show that, while in the USAR, he was promoted to the rank of first lieutenant on 16 January 1971, to captain on 1 June 1975, to major on 23 January 1982 and to lieutenant colonel on 25 January 1990.

On 14 October 1994, the applicant was notified by the U.S. Total Army Personnel Command (PERSCOM) that he had been considered but not recommended for promotion to 0-6 by a DA Reserve Components Selection Board.

On 16 October 1995 and on 16 September 1996, the applicant was again notified by the PERSCOM that he had been considered and not recommended for promotion to 0-6.

On 8 May 1996, he was notified that effective 24 February 1997, he would reach his mandatory removal date and that he must be separated or retired upon reaching that date.  He was informed that he must indicate whether he desired to be transferred to the Retired Reserve, be discharged, or be extended.  He was further informed he had until 25 August 1996 to select one of the options.

The applicant submitted a memorandum dated 10 August 1996, requesting an extension of his mandatory removal date.  On 15 August 1996, he was informed that if he wished to pursue an extension of his mandatory removal date, he could do so.  However, at that time, he must indicate whether he desired to be transferred to the Retired Reserve or be discharged at his mandatory removal date.  He opted to be transferred to the Retired Reserve.

Accordingly, he was released from the Active Reserve and was transferred to the Retired Reserve on 25 February 1997.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the PERSCOM, Office of Reserve Component Promotions, St. Louis, Missouri.  It opined that the applicant’s records were reviewed by the 1993, 1994, 1995 and 1996 DA Reserve Components Selection Boards and he was not selected for promotion.  Because his OER ending 28 June 1991 was missing from the file when it was reviewed by the boards, the PERSCOM further opined that based upon an earlier application dated 19 February 1997, his file was reviewed under 1993 criteria by the special selection board that adjourned on 29 October 1997 and he was again nonselected.  The PERSCOM indicated that his file was submitted to the special selection board that adjourned on 21 April 1998 under the 1994 criteria, however, the result of that board has not been approved.  The PERSCOM stated that if the applicant is nonselected under 1994 criteria his file will be submitted under 1995 criteria to the next available board and that there are no provisions in Army Regulations for reconsideration by a special selection board of an officer that has been nonselected by a Unit Vacancy Selection Board.

Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the USAR.  It states, in pertinent part, that Department of the Army Standby Advisory Boards (STAB) are formed to prevent any injustice to officers or former officers show were eligible for promotion but whose records were, through error, not submitted to a promotion selection board for consideration or contained a materiel error when reviewed by the board.  In determining that a material error caused an officer’s nonselection by a promotion board, it must first be determined that one or more evaluation reports that should have been seen by a board (based on announced cut-off date) were missing from an officer’s OMPF, that the officer’s military or civilian education was incorrect, or that the officer was awarded a Silver Star or higher that was missing from the officer’s OMPF.

On 17 February 1999, a copy of the advisory opinion was forwarded to the applicant for his information and possible rebuttal.  There is no indication that the applicant submitted a rebuttal to the advisory opinion within the 30-day suspense date.

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.  The actions by the Army in this case were proper and there is no doubt to be resolved in favor of the applicant.

2.  The applicant contention that one of his OER’s was missing at the time of his review by the selection board has been noted by the Board.  However, based on the information obtained from the PERSCOM, his file was reviewed by the special selection board that adjourned on 29 October 1997 and he was again nonselected.  

3.  Additionally, his file was submitted to the special selection board that adjourned on 21 April 1998.  However, at the time that he submitted his application to this Board, the results of that board had not been approved.  Moreover, there are no provisions for reconsideration by a special selection board of an officer that has been nonselected by a Unit Vacancy Selection Board.  Therefore, there is no relief that can be granted in that portion of his request.

4.  Inasmuch as the applicant’s file will be submitted to the next available selection board if he has been nonselected for promotion by the board that adjourned on 21 April 1998, there is no basis for this Board to grant the applicant promotion reconsideration.

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

___mkp__  ___kan__  __gp____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR19990014643	
SUFFIX		
RECON		
DATE BOARDED	1999/10/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  131	107.0085	
2.  311	131.0100	
3.  320	131.1000	
4.		
5.		
6.