MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002071768

         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. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Anderson		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: That he be reconsidered for promotion selection to lieutenant colonel (LTC).

APPLICANT STATES: That he believes a material unfairness existed at the time of his consideration by the FY2001 LTC Promotion Selection Board that unfairly disadvantaged him during the competitive selection process. The applicant states that, in June 2001, he was informed by his chain of command that he was a non-select for LTC by the FY2001 LTC Promotion Selection Board. He states this was the second time he was a non-select for LTC. The applicant states that after reviewing his file with his branch assignments officer, the assignments officer was unable to determine why he was passed over for promotion. The applicant states that it was at this time he noted paperwork from another officer in his file, and a recent officer evaluation report (OER) missing from his file. He states that he subsequently requested copies of his promotion board files for both FY2000 and FY2001 LTC Boards to determine if there was an error or omission in his board file or if paperwork from another was erroneously included as part of his board file that might have caused his non-selection.

The applicant states that while there was no errors, omissions, or erroneous additions, he was surprised to see his second lieutenant (2LT) OERs on his microfiche. He states that he was under the impression that 2LT OERs did not go before a LTC selection board. He states that he was concerned about this because he had received a below center of mass (COM) OER as a 2LT.
He also states that on 1 October 1997, the Chief of Staff of the Army (CSA) directed that access to Active Component 2LT OERs be restricted after an officer's promotion to captain (CPT). The intent of the program was to remove information from an officer's performance file that may simply have been a reflection of an initial learning curve, and thereby, precludes its use for personnel management decisions later in an officer's career. The initial requirement was to remove 2LT OERs for all CPTs and other officers eligible for consideration by the FY1998 Resident Command and General Staff College.

In conclusion, the applicant believes that he was materially disadvantaged when his file, which contained his 2LT OERs, went before the FY2001 LTC Promotion Selection Board along with the primary zone year group (YG) 1985 files, which did not contain 2LT OERs in their files.

In support of his application, the applicant submitted in his own behalf a five-page memorandum with four enclosures to the Board, dated 19 April 2002. The four enclosures consisted of: 1) a three page request for reconsideration by a special selection board with three enclosures, dated 15 October 2001; 2) a response to the applicant's request for promotion reconsideration from US Total Army Personnel Command, dated 3 January 2002; 3) a Memorandum for Record, dated 31 January 2002; and 4) a copy of his Officer Record Brief.

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

The applicant is serving on active duty in the rank of major performing duties as a C4I Systems Integration Officer in the Office of the Deputy Chief of Staff for Intelligence, G-2 The Pentagon, Washington, DC.

The applicant's performance portion of his Official Military Personnel File (OMPF) contains his evaluation reports. The applicant's records show that he has received 29 OERs during his current military service. All of his raters stated that he always exceeded requirements/outstanding performance - must promote and should be promoted ahead of his contemporaries/best qualified. The applicant's raters always gave him a 1/yes in Part IV Performance Evaluation - Professionalism. The applicant's overall OERs fluctuated between COM and above COM.

However, as a 2LT, the applicant received one below COM OER covering the period 31 May 1985 thru 11 October 1985 for duties as an assistant S2 at Fort Bragg, North Carolina. Although he was placed in the third block, the applicant's rater gave him a 1 in Part IV Performance Evaluation - Professionalism and stated he always exceeded requirements and should be promoted ahead of his contemporaries. He also stated that he had great potential and would be an excellent candidate for the Postgraduate Intelligence Program or advanced civil schooling in the automated data processing field.

In June 2001, the applicant's chain of command informed him that he was a non-select by the FY2001 LTC Promotion Selection Board. This was his second non-select for LTC and his first above zone consideration.

On 15 October 2001, the applicant requested promotion reconsideration by a Special Selection Board. He based his request on provisions of US Code, Title 10, Section 628 and Army Regulation (AR) 600-8-29 allowing reconsideration for promotion when a material unfairness existed at the time of the promotion board. The basis of the applicant's unfairness was the implementation of the 2LT OER Restricted Access Program, which resulted in the applicant's above the zone file appearing before the FY2001 LTC Promotion Selection Board with 2LT OERs included while the primary zone files did not have 2LT OERs. The applicant stated he believed this to be unfair and justified a reconsideration of his file.

On 3 January 2001 [2002], the US Total Army Personnel Command, Promotions Branch, responded to the applicant's request for reconsideration of his non-select for LTC. The Promotions Branch staff stated that after careful review, the applicant's request for reconsideration could not be approved. It was noted that promotion reconsideration is approved only for non-selected officers whose records contained a material error when they were considered by a promotion selection board. A material error is defined as being of such a nature that, in the judgment of the reviewing official or body, had it been corrected at the time the individual was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the individual would been selected for promotion. The staff also noted that 2LT OERs are critical for promotion to captain; however, experience has shown that after the major promotion and Command and General Staff (CGSC) Selection Boards, lieutenant OERs serve little purpose in later board deliberations. Therefore, the 2LT OERs for officers going before the FY1998 CGSC Board were masked, but officers in YG1984 and earlier were not masked as they had already passed that critical juncture. The staff concluded that the applicant as an officer being considered above the zone for the FY2001 LTC Army Board, his 2LT OERs would have had no impact on the selection process.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were non-selected 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. Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

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. The Board noted the applicant's contention that his 2LT OERs created a material unfairness by being in his file when he went before the FY2001 LTC Promotion Selection Board. However, the applicant provided no substantial corroborating evidence to support his contention.

3. The evidence of record shows the applicant's 2LT OERs were in his file when he was promoted to first lieutenant, captain, and major; however, there is no evidence that the 2LT OERs impacted negatively on those promotions.


4. The evidence of record also reveals that the applicant went before the FY2000 LTC Promotion Board with his 2LT OERs in his file, as did everyone else in the primary zone (YG1984) for this selection board. The applicant was on equal footing with the other officers going before this board, as far as 2LT OERs being in their files; however, he was not selected for promotion to LTC.

5. The Board also noted that PERSCOM, Promotions Branch staff stated that 2LT OERs are critical for promotion to captain; however, experience has shown that after the Major promotion and Command and General Staff (CGSC) Selection Boards, lieutenant OERs serve little purpose in later board deliberations. Therefore, the applicant as an officer being considered above the zone for the FY2001 LTC Army Board, his 2LT OERs would have had no impact on the selection process.

6. After a thorough review of the applicant's file, the Board concluded that there was no material unfairness in the applicant's file when the FY2001 LTC Promotion Selection Board considered him, as an above the zone major, for promotion to LTC with his 2LT OERs in his file.

7. 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

__mhm___ __ena___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071768
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.0100
2.
3.
4.
5.
6.