MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 November 2002
         DOCKET NUMBER: AR2002074627

         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:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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 his date of rank (DOR) for promotion to the rank of major be changed from 31 December 1996 to 3 May 2002.

APPLICANT STATES: In effect, that while on active duty, he was unjustly given a general officer letter of reprimand (GOLOR) and was informed that it was placed in his Official Military Personnel File (OMPF). He further states that he was on orders to Fort Hood, Texas, and they were revoked. In addition, he was denied continuation on active duty and separation pay. He goes on to state that he wanted to forget what was done to him by the Army and went back to civilian life to practice law. In January 1995, he became an assistant district attorney and in November 1998, was elected as a judge. In May 2001, he joined a Reserve unit as a captain and in December 2001, he submitted an appeal to the Board to remove the GOLOR from his OMPF. However, he was informed by the Board that no such GOLOR was in his OMPF. He continues by stating that he went in the Individual Ready Reserve (IRR) on 3 May 2002 to receive his promotion to major, however, his DOR was backdated to 31 December 1996, which will cause him to appear before the September 2002, lieutenant colonel promotion selection board without an officer evaluation report (OER) in his current grade or being educationally qualified. He concludes by stating that he stayed away from the Army Reserve because of the injustice done to him in Korea and now asks the Board to allow him to fairly compete and serve in the Army Reserve.

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

He was appointed as a United States Army Reserve (USAR) Judge Advocate General Corps (JAGC) first lieutenant on 1 January 1988, with a concurrent call to active duty and 3 years of constructive service for DOR purposes.

He completed his JAGC Officer Basic Course and was transferred to Germany in March 1988. He was promoted to the rank of captain on 1 August 1988.

He completed his tour in Germany and was transferred to Korea in August 1992, where he remained until he was honorably released from active duty on 31 August 1993, due to the expiration of his term of service (ETS). He had served 5 years, 7 months and 27 days of total active service and was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation.

On 28 December 2001, a memorandum was dispatched from the Total Army Reserve Personnel Command (ARPERSCOM) through the applicant’s Reserve unit, to the applicant. The memorandum informed him that he had been selected for promotion to the rank of major by the 1996 Major’s Promotion Selection Board. However, he was not in a promotable status because he was not assigned to a higher grade position, he did not have a current physical (less than 5 years old), he was under a suspension of favorable personnel actions and because there was no indication that an approved request for promotion in one lower rank had been accomplished. He was given a suspense date of 28 February 2002 to respond.

He requested an extension of the suspense date on 8 January 2002, and requested that he be given a 1-year extension to meet the promotion requirements. His request was denied because he was not eligible for an extension and he was transferred to the IRR, where he was promoted to the rank of major on 3 May 2002, with a DOR of 31 December 1996.

A review of the applicant’s OMPF fails to show that a GOLOR was ever placed in his records and that the Board informed him accordingly, when he applied to the Board in January 2002. His OMPF also shows the last OER he received on active duty, ended on 30 April 1993. A review of his OER history shows that he received six OERs while assigned to Germany and was rated below center of mass by his senior raters on all of the reports. He received one OER in Korea and was rated above center of mass on that report. His evaluation reports also show that he served as a legal assistance/administrative law attorney, whereas he provided advice on letters of reprimands, administrative separation procedures, investigations and a myriad of other administrative issues.

Army Regulation 135-155 provides the policies and procedures for the conduct of promotion Standby Advisory Boards. It provides, in pertinent part, that the Department of the Army will normally not determine that a material error exists if an officer, in exercising reasonable diligence, could have discovered the error or omission in the OMPF or related pertinent personnel document such as the Officer Record brief (ORB). Also, the officer could have taken timely corrective action such as notifying the Department of the error and providing any relevant documentation/information.

Army Regulation 600-8-104 provides policies and procedures governing the creation, maintenance and use of the OMPF. It provides, in pertinent part, that soldiers may request a copy of their OMPF by forwarding a written request to the OMPF custodian. The request must contain the soldier’s name, grade, social security number, mailing address and signature.

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 has noted the applicant’s contentions that he was under the impression that a GOLOR was unjustly filed in his OMPF and assumed that he would not get promoted because of its presence. However, the Board can find no evidence to show that a GOLOR was ever filed in his OMPF.
2. The Board does find in this case that the applicant did not avail himself of the opportunity to review his records to ensure their accuracy before he was eligible for promotion consideration.

3. This failure on the applicant’s part to remain active in the USAR and not to ensure that his records were up-to-date, has possibly resulted in his not maintaining his competitiveness for future promotions with his peers due to his lack of participation, lack of evaluation reports and lack of minimum education requirements.

4. While the Board has reviewed his explanation of what occurred while he was on active duty, this did not relieve him of his responsibility to ensure his records were up-to-date if he wanted to remain competitive in the USAR.

5. The Board applauds the applicant’s success in the civilian community; however, the Board finds that his lack of participation in the USAR was a decision that he made and does not constitute an error or injustice perpetrated
against him by the Department.

6. The Board also finds that by virtue of his experience and training as an administrative law advisor, it is reasonable that he should have been aware of the procedures for appealing a GOLOR as well as the procedures for requesting a copy of his records.

7. While the applicant is to be commended for wanting to again serve his country in an active role, he chose to put his military career to the side at the time he was pursuing a civilian career. While he could possibly have done both at the same time, the decision was his to make. While he may now believe that he made the wrong decision, the Board finds no evidence to show that any of the actions related to his current situation was a result of any action by the Department, but more so inaction on the part of the applicant.

8. 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.

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

___fe ___ ____le___ ___tl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074627
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 315	131.0500/DOR
2.
3.
4.
5.
6.