MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 October 2002
         DOCKET NUMBER: AR2002074071

         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Walter T. Morrison		Member
Mr. Charles Gainor		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 to the rank of colonel by a Special Selection Board (SSB).

APPLICANT STATES: That his ex-wife sat as a member of the Fiscal Year 2001 (FY01) Colonel, Medical Service Corps Promotion Selection Board at a time that they were involved in an extremely contentious legal dispute regarding her mismanagement of their son’s college fund. He continues by stating that he requested a SSB and his request was disapproved by the Total Army Personnel Command (PERSCOM) based on a decision by the Deputy Chief of Staff for Personnel (DCSPER) Officer Special Review Board (OSRB). He goes on to state that it is unclear to him when his wife made it known that she was his ex-wife, before or during the board proceedings and who had the authority to determine that she could remain as a board member. Additionally, she delayed the scheduled court date until after she had sat on the board. He further states that while the regulation provides no prohibition of former spouses sitting on promotion boards of former spouses, does this apply when contentious legal issues exist and did she make it known, or was she required to make it known, that she was involved in a legal court case with her former spouse. He also states that the language used by the OSRB has arbitrarily labeled him as an “above the zone” officer, marking him as a washed up, has been officer, not worthy of promotion, including reconsideration. In support of his application he provides copies of the documents relating to his court case with his ex-wife and copies of the documents relating to his request for reconsideration from the PERSCOM and DCSPER, and a copy of the promotion board results.

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

He was commissioned as a Regular Army Medical Service second lieutenant on 22 May 1976. He has remained on continuous active duty and was promoted to the rank of lieutenant colonel on 1 July 1993.

His records show that he was first considered for promotion to the rank of colonel, below the zone, in 1996 and has been considered by every board convened since that year and not selected for promotion. The FY01 Colonel Promotion Board results show that the applicant was considered above the zone (AZ) along with 97 other officers and only five officers were selected (5.1%).

On 7 January 2002, the applicant submitted a request for promotion reconsideration to the PERSCOM contending that the ongoing legal action between him and his ex-wife created a significant personal bias against him that was above and beyond any bias she may have held from the original divorce. The bias prevented an impartial review of his promotion file and that his ex-wife acted contrary to Army Regulations by not recusing herself from the proceedings. The PERSCOM forwarded the applicant’s request to the OSRB for a determination on the applicant’s request.
The DCSPER OSRB advised the PERSCOM on 24 April 2002 that coordination with the Chief, Department of the Army Secretariat who administers selection boards, revealed that the applicant’s ex-wife had in fact identified herself as the applicant’s former spouse and requested guidance as to whether or not she should recuse herself. She was told to continue on the Board. The OSRB further stated that board members are tasked with the responsibility of ensuring that the selection process is scrupulously fair and will seek guidance from the convening authority or his or her designee if questions concerning personal conduct arise. Furthermore, board members who observe suspected improprieties that may adversely influence board proceedings will report this information to the convening authority or his or her designee. The board procedures are so tightly controlled that even if a board member were inclined to compromise the process, and there is no evidence that this was the case, it simply would not be possible. All board members vote the files and were instructed to consider only performance related items. Additionally, the board members are prohibited from discussing the individuals within the population considered with other board members. The OSRB opined that the FY01 board gave him a fair and impartial consideration and no evidence has been presented to show otherwise. The OSRB opined that promotion reconsideration was not warranted. The PERSCOM denied his request on 2 May 2002.

Army Regulation 600-8-29 outlines the criteria for composition and conduct of officer promotion selection boards. It states, in pertinent part, that officers chosen to participate on promotion selection boards should possess the professional characteristics and reflect the values that the Army considers to be of utmost importance. Therefore, commanders will ensure that all nominees meet the high standards expected of board members. Board members will ensure that the selection process is scrupulously fair and will seek guidance from the convening authority if questions concerning proper personal conduct arise. Any board member who in good conscience cannot carry out board member responsibilities without prejudice or partiality has a duty to request relief from the convening authority. Board members will not receive or introduce into the deliberations any information, good or bad, concerning an officer under consideration that should not be presented to the board. Members will not engage in or give the appearance of preferential treatment to an individual or group under consideration and they will not divulge details of the deliberation process before during or after the board to outside parties. Additionally, upon completing their deliberations, board members will certify in the report to the Secretary of the Army that they were not subject to or aware of any attempt to coerce or influence improperly any action in the formulation of the board’s recommendation and that the officers recommended for promotion are, in the opinion of the majority of the board, fully qualified and best qualified for promotion to meet the needs of the Army.

That regulation also provides the criteria for review by a SSB. It provides in pertinent part, that an officer may be considered by a SSB if they were not considered either in or above the zone of consideration by the regularly schedule promotion selection board due to administrative error, if the board acted contrary to law or made a material error, or if the board did not have before it material information.

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. While the Board understands the applicant’s perspective in this matter, he has failed to show through the evidence of record or the evidence submitted with his application, that his former spouse had any affect on his non-selection for promotion to the rank of colonel or that she did not fulfill her responsibilities as a promotion board member.

2. The evidence of record clearly indicates that his former spouse did surface the fact that she was a former spouse of the applicant and was allowed to continue in her role as a board member. While the applicant may not agree with that action, there is no evidence to suggest that she sought to discredit the applicant in any way.

3. Given the stringent controls placed on selection boards and the fact that a majority vote is required on each record, any attempts by his former spouse to influence his nonselection or selection, would have surfaced immediately.

4. The Board has noted the applicant’s contention that he was arbitrary labeled as an “AZ” officer by the OSRB and finds this also to be without merit. The applicant is deemed an “AZ” officer simply based on his date of rank when compared to the normal zone of consideration for promotion. It is not a derogatory term nor is intended to reflect that a person’s usefulness to the Army is over.

5. The Board has seriously considered his contentions that his ex-spouse may have affected his selection for promotion; however, it is not uncommon for promotion board members to know some of the officers that they are considering, and to have an opinion of those officers whether it be good or bad. It is for this reason that the selection board process has such stringent guidelines and makes every effort to enforce them.

6. The applicant has been considered for promotion to the rank of colonel beginning in 1996 (below the zone) and every year thereafter and has not been selected for promotion to date. While it is unfortunate, it does not mean that his ex-spouse was responsible for those nonselections or that he does not deserve promotion. In all likelihood, it means that all of those boards believed that there were other officers who better met the needs of the Army, given the limited number of officers who could be promoted.

7. 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.

8. 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:

________ ________ __cg____ GRANT

________ ________ ________ GRANT FORMAL HEARING

___wtm__ __inw___ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074071
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY 2-1 (DASA adopts minority vote to grant)
REVIEW AUTHORITY
ISSUES 1. 311	131.0100/SSB
2.
3.
4.
5.
6.