MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 September 2001
         DOCKET NUMBER: AR2001051729

         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
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lester Echols		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: In effect, that his records be amended to include his DA Form 67-8 officer evaluation report (OER) for the period 18 May 1990 through 17 May 1991 and that he be promoted to the rank of colonel retroactively.

APPLICANT STATES: In effect, that the critical OER was erroneously omitted from his file when he was considered by the 1991 Reserve Component Selection Board (RCSB) .

The applicant also states that he attempted to correct his record in 1992; however, the Army Board for Correction of Military Records (ABCMR) did not consider his case at that time.

COUNSEL CONTENDS: In a four page letter to the Director of the ABCMR that the applicant was deprived of an opportunity for promotion to the rank of colonel due to a procedural error.

Counsel acknowledges that the ABCMR has the authority to promote the applicant to the rank of colonel based on "section 1552 of 10 United States Code" and "chapter 32 of the Code of Federal Regulations". Counsel also contends the injustice in this case can only be corrected by promoting the applicant to the rank of colonel.

Counsel provides background information on the error, which he contends resulted in the applicant's non-selection for promotion. He argues that on
31 March 1995, the Executive Secretary of the ABCMR, advised the applicant that his military records could not be found and, as a result, his 1992 application requesting promotion reconsideration was returned without action.

Counsel asserts that the applicant's records were complete at the time of his promotion consideration to colonel in 1989 and 1990. As a result, counsel argues that he does not understand why the ABCMR required a complete record merely to add one additional OER. Counsel states that the applicant's retirement was imminent during the time of his 1992 application and speculates that his records may have been transferred for retirement.

Counsel also states that the applicant has acted with dispatch within the statute of limitations and followed all procedures to correct this "grave procedural error". Counsel contends that the applicant's exemplary military record, along with foreign language skills, PH.D education level and his foreign service accomplishments could have reasonably been expected to result in promotion had his records been properly presented. Counsel also contends that the applicant's non-selection for promotion to the rank of colonel and mandatory retirement was also a result of the ABCMR's failure to consider his 1992 application for promotion reconsideration.
Counsel states that on 5 February 1993 the applicant was retired without the chance to be retained for further service as a direct result of his records not being properly presented to the promotion board and as a direct result of the ABCMR not considering his request for reconsideration by a stand-by promotion board.

In conclusion, counsel argues that the applicant has been denied the opportunity to serve beyond the date of 5 February 1993 and that the only way to correct this error is by the ABCMR taking the "unusual step" of promoting the applicant to the rank of colonel.

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

The applicant was appointed in the Regular Army as a commissioned officer in the rank of second lieutenant in the Air Defense Artillery Branch on 3 June 1964. He was promoted to the rank of first lieutenant on 3 December 1965 and to the rank of captain on 3 January 1967.

Records show the applicant was transferred from the Air Defense Artillery Branch to the Military Intelligence Branch on 16 February 1968. He was separated from active duty on 8 August 1973 and was transferred to the United States Army Reserve in the rank of captain. He was subsequently promoted to the rank of major on 2 June 1978 and to the rank of lieutenant colonel on 1 June 1985. He was retired on his mandatory removal date, 5 February 1993. At the time of the OER in question, the applicant was assigned as a United States Army Defense Attache Officer at Headquarters, United States Army Intelligence and Security Command (INSCOM).

The applicant's records were submitted to the 1989 and 1990 Department of the Army RCSB considering officers for promotion to the rank of colonel, but he was not recommended for promotion. His records were also submitted to the 1991 Department of the Army RCSB considering officers for promotion to the rank of colonel that convened on 23 July 1991 and adjourned 28 August 1991. He was not recommended for promotion by that board.

The Office of Reserve Component Promotions of the United States Total Army Personnel Command in St. Louis, Missouri, issued a message [Date-Time] 071130Z, JAN 91 with the Subject: Zone of Consideration for Promotion to USAR Colonel, Army Promotion List, 1991. The message announced those officers eligible to be reviewed by the board. It also established guidance for the submission of OER's for the promotion selection board to review.

Specifically the message states " A lieutenant colonel who was previously considered but not selected for promotion by the 1990 Colonel, Army Promotion List USAR Board which adjourned on 9 November 1990 will require a code 11, promotion report. The required "thru date" for code 11 promotion reports will be 24 April 1991."

The message also states "All evaluation reports prepared in the zone of consideration must be processed through the evaluation system and received in the Secretariat, Office of Promotion, NLT 23 July 1991 to be seen by the Board. Evaluation reports arriving after 23 July 1991 (Other than delinquent or referred reports) will not be accepted by the board. Their absence from the file is not a basis for reconsideration by an advisory board."

The applicant submitted a copy of an OER for the rated period [18 May 1990 – 17 May 1991]. The rater and the senior rater verified their entries on 12 July 1991. The rated officer also verified the administrative portion of this report on 12 July 1991. The OER contained the entry in block Ij (Reason for Submission) of "45 ARPERCEN Directed". There is no evidence that his OER was received or processed by Headquarters, Department of the Army officials. There also is no evidence that this OER was entered into the applicant’s official military personnel records.

In the processing of this case, an advisory opinion was requested from the Commander, United States Total Army Personnel Command on 24 January 2001. The staff of the Reserve Components Promotions Branch provided an advisory opinion, dated 19 March 2001. The applicant and his counsel were provided a copy of the advisory opinion for comment. The applicant's counsel provided comments that were received on 13 July 2001 for consideration by the Board.

The advisory opinion stated that the applicant's file, when viewed by the 1991 Department of the Army RCSB, included all critical documents that were required for promotion consideration. It further stated, in effect, that the failure of the RCSB to see this OER was not a material error which would require promotion reconsideration because the ending date for the OER was 17 May 1991 which was not 90 days or more before prior to the convening date of the RCSB. As a result the OER is not considered late. In addition, the opinion pointed out that the OER in question has not been profiled by the Evaluations Support Branch; therefore, there is no basis for special board consideration.

In rebuttal to the advisory opinion, the applicant's counsel contends that in 1992 the Executive Secretary of the ABCMR arbitrarily and capriciously shifted the burden of locating military personnel records to the applicant. As a result, counsel requests that the ABCMR submit the applicant's personnel folder to a standby promotion Board and that he be considered for promotion on the same criteria that he would have been considered in 1991.

Counsel's rebuttal to the advisory opinion essentially restates the same information submitted with the application. New evidence consists of a new "Summary of Facts" and a copy of United States Court of Appeals, Fifth Circuit Court case Johnson v. Reed, 609 F.2d 784.

In his rebuttal, counsel restates the issues as follows:

         1) The promotion board failed to consider the applicant's entire record before rendering a decision about promotion.

         2) The applicant's non-consideration for promotion was an arbitrary and capricious denial of his right to be considered.

         3) The March 31 1995, Letter from (Director, ABCMR) was prejudicial to [the applicant's] rights because it states an incorrect legal standard to the [the applicant's] burden of proof.

         4) The applicant was denied the right to submit a complete and correct record to the promotion board in violation of those principles set forth in Johnson v. Reed.

In his rebuttal, counsel for the applicant contends that the applicant’s case is almost identical to that of the plaintiff in Johnson v. Reed. From among several factors, the applicant’s counsel contends that both had excellent records, both had incomplete records gathered for consideration by a promotion board, each was discharged after consideration of an incomplete record and each was denied the right to submit a promotion record that fairly and equitably reflected each career.

The record shows that in Johnson v. Reed the plaintiff contested his release from active duty after two Air Force selection boards passed him over for promotion. The plaintiff contended that the Air Force included prejudicial material in his file and improperly dated his records. In this case the Air Force partially corrected the plaintiff’s records; however, the Air Force did not void the second non-selection and did not prevent his release from active duty. The Court found in this case that the Air Force acted arbitrarily and capriciously when it did not change the date on a Training Report and did not void the second pass over.

Army Regulation 15-185, in effect at the time of the applicant's 1992 application to the ABCMR, established procedures for making application and consideration of applications for the correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 10 of this regulation discusses consideration of the application and states: “Each application and the available military or naval records pertinent to the corrective action requested will be reviewed to determine whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing.” The regulation also states: "The Board may deny an application if it determines that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.” Finally, the regulation states: “Denial of an application on the grounds of insufficient relevant evidence to demonstrate the existence of probable material error or injustice is without prejudice to further consideration in the event new relevant evidence is submitted.”

Paragraph 15 of Army Regulation 15-185 also states: “It is the responsibility of the applicant to procure such evidence not contained in the official records of the Department of the Army as he desires to present in his or her case.”

Army Regulation 623-105 prescribes the policies and procedures for processing officer evaluation reports. Chapter 5-36 c (3) states reports must be forwarded as quickly as possible in view of their impact on personnel actions that may be under consideration at Headquarters, Department of the Army (HQDA). In any event, reports must be forwarded to reach HQDA, not later than 60 days after the ending day of the report.

Army Regulation 623-105, Personnel Evaluations, states in Appendix K, section K-5, the codes that identify the reasons for submission of an officer evaluation report. This regulation shows the entry of "45" indicates the reason for submission is "45 ARPERCEN or CONUSA directed-add reference to the appropriate directive" and requires and entry of a specific reference from another directive or regulation as the basis for submission.

Army Regulation 135-155 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.

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 Board considered the contentions of the applicant and his counsel wherein they asserted that in 1992 the Executive Secretary of the ABCMR arbitrarily and capriciously shifted the burden of locating military personnel records to the applicant. However, based on Army Regulation 15-185, it is the applicant's responsibility to provide evidence that is not in his official military personnel record to support his claims and contentions. Since the Board is not an investigative body and his records were not available to accurately evaluate his application, the applicant's 1992 application was returned without prejudice. As a result, this Board determined that the applicant and his counsel have not provided conclusive evidence that in 1992 the Executive Secretary of the ABCMR arbitrarily and capriciously shifted the burden of locating military personnel records to the applicant.

2. The Board reviewed the provisions of Title 10 United States Code governing the convening of selection boards, information provided to selection boards and the convening of special selection boards.

3. The Board reviewed the advisory opinion rendered by the Promotions and Notifications Branch, Office of Reserve Components Promotions, as well as the comments and rebuttal to this advisory opinion furnished by the applicant's counsel.

4. The Board noted that the instructions published for the conduct of the 1991 promotion selection board to the rank of colonel required all authorized OERs be submitted to Headquarters Department of the Army for processing and submission to the Board Secretariat no later than 23 July 1991 which was the date the promotion selection board convened. Further, OERs for lieutenant colonels nonselected by the 1990 RCSB required a “thru date” of 24 April 1991 and a reason for submission code of “11".

5. The Board noted that the copy of the OER in question submitted by the applicant has a “thru date” of 17 May 1991 and a reason for submission code of “45 ARPERCEN Directed”. Further, there is no entry on the OER in question of an appropriate directive to justify the submission code of “45 ARPERCEN Directed”, as required by Army Regulation 623-105. The Board also noted that there is no evidence that the OER in question was received or properly processed by HQDA officials and there is no evidence that the OER in question was ever entered into the applicant’s official military personnel records.

6. Since there is no evidence that the OER in question was properly rendered, submitted, received or processed within time frames prescribed by the U.S. Total Army Personnel Command, this Board concluded that there is no material error and that there is no error or omission which warrants promotion reconsideration. As a result, the Board also finds that counsel’s argument that the applicant’s promotion file was incomplete due the absence of this OER is without merit.

7. The Board noted counsel's reliance on Johnson v. Reed, but the Board determined that this case is not controlling in the application currently before the ABCMR because the applicant is not similarly situated to the plaintiff. The plaintiff was separated from active duty as a result of two-time nonselection and the court case was related to removal of adverse information, voiding the second nonselection for promotion and promotion reconsideration after another OER had been rendered. Although, the applicant in the case before the ABCMR was not selected for promotion, he was not separated for a second time failure of selection; rather, he was separated on his mandatory removal date for maximum years of service.

8. There is no indication that the applicant's non-selection to the rank of colonel was otherwise unjust or inequitable. There is also no evidence of record which shows that the applicant's non-selection was contrary to law or involved material error of fact or material administrative error or that material information was not before the promotion selection board.

9. 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.

10. 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

___JNS__ ___REB_ __LE____ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
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.
2.
3.
4.
5.
6.