MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001061134

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 he be promoted to the rank of lieutenant colonel (LTC) and that he remain on active duty in that rank.

APPLICANT STATES: In effect, that he was non-selected for promotion to the rank of LTC by the 1999 and 2000 LTC Selection Boards because he was involuntarily redesignated back to his basic branch of Signal Corps (SC) from the Army Acquisition Corps (AAC), and was unjustly denied the opportunity to become branch qualified in SC branch before he was considered for promotion to the rank of LTC. He goes on to state that despite written assurances by the Director of Officer Personnel Management at the Total Army Personnel Command (PERSCOM), his branch failed to assign him to an organization where there were branch qualifying opportunities. He further states that given his otherwise excellent record of service, it is only reasonable that his lack of branch qualifications in the SC was the basis for his nonselection. In support of his application he submits a detailed memorandum and time-line chart showing the events that occurred during his career.

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

He initially enlisted on 28 December 1981 for training as a Field Systems Communications Security Repairman. He successfully completed his training and subsequently applied for Officer Candidate School (OCS) training. He was accepted and completed the course in September 1983.

On 8 September 1983, he was honorably discharged in the pay grade of E-5 for the purpose of accepting a commission. He was commissioned as a United States Army Reserve (USAR) second lieutenant on 9 September 1983 with a concurrent call to active duty and detail to the SC branch. He was promoted to the rank of captain on 1 September 1987.

He attended a fully-funded graduate degree completion program from June 1990 to December 1992 and was redesignated as an AAC branch officer. He was promoted to the rank of major on 1 April 1995. He continued to serve as an AAC officer until he was notified by a memorandum from the Director of Officer Personnel Management at the PERSCOM (a brigadier general) on 29 November 1996, that he had been selected to return to his basic branch (SC) on 18 November 1996, by an AAC Transfer Board. The memorandum further explained that of the 14 officers selected, all were outstanding officers with the prerequisite experience necessary to succeed in their basic branches. It further explained that the PERSCOM would do everything possible to ensure that the individuals had the opportunity to get into a branch qualifying position before consideration for promotion to the rank of LTC.

On 18 July 2000, The Adjutant General of the Army (TAG) notified the applicant by memorandum, that he had been twice nonselected for promotion to the rank of LTC and established his mandatory retirement date as 31 January 2002.

In the processing of this case a staff advisory opinion was obtained from the PERSCOM Promotions Branch. It opined, in effect, that a review of his records failed to confirm the presence of material error in his record when he was considered, but not recommended for promotion. It further explained that the decision to recommend an officer for promotion is based on the board member’s collective judgment as to the officer’s overall record when compared to other officers being considered. However, promotion boards are prohibited by law from divulging the reasons for selection or non-selection of any officer. The PERSCOM opined that his request be denied.

The advisory opinion was provided to the applicant for comment and he responded to the effect that the injustice in his case is that his non-selection is a result of an error in planning and execution by the SC branch and the PERSCOM, when they transferred him from the AAC to the SC branch and failed to live up to their written promise to assign him to a location that would afford him an opportunity to become branch qualified before being considered for promotion. He goes on to state that he has always been on the top 50% of his peers and believes that had the selection board been made aware of the circumstances in his case, he would have been selected. Accordingly, he can only presume that given his overall excellent record, the lack of SC branch qualification time was the basis for his non-selection. Therefore, the Board should direct his promotion to the rank of LTC with the appropriate date of rank, when he should have been selected in 1999.

A review of the applicant’s OMPF shows that the applicant completed the resident Air Command and Staff College in 1997 and that he has always been rated as a center of mass or higher officer by his senior raters.

Army Regulation 600-8-29 prescribes the policies and procedures for the promotion of officers of active duty and includes the procedures for the conduct of selection boards as well as Standby Advisory Boards (STAB). It provides, in pertinent part, that officers who are eligible for consideration may write to the board to provide documents and information, calling attention to any matter concerning themselves that they consider important to their consideration. It further provides that promotion boards will base their recommendations on impartial consideration of all officers in the zone of consideration and that the members will not reveal their reasons for selection or non-selection of any officer considered. Officers who were not considered by the proper board or whose records contained material error or was missing information when they were considered, may be considered for promotion by a STAB under the same criteria as the board that was supposed to originally consider them. Officers will not be considered by a STAB when it is determined that the administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Official Military Personnel File (OMPF).

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 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.

2. While the Board agrees that the applicant has had an excellent record of service to his country, the Board finds no basis to second-guess the judgment of the promotion selection boards who determined that he was not the best qualified for selection when compared to his peers.

3. Although it is unfortunate that he was not selected for promotion, it is a well known fact that in all selections boards there are many very qualified officers who are not promoted due to the strength ceiling, which limits the numbers of eligible officers that may be selected. Non-selection for promotion does not necessarily mean that an officer is substandard, it in many cases simply means that there are more people than there are allocations to promote.

4. The Board has noted the applicant’s contention that he was non-selected for promotion because the Board did not have an explanation of why he had not served in a branch qualifying position for a sufficient amount of time and finds it to be without merit. The applicant had the opportunity during both selection boards to submit a letter in his own behalf to the selection boards that would explain any concerns he felt were important for the boards to consider.

5. Inasmuch as the selection boards do not reveal the basis for selection or non-selection of an officer and since this Board does not have the benefit of reviewing the records of all of the eligible officers that competed with the applicant for promotion, the Board will not speculate as to the reasons for his non-selection, nor will it entertain such speculation without evidence of a convincing nature. The Board finds no such evidence in this case and as such finds no basis to either afford the applicant promotion reconsideration by a STAB or to promote him to the rank of LTC.

6. 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

__jm ____ __rvo ___ ___cla___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061134
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000/PROM
2.
3.
4.
5.
6.