PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2002070491


         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		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, that he be reconsidered for promotion to colonel/0-6 (COL/0-6).

3. The applicant states, in effect, that the decision of the Officer Special Review Board (OSRB), that the absence of an Officer Evaluation Report (OER), for the period 1 October 1997 through 13 February 1998, from his Official Military Personnel File (OMPF), did not constitute a material error that warranted promotion reconsideration should be reversed. He claims that the OER was not completed on time, through no fault of his own, and should be considered to have arrived on time for the promotion board. In his opinion, the OSRB incorrectly concluded that the presence of this OER did not constitute a material error that would result in a reasonable change for promotion without considering the impact of the new rating system. In addition, he contends that the OSRB, in rendering its decision, ignored the importance of the senior rater comments on the missing OER, overemphasized his above the zone (AZ) status, ignored the fact that the Medical Service (MS) Corps routinely selects AZ officers, and underestimated the quality of his overall record. He provides the enclosed statement with a more detailed explanation.

4. In the applicant’s expanded statement, he points out that the OSRB, in its consideration of his case, failed to recognize the importance of the new OER system that was implemented on 1 October 1997, and that the OER in question was his first report under the new system. Given the fact that only 26 percent of the new OERs were above COM, a high percentage of those officers he competed against for promotion would have been COM, and many would not have yet received an OER under the new system that was less than a year old at the time the promotion board met. He also indicates that the absence of the OER in question could have resulted in an erroneous conclusion by the members of the promotion board, that he failed to ensure his record was complete or worse that it was being reviewed for adverse comments. In any case, the promotion board members were not aware of his performance during the rating period because his senior rater (SR) did not complete the report. A new report, given the emphasis on muting the previous reports of most officers, would have had even a greater impact on the promotion board members. While the rating officials of other officers were ensuring that their officers received an evaluation under the new OER system to bolster their promotion changes, his SR failed to process his report. Therefore, the applicant contends that the OSRB characterization of this OER as just another center of mass (COM) report is inaccurate and unfair and in his opinion, the absence of this report clearly constitutes a material error.

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5. The applicant also claims that the OSRB infers that his record was not competitive, but fails to mention any specific aspect of his record that led them to this determination. He also comments on the selection rate issue raised by the OSRB given his AZ status. He claims that the overall propensity of the MS competitive category to select AZ officers was not considered by the OSRB. If it had, the OSRB would have discovered that the AZ selection rate normally exceeds 10 percent of the total number selected and often 20 percent. Even for the board in question, while the OSRB focused on the low 3.3 percent select rate for the AZ category, it did not address the fact that this rate was still 10 percent of the overall select rate for that year, which was 37.3 percent. The OSRB considered his AZ status a negative factor in their determination of reasonableness; however, because of the AZ selection rate for MS Corps officers, it should have decided that the absence of the OER in question may reasonably have resulted in his selection for promotion. He finally requests that this Board reverse the OSRB decision and that the absence of the OER in question be considered as constituting a material error, and that he be reconsidered for promotion to COL/0-6.

6. The applicant’s military records show that he is currently serving on active duty at Fort Sam Houston, Texas, in the rank and pay grade of lieutenant colonel/0-5 (LTC/0-5).

7. The applicant received a permanent change of station (PCS) OER for the period 1 October 1997 through 13 February 1998, in which, he was evaluated as a Base Closure Director. The rater, a COL/06, placed the applicant in the first block (Outstanding Performance, Must Promote) in Part V ( Performance and Potential) and provided extremely complimentary comments in support of this rating. The rater completed his portion of the OER on 13 March 1998, and forwarded the report to the senior rater (SR) for completion of his portion.

8. The OER cutoff date policy established by Department of the Army (DA) for the Fiscal Year 1998 (FY98), COL/0-6, MS Corps, promotion selection board, was that all OERs that arrived at the Total Army Personnel Command (PERSCOM) and were accepted for filing in the OMPF on or before 16 June 1998, would be considered by the promotion board.

9. The FY98, COL/0-6, MS Corps promotion selection board convened on
16 June 1998 and adjourned on 2 July 1998. The applicant was considered in the AZ category by this board, but not selected for promotion. The selection rate by this board for AZ MS Corps candidates was 3.3 percent or 3 of 89.

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10. The senior rater (SR) on the OER in question, a brigadier general (BG), placed the applicant in the first block (Best Qualified) in Part VIIa (Promotion Potential to the Next Higher Grade) and in the Center of Mass (COM) block in Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade). The SR provided complimentary comments in Part VIIc (Comment on Performance/Potential), which included that the applicant performance as the Base Closure Officer was totally outstanding and through his vision, diligence, and ability to coordinate the actions of many diverse governmental and nongovernmental agencies, he had established their base closure as the premier model in the Department of Defense. The SR did not complete his portion of the OER until 7 July 1998.

11. On 26 February 1999, the OSRB acting on the request of the applicant, decided that his promotion reconsideration, based on the OER in question not being reviewed by the promotion board, was not warranted. The OSRB indicated that by regulation, before a Special Selection Board (SSB) for promotion reconsideration is convened, there must be a determination of material error. As a matter of policy, a material error is one that, had it been corrected prior to the time the officer was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. In determining if a material error exists, reconsideration may be warranted based on the nature of the inaccuracy, the officer’s overall record, and the selection rate of the promotion board concerned.

12. The OSRB in its summary, did opine that the SR on the OER in question did fail to meet his responsibility to complete the applicant’s OER in a timely manner, in order for it to be processed and included in the applicant’s promotion packet. Further, that the applicant had a right to expect that whatever outcome of the promotion board, it would have been based on his complete record and this expectation was denied through no fault of his own.

13. However, the OSRB concluded the addition of the OER in question would not have constituted either a material change to the applicant’s record or reasonably altered his chance for promotion. This conclusion of the OSRB was based on the low selection rate of AZ candidates, the fact that the applicant was in the AZ category for the second time, and the overall quality of the applicant’s record.

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14. Army Regulation 600-8-29 (Officer Promotions) prescribes the Army’s officer promotion policy. Chapter 7 contains guidance on Special Selection Boards (SSB). It states, in pertinent part, that an SSB may be convened to consider or reconsider officers for promotion when the board that considered an officer from in or above the promotion zone did not have before it some material information.

CONCLUSIONS:

1. The Board notes the applicant’s contention that the OER in question being missing from his OMPF should constitute a material error that warrants his being reconsidered for promotion and it finds this claim has merit.

2. The Board does not question the validity for the OSRB findings and recommendations in this case. Further, it does not contest the established OSRB policy that resulted in the determination that the absence of the OER in question from the applicant’s record when the FY1998 promotion board met did not constitute a material error.

3. However, the evidence of record does confirm, as outlined in the OSRB case summary, that had rating officials fulfilled their regulatory obligation to timely process the OER in question, it would have been on file in the applicant’s record when he was considered for promotion by the FY1998 promotion selection board. In addition, through no fault of his own, the applicant was denied his right to expect that the outcome of the promotion board would be based on his complete record.

4. In view of the obvious failures of the applicant’s rating officials, and notwithstanding the findings and recommendations of the OSRB, the Board concludes that sufficient doubt has been raised that warrants a determination that the absence of the OER in question from the applicant’s record reviewed by the FY98, COL/0-6, MS Corps promotion selection board, constituted a material error. As a result, in the interest of equity, the Board concludes that it would be appropriate to place the applicant’s record before a SSB for promotion reconsideration.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by submitting the records of the individual concerned to a duly constituted SSB for promotion reconsideration to COL/0-6 under the criteria followed by the FY98, COL/0-6, MS Corps, promotion selection board; and, in the event he is selected for promotion, that he be provided all back pay and allowances due as a result.

BOARD VOTE:

__JLP___ ___BJE__ __TL____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Jennifer L. Prater___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002070491
SUFFIX
RECON
DATE BOARDED	2002/05/21
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 311	131.0100
3.
4.
5.
6.