PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 April 2003
	DOCKET NUMBER:   AR2002079131

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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 promotion reconsideration to the rank of colonel.

3.  The applicant states, in effect, that he was previously twice non-selected for promotion to the rank of lieutenant colonel (LTC) and after appealing an officer evaluation report (OER), he was granted promotion reconsideration by a special selection board (SSB), which also failed to select him for promotion.  He goes on to state that he discovered that a member of the selection panels that non-selected him for promotion was his former assignment manager who had knowledge of the OER that he had appealed.  Additionally, he had sat on two back to back selection boards, which was contrary to the applicable regulation.  Consequently, he was again considered by a SSB and was selected for promotion to LTC.  He continues by stating that the same officer sat on the selection board that non-selected him for promotion to the rank of colonel during the Fiscal Year (FY) 2001 Judge Advocate General Corps (JAGC) Colonel Selection Board.  This was the third time the same officer had been on a panel that non-selected him for promotion and he contends that as a matter of fairness and equity, and given the previous sequence of events that occurred, that officer should not have reviewed his file.

4.  The applicant’s military records show that while serving as a Judge Advocate General officer on active duty, he was promoted to the rank of major on 1 May 1990.

5.  In May 1995, the applicant was successful in his OER appeal to the Officer Special Review Board (OSRB) and was granted promotion reconsideration to the rank of LTC by a SSB.  In October 1995, he was notified that he had not been selected for promotion to LTC by the SSB.

6.  In July 1996, he applied to the Board for another review by a SSB because the same officer who had sat on the regular selection board also sat on the SSB. The Board denied his request. 

7.  The applicant was subsequently selected for promotion to the rank of LTC by a SSB in September 1996 and was promoted on 1 March 1997.

8.  On 4 June 2002, the applicant appealed to the OSRB to be granted a SSB for promotion reconsideration by a SSB because the same officer who had sat on two consecutive boards that non-selected him for promotion to the rank of LTC, had also sat on the FY 2001 JAGC Colonel Selection Board and again he was non-selected.  The OSRB opined that while the officer in question had improperly sat on two consecutive selection boards that considered the applicant for promotion to the rank of LTC, there was nothing which prohibited his sitting on the selection board for promotion to the rank of colonel.  The OSRB denied his appeal on 23 August 2002.
9.  Army Regulation 600-8-29 serves as the authority for the composition of promotion selection boards.  It provides, in pertinent part, that no officer will serve on two successive selections boards for the same grade and category.  That regulation also provides that no officer may be a member of two successive SSBs considering officers of the same category and grade.  Further, an officer who was a member of a regular selection board may not serve on an SSB that is reconsidering the recommendations of that regular board.

CONCLUSIONS:

1.  Although the Board agrees with the assessment by the OSRB that the officer in question was not precluded from sitting on the FY01 JAGC Colonel Selection Board that considered and non-selected him for promotion to the rank of colonel, the board finds that as a matter of equity and fairness to the applicant and considering the circumstances in his case, the applicant should receive promotion reconsideration by that board. 

2.  While there is no evidence to suggest that the officer in question in any way tainted the selection board results or failed to properly perform his duties as a board member, the Board believes that any and all doubt can be removed from the process by granting the applicant promotion reconsideration under the same criteria used by the FY01 JAGC Colonel Selection Board.

3.  In the event that he is selected for promotion, he will be promoted with an appropriate date of rank with entitlement to all back pay and allowances, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by submitting the records of the individual concerned, as a matter of equity, to a duly constituted special promotion selection board for promotion reconsideration to Colonel under the criteria followed by the FY2001 JAGC Colonel Selection Board that previously reviewed the individual's records, provided it was not a below the zone consideration.

2.  That if he is selected for promotion, he be promoted with an appropriate date of rank with entitlement to all back pay and allowances, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.
BOARD VOTE:  

__jhl____  ___ym __  __rtd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann H. Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2002079131	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  311	131.0100/SSB	
2.		
3.		
4.		
5.		
6.