MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 1998
         DOCKET NUMBER: AC97-11722

         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
Mr. David E. Weightman		Analyst

The following members, a quorum, were present:

Ms. Karen L. Wolff		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Kenneth L. Wright		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)

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APPLICANT REQUESTS: Correction of his military records to void his discharge and to show he was selected and promoted to major.

APPLICANT STATES: He was erroneously not selected for promotion because he did not have a baccalaureate degree. That such degree was not required for promotion to major in his case since he was promoted to captain before 1995 and was grandfathered for promotion purposes. This error caused his removal from his active duty status and discharge. He submits his own statement and statements from others in support of his request. Included with his application are memorandums from the National Guard Bureau (NGB) showing the reason he was not selected was based on two evaluation reports showing “Do Not Promote”, and also based on the lack of a baccalaureate degree.

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

Effective 22 August 1981, with prior enlisted service, the applicant was appointed in the Arizona Army National Guard (ARNG) as a second lieutenant, Ordnance Corps. He was appointed based upon completion of the Arizona NG officer candidate school. He was later promoted to first lieutenant effective 21 August 1984, and to captain effective 10 March 1988. He requested and received an Active Guard/Reserve (AGR) tour for 3 years of active duty with a reporting date of 21 April 1993. He was extended for another year until 20 April 1997.

His PED (promotion eligibility date) for major was 9 March 1995, based upon completion of 7 years of time in the lower grade and 12 years of promotion (commissioned) service.

He was considered but not selected for promotion to major by the 1994 Reserve Components Selection Board (RCSB). The reason(s) for non-selection were not divulged by the board except that it was not for the lack of military education. He was notified of the results of the board by letter dated 26 May 1994. The letter also advised him that the RCSB did not limit its deliberations to any specific item but reviewed his entire record, and that it was not permitted to divulge the reasons for non-selection.

His PED was adjusted to 9 March 1996.

He was again considered but not selected for promotion to major, this time by the 1996 RCSB. The reason(s) for non-selection were not divulged by the board, and it did not show it was for the lack of military education. He was notified of the results of the1996 RCSB by letter dated 10 June 1996. The letter also advised him that based on the second non-selection he must now be separated from the Army Reserve.

His records were complete and without material error when reviewed by the RCSB’s.

On 5 November 1996 orders were published to curtail his AGR tour and he was ordered discharged effective 31 December 1996.

His officer evaluation report (OER) history since promotion to captain shows he was rated below maximum by his rating officers on four of the 10 reports he received, including two adverse ratings. His senior raters rated him above the center of mass on a 1995 and 1996 report, center of mass on three reports done in 1988, 1990 and 1994, and below the center of mass (adverse) in five reports completed in 1989, 1991, 1992, 1993, and 1996.

His appeal of the OER ending on 30 September 1991 was denied in 1992. There is no record of appeal of other reports.

Army Regulation 135-155, in effect at the time, prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous non-consideration or material error which existed in the record 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 non-selection 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. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

The regulation does not show the requirement of a baccalaureate for promotion to major in this case.

The regulation also provides that individuals will receive mandatory promotion consideration prior to their PED’s so that, if selected, they may be promoted on their future PED; and that promotion is based on qualifications and a competitive process of an RCSB determining an individual’s potential and ability to perform at the higher grade.

The Regular Army policy also shows that Active Duty List promotion boards were not required to divulge the proceedings of its boards or to show the reason(s) for non-selection of officers considered.


Army Regulation 135-175 prescribed the policies and procedures for the separation of Reserve officers. This regulation, along with Army Regulation 135-155, provided that individuals twice not selected for promotion to major must be transferred to the Retired Reserve if they were eligible and requested such transfer, or retained in the active Reserve when more than 18 but less than
20 qualifying years of service had been completed, or they were discharged.

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 all of the circumstances in this case, the applicant is not entitled to correction of his military records to void his discharge and to show he was selected and promoted to major. He has not shown error, injustice, inequity or compassion for the correction he is requesting.

2. Notwithstanding the comments made by NGB officials concerning the reasons the applicant may have not been selected for promotion, promotion boards of the Reserve, as well as the Regular Army, do not divulge the board proceedings or divulge the reason(s) for non-selection of the officers considered. The NGB official’s offerings of why the applicant was not selected are their opinions, and are speculative on their part. It is clear, however, the applicant’s evaluation history shows his performance as well below that of his peers, and provides strong reason for non-selection. Also, while a baccalaureate may not be required for promotion to major, the Board notes the absence of a degree may have led to non-selection.

3. Of paramount importance here is that 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. Competition for promotion and retention is keen, and it appears in this case the applicant was properly considered but simply not selected. He has not shown otherwise.

4. The Board further notes that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual’s potential and ability to perform at the higher grade.

5. The Board notes the applicant’s contentions; however, 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

KLW____ MHM____ KLW ___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC98-07702
SUFFIX
RECON
DATE BOARDED	1998 December 17
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.

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INDEX

CASE ID	AC98-10447
SUFFIX
RECON
DATE BOARDED	1998 December 10
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1994 August 31
DISCHARGE AUTHORITY	AR 135-155. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.