MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2001064264


         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John t. Meixell		Member
Mr. Thomas E. O’Shaughnessy		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal for promotion reconsideration to colonel by a special selection board.

APPLICANT STATES: In effect, that his Officer Record Brief (ORB) that went before the 1996 Colonel Promotion Board reflected an incorrect date of his last photograph. He contends that his last photograph was taken on 17 July 1996, not in May 1992. He also contends that this incorrect entry on the ORB leaves the impression that he did not care about taking a recent photograph. He further states that this incorrect photograph date is a material error that existed in his record at the time of consideration.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the Docket Number AR1999027264 by the Army Board for Correction of Military Records (ABCMR) on 9 September 1999.

The applicant submits a copy of his ORB, dated 7 June 1996, which shows that the date of his last photograph was May 1992.

The ORB submitted by the applicant shows that he authenticated that section of the ORB which states “I CERTIFY THAT THE INFORMATION DISPLAYED ON THIS ORB IS CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF” on 2 July 1996. Section X (Remarks) of this ORB shows the entry, “DATE LAST PHOTO 9205.”

The applicant also submits copies of documentation provided with his earlier appeal. These documents are not new evidence.

The applicant’s ORB, dated 7 June 1996, was not previously considered by the ABCMR and is therefore considered new evidence which will be considered by the Board.

The Calendar Year (CY) 1996 Colonel, Army Promotion List, Promotion Selection Board convened on 20 August 1996 and adjourned on 10 September 1996.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 7-3 states that an officer will not be considered or reconsidered for promotion by a special selection board when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or Official Military Personnel File (OMPF). The ORB is a summary document of information generally available elsewhere in the officer’s record. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

Paragraph 7-11 of Army Regulation 600-8-29 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board. The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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. The Board considered the applicant’s contention that the date of his last photograph was incorrect on his ORB that went before the 1996 Colonel Promotion Board.

2. The Board noted that the applicant certified that the information on his ORB was correct to the best of his knowledge on 2 July 1996.


3. The Board also noted that, in accordance with the regulation governing officer promotions, it is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

4. The Board considered the applicant’s contention that his request for reconsideration by a special selection board should be granted because the incorrect photograph date on his ORB is a material error that existed in his record at the time of consideration. However, in accordance with the current governing regulation, reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.

5. The Board noted the applicant’s statement that his last photo was taken on 17 July 1996. Further, the Board noted that, if the applicant submitted this photograph to PERSCOM for inclusion in his promotion file, then that photograph showing the date taken would have been submitted to the promotion board.

6. Based on the foregoing, the Board determined that the entry showing the date of the last photograph in May 1992 is not a material error. This determination is based on the fact that, at the time the applicant authenticated his ORB, his most current photograph could not have been the 17 July 1996 photograph. Records show he authenticated his ORB on 2 July 1996 and his latest official photograph was not taken, by his own admission, until 17 July 1996.

7. The Board further determined that this entry was not a material error if the applicant in fact submitted his 17 July 1996 photograph to PERSCOM for inclusion in his promotion file because the Promotion Selection Board is provided the most current official photograph available. In the event the applicant did not submit his 17 July 1996 photograph to PERSCOM for inclusion in his promotion file, then his 17 July 1996 photograph was not the most current photograph.

8. After review of all the evidence in this case and the latest submission, this Board also concluded the applicant has presented no argument or evidence which is sufficient to reverse the previous decision rendered by the ABCMR in AR1999027264 on 9 September 1999.

9. 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

SK_____ JTM_____ TEO_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064264
SUFFIX
RECON	Yes
DATE BOARDED	20020606
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.1100
2.
3.
4.
5.
6.