MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 July 2002
         DOCKET NUMBER: AR2002073848

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Arthur O. Omartian		Member
Mr. Raymond J. Wagner		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 promoted to colonel, O-6 with backdated date of rank and pay to his primary zone of consideration.

APPLICANT STATES: That he believes his January 2001 request for consideration was erroneously returned without action in March 2001. It was impossible for him to have submitted his request within one year of his 8 November 1997 submission since the results of the action were not received until 15 March 1999. The corrections directed by the Board on 18 February 1998 (docket number AC97-11767) were not those he had requested nor sufficient to provide for an unbiased evaluation of his potential for Senior Service College (SSC) and promotion to colonel. In January 2001 he provided information not available to him with his original submission that indicates his senior rater (SR) clearly had a preconceived bias against the aviation battalion commanders in the 101^st Airborne Division. He believes the extremely high nonselection rate for aviation battalion commanders in the 101^st Airborne Division is a clear indicator that his original request of correction to a top block senior rating (which was center of mass for his SR) would have been the only method to achieve a fair and unbiased consideration by selection boards. The board membership for the special selection boards (SSB) convened to consider his promotion were unjustly biased by the prejudicial nature of the 2-block senior rating. This is supported by the U. S. Total Army Personnel Command’s briefings provided by him in January 2001 and supported by the decision to establish a new Officer Evaluation Report (OER) form because of inflation. Additionally in the case of one SSB, the remedy ordered by the Board was rendered ineffective by the fact that a board member had been a battalion commander at the same time he served as a battalion commander. That member would have had full knowledge of the SR’s profile thus rendering the Board remedy of masking the profile useless.

The only fair way for him to achieve what his SR stated as his intention for the applicant to attend SSC and be promoted to colonel is for the Board to order his promotion to colonel with his contemporaries (fiscal year (FY) 1995 Colonel Promotion Selection Board).

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

He was commissioned a second lieutenant in the Infantry on 9 June 1973. He was later branch transferred to Aviation, appointed in the Regular Army, and promoted to lieutenant colonel on 1 June 1991.

In November 1997, the applicant applied to the Board for correction of his OER for the period ending 29 March 1993 to show he received a 1-block SR potential evaluation with promotion reconsideration to colonel and the SSC. The SR had given him a 2-block rating. Comments were, “LTC ___ is an outstanding commander. He is a talented combined arms officer who excels as an aviation task force commander in support of the Division’s aviation. He successfully led high resolution, realistic training where every soldier, section, company, as well as the task force, returns trained and ready to go to war. ___ created an atmosphere which developed young leaders who are disciplined, physically and emotionally fit, ready to withstand the hardships and dangers of combat. An across the board excellent performance by a tough, caring professional who is a must select for Senior Service College and promotion to Colonel.” The SR profile was 43/*40/1/0/0/0/0/0/0 (* indicating the applicant’s position). This was the first of three OERs he received as a battalion commander. On his two subsequent OERs, he received 1-block ratings, placing him in the center of mass on both reports. On 7 August 1996, the SR had submitted a memorandum concerning the contested OER to the president of the 1996 colonel promotion board. He stated that he intended to rate the applicant in the center of mass but he had failed to accurately represent that assessment and that his statement was meant to clarify his intent and assessment. He also stated that he intended to rate the applicant in the middle third of all his battalion commanders and he recommended promotion and SSC attendance for the applicant. The applicant was not selected for promotion.

The Board requested an advisory opinion from the Officer Special Review Board (OSRB) prior to considering the case. The OSRB contacted the applicant’s SR who reiterated that he intended to rate the applicant’s performance as center of mass. The Board noted that it was clearly not the intent of the SR to rate the applicant below or above the center of mass and concluded that it would be fair and just to have the SR’s 2-block rating remain on the report as an indicator of a center of mass rating. The Board recommended, however, removal of the SR profile from the contested OER, that he be considered by an SSB, and that he receive a one-year extension of his eligibility for SSC consideration. So much of the application that was in excess of this was denied.

In his January 2001 application requesting the Board promote him to colonel, the applicant noted that the results of the SSB based on the Board’s directed corrections were: (1) nonselection for SSC on the year of extended eligibility; (2) nonselection for promotion to colonel by the 1995 SSB (primary zone); (3) nonselection for promotion to colonel by the 1996 SSB (first time above the zone); and (4) selection for promotion to colonel by the 1997 SSB (second time above the zone). He provided slides from a 1997 Aviation Branch briefing, several of which he contended clearly indicated that the corrections directed by the Board were not sufficient to provide for fair consideration and to reflect the desires of his SR. One slide indicated that five Aviation former battalion commanders were nonselected for promotion to colonel during the FY 1997 board. He had recently discovered that four of the five nonselects were from the 101^st Aviation Brigade. That slide indicated that a 2-block center of mass battalion command OER could put the officer at risk and that strong SR comments were critical, especially if given a 2-block center of mass report. Another slide indicated that all selectees for SSC had 1-block center of mass battalion command OERs with strong write-ups.

The applicant also believed an error was made in the composition of at least one of his SSBs. The FY 1996 SSB contained a member who was also a former battalion commander from the 101^st Airborne Division during the period of his own battalion command. That member’s knowledge of senior rating trends would have further negated the effect of changes directed by the Board. His request for promotion was returned without action as a request for reconsideration submitted more than one year after the Board’s original consideration.

Title 10, U. S. Code, section 612 states that a selection board shall consist of five or more officers who are on the active-duty list of the same armed force as the officers under consideration by the board. Each member of a selection board must be serving in a grade higher than the grade of the officers under consideration by the board, except that no member of a board may be serving in a grade below O-4. Except for certain exceptions, a selection board shall include at least one officer from each competitive category of officers to be considered by the board. No officer may be a member of two successive selection boards convened under section 611(a) this title for the consideration of officers of the same competitive category and grade.

By memorandum dated 23 December 1998, the Deputy Chief of Staff’s Officer Selection Board Support SOP (standing operating procedures) was changed to add a subparagraph on potential conflicts of interests between board members. The added paragraph stated that the integrity of the board is absolutely paramount. To prevent the appearance of partiality or conflict of interest, the board appointing authority will not appoint board members that the appointing authority knows to be related by marriage or birth (or adoption) to any officer in the considered population or to another board member. No otherwise valid board will be considered invalid solely due to the existence of a potential or apparent conflict of interest.

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. It appears that the applicant’s January 2001 request to the Board for promotion to colonel was erroneously returned without action.

3. The applicant has provided insufficient evidence to show that his consideration for promotion and attendance at the SSC by the SSBs was biased.

4. The applicant contradicts himself when he contends that his SR clearly had a preconceived bias against the aviation battalion commanders and yet states that it was his SR’s intention for him to attend SSC and be promoted to colonel. He provides no evidence to show that the high nonselection rate for aviation battalion commanders in the 101^st Airborne Division was the result of anything other than the SR’s considered opinion and objective judgment of his aviation battalion commanders as compared against the considered opinion and objective judgment of other SR’s concerning their battalion commanders. As the applicant should be aware, notwithstanding any SR’s intention regarding promotion of his officers, officers are selected for promotion by boards who compare each officer with every other officer in the same competitive category. The applicant provides no evidence to show that even with the contested OER corrected to show a 1-block rating his comparative competitiveness would have resulted in his selection for promotion.

5. There is no evidence to show that the SSBs board members were unjustly biased by the prejudicial nature of the 2-block senior rating. The board members were senior Army officers who, besides getting an OER brief prior to the boards’ convening, were personally familiar with the idiosyncrasies of the OER system and particularly with its inflation problems. As the applicant noted, one of the slides provided by him indicated that all selectees had 1-block center of mass ratings (the remedy he requested). However, it also noted that these OERs had strong write-ups. The applicant’s OER had a good write-up but it is debatable whether a selection board would consider it “strong.” The OER does not state outright or otherwise indicate that he was the best of the SR’s battalion commanders (which in fact was not the SR’s intention to imply). As the SR noted, he intended to give the applicant a center of mass rating. His comments appear to show that the applicant was a center of mass officer. There is no evidence to show that a 1-block rating without a more strongly-worded SR write-up, indicating the applicant was an above center of mass officer, would have resulted in the applicant’s promotion to colonel by an SSB.

6. There was nothing contrary to law or policy to preclude the former 101^st Airborne Division battalion commander from being appointed a member of one of the SSBs that considered the applicant for promotion. He provides no evidence that the member’s knowledge of the SR’s profile prevented him from making a fair and considered appraisal of the applicant’s promotion competitiveness as compared to other officers considered by that board.

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

__KAK__ __AOA__ __RJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073848
SUFFIX
RECON
DATE BOARDED	2002/07/02
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.