PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001058075


         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyl		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.

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2. The applicant requests, in effect, removal of his first non-selection by the 2000 promotion board.

3. The applicant states that the Deputy Chief of Staff of Personnel (DCSPER), Utah Army National Guard (UT ARNG) notified him that his records would be considered for promotion to lieutenant colonel by the 2000 promotion board. He was later notified that his records would not be considered. He submits copies of his promotion memorandums for major, memorandum from the DSCPER, UT ARNG dated 19 April and 26 April 2000, his promotion non-selection memorandum dated 15 March 2001 and a memorandum dated 16 May 2001 from the DCSPER, UT ARNG to the Commander, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) in support of his request.

4. The applicant’s military records show that he was appointed in the Reserve, Chaplains Corps, as a second lieutenant effective 17 March 1974.

5. He entered on active duty effective 14 January 1985 and attained the rank of captain effective 1 August 1985.

6. He was honorably separated from active effective 1 July 1994 and transferred to the USAR Control Group (Reinforcement).

7. On 23 August 1995 a promotion memorandum was issued to him indicating his promotion to major effective 19 September 1994 with a date of rank of 2 July 1994. On 18 September 1995 a corrected promotion memorandum was issued showing his effective date as 17 March 1995 with a same date of rank.

8. He was later assigned to a unit with the UT ARNG.

9. On 19 April 2000, he was advised by the DCSPER, UT ARNG that he was eligible for consideration by the 2000 lieutenant colonel chaplain Reserve Components Selection Board (RCSB). He was also advised to review and update his official military personnel file and that not later than 5 July 2000, the UT, Director of Personnel and Community Activities, must receive any document he wanted the promotion board to review.

10. On 26 April 2000, he was further advised that further review of his records indicated that his date of rank did not fall within the zone of consideration and he would therefore not be considered. He was also advised to prepare himself far in advance for the 2001 promotion board.

11. He was considered and not selected for promotion to lieutenant colonel by the 2000 RCSB. The President approved the board results on 9 February 2001.

12. Documentation provided by the applicant shows that on 16 May 2001 the DCSPER, UT ARNG recommended to PERSCOM concurrence with the applicant’s appeal. The DCSPER stated that since the applicant was advised that he would not be considered, he did not need to prepare a promotion packet for the 2000 promotion board nor did he need to take any further action. Therefore, the applicant, though no fault of his own, did not prepare a packet. The UT ARNG requested that the applicant’s name be removed from the consideration list since he did not meet the zone of consideration. At that time the UT ARNG understood that his name had been removed from the list. However, when the 2000 promotion board met, the applicant was indeed considered and failed selection possibly because he had no packet. It was recommended that his first consideration be removed.

13. He was again considered and not selected for promotion to lieutenant colonel by the 2001 RCSB. The President approved the board results on 14 March 2002.

14. Current promotion policy specifies that promotion reconsideration by a special selection board (SSB) 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.

15. Promotion policy does not provide for the removal of non-selections by an RCSB except when directed by this Board.

CONCLUSIONS:

1. In view of the circumstances in this case, the applicant is entitled to proper reconsideration for lieutenant colonel under the 2000 criteria. The applicant was advised that he did not need to prepare for promotion and would not be considered by the 2000 RCSB. However, the applicant was considered and possibly not selected because he did not review and update his records accordingly. Therefore, through no fault of his own, and through detrimental reliance on incorrect instructions, he did not prepare, review or update his records for promotion consideration at the time.

2. Error or injustice may not be readily apparent in this case; however, the Board concludes that the UT ARNG and the applicant understood that he would not be considered in 2000 and had until his next selection board to prepare for promotion consideration. Therefore, the Board concludes that the applicant should be afforded the opportunity to present his records in the best possible light for promotion reconsideration under the 2000 criteria.

3. The Board further concludes that the applicant’s 2000 promotion board consideration and non-selection should now be voided and the applicant receive promotion reconsideration by an SSB under the 2000 criteria.

4. In noting the applicant merely requested removal of the 2000 RCSB non-selection, the Board recognizes that the foregoing relief is most appropriate in his case. The Board further concludes in this case that the applicant has by now reviewed and updated his records in preparation for promotion board review.

5. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by voiding the non-selection of the individual concerned from the lieutenant colonel 2000 RCSB.

2. That all documents related to his now-voided 2000 RCSB non-selection for promotion be expunged from his official military records.

3. That following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB under the 2000 criteria.

4. That if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefor, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

5. That if selected, and if the applicant was separated because of his previous non-selections, his records be further corrected to show:

         a. that his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve; and

         b. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions.

6. That if not selected, the applicant be so notified.

BOARD VOTE:

_fne____ _le_____ _tl_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Fred N. Eichorn
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058075
SUFFIX
RECON
DATE BOARDED	20020328
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.