MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002081524

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones		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 lieutenant colonel (LTC).

APPLICANT STATES: That he was nonselected to LTC because favorable data was removed from his promotion Officer Record Brief (ORB) by the U.S. Total Army Personnel Command (PERSCOM). He claims that he was told by a board member that he was wearing unauthorized awards. He states that PERSCOM admitted to removing awards from his ORB which created an image of "lack of integrity." He states that the promotion board was told to verify all awards but was not informed of the removal of the awards. He also states that subsequent promotion boards did not remove awards from his files.

In support of application, the applicant submitted a letter from a fellow officer; two memorandums requesting promotion reconsideration to LTC; a copy of his ORB, dated 17 November 1997; his Performance Fiche, dated 24 January 1998; a copy of his ORB, dated 25 January 1999; and his Performance Fiche, dated 21 January 1999.

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

The applicant is currently serving on active duty in the rank of major.

He was inducted in the Army United States as an enlisted soldier on 18 April 1967 and was honorably released from active duty on 17 April 1969. On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group and served in this component until 17 April 1973.

The applicant was appointed as a Reserve commissioned officer in the Chaplain Corps on 29 February 1980.

He was promoted to the rank of captain in the USAR with a date of rank of 28 February 1984.

On 31 March 1988, the applicant was approved for conditional voluntary indefinite extension of active duty which commenced on 5 March 1992.

On 8 January 1993, PERSCOM published orders which promoted the applicant to the rank of major with an effective date and date of rank of 1 February 1993.

On 29 January 1993, the applicant executed an Oath of Office (DA Form 71) which shows he was appointed as a commissioned officer in the Regular Army in the rank of major.

The applicant provided a copy of his ORB, dated 17 November 1997 and submitted to the FY98 promotion selection board. The ORB was signed and dated by the applicant on 10 December 1997 attesting to the accuracy of the data. Section VIII (Awards and Decorations) on the ORB lists his awards and decorations.

The evidence of record shows the applicant was considered by the FY98 LTC Chaplain Promotion Selection Board which recessed on 30 January 1998 and was not selected for promotion.

In a memorandum dated 3 August 1998, the applicant submitted a request to PERSCOM for promotion reconsideration by the FY98 LTC Chaplain Promotion Selection Board.

Evidence of record available to the Board shows that the applicant's request for promotion reconsideration was denied by PERSCOM on 26 October 1998.

In a memorandum dated 23 December 1998, the applicant submitted a second request to PERSCOM for promotion reconsideration. However, there is no evidence of record available to the Board which shows whether action was taken by PERSCOM in response to the applicant's second request for promotion reconsideration.

The applicant provided a copy of his ORB, dated 25 January 1999 and submitted to the FY99 promotion selection board. This copy of the ORB was not signed by the applicant, but the ORB had been reviewed and the statement at the bottom of the ORB indicated "original signed." The applicant's awards and decorations are listed in Section VIII.

The evidence of record shows the applicant was considered by the FY99 LTC Chaplain Promotion Selection Board which recessed on 28 January 1999 and was not selected for promotion.

There is no evidence of record which indicates that the awards and decorations were removed from the applicant's ORB prior to submission to the FY98 or the FY99 LTC promotion selection boards.

On 24 May 1999, The Adjutant General of the Army informed the applicant that he had been twice nonselected for promotion to the rank of LTC by a Department of the Army Promotion Selection Board. He was also informed that he had been recommended for selective continuation on active duty in the rank of major.

The applicant acknowledged his receipt of the notification of selective continuation and submitted his election to remain on active duty with the understanding that he would serve on active duty in his current active duty grade until eligible for retirement, under Title 10, United States Code Section 3911 unless sooner separated or retired under some other provision of law or regulation.

In the processing of this case, a staff advisory opinion was obtained from the Deputy Chief of the Promotions Branch at PERSCOM.

The opinion states that the applicant was considered and not selected for promotion to lieutenant colonel by the FY98 and FY99 LTC Chaplain Promotion Selection Boards. The opinion also states that the applicant requested promotion reconsideration on 3 September 1998 and the request was denied on 26 October 1998.

The opinion points out that promotion reconsideration is authorized under Title 10 of the United States Code and is approved only for nonselected officers whose records contained a material error when they were considered by a promotion selection board. The opinion defined a material error as, 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 have been selected for promotion.

The Deputy Chief of Promotions Branch noted the applicant's contentions that PERSCOM had removed documentation of several awards and certificates from his file (microfiche) and Officer Record Brief which created an image of "lack of integrity." The Deputy Chief also noted the applicant's contention that his awards were in his file two weeks prior to the promotion selection board.

In response to the applicant's contentions, the Deputy Chief of Promotions Branch stated that the applicant is not specific concerning the awards or certificates that were removed from his records and that the officer signed an ORB on 10 December 1997 which contained all his awards and decorations. Also, this same ORB was seen by the FY98 promotion selection board. The Deputy Chief stated that the ORB is an official statement when seen by the promotion selection board. He continued to state that if the board members questioned the validity of the awards, they would have asked the promotion selection board recorder to verify with Awards Branch and the applicant's branch.

In further response to the applicant's contentions, the Deputy Chief stated that the ORB seen by the FY99 promotion selection board also contained his awards and decorations with an additional Army Commendation Medal and Army Achievement Medal. It was noted that PERSCOM responded to the applicant in reference to Army Regulation 600-8-29 (Officer Promotions) which states that the absence of Army awards and decorations below the level of a Silver Star are not a basis for promotion reconsideration.

In conclusion, the Deputy Chief of Promotions Branch opined that the applicant had not provided any new additional information to warrant promotion reconsideration and recommended that the applicant's request be denied.

On 16 January 2003, a copy of the advisory opinion was provided to the applicant to allow him to submit comment or rebuttal. The applicant submitted a response to the advisory opinion on 15 February 2003.

In essence, the applicant contends that the documents removed from his file were all the Army Commendation Medals and two Army Achievement Medals.
He contends that the ORB signed was not the ORB submitted to the promotion selection board. He claims that PERSCOM created a different ORB which was unsigned and submitted to the promotion selection board. He states he was informed by an officer at PERSCOM that an ORB was not an official document because "anyone could input data on an ORB." He also states that the microfiche created by PERSCOM was considered the official document and the awards were removed from the microfiche. He claims that the unsigned ORB submitted to the promotion selection board by PERSCOM did not contain the awards.

The applicant contends that the board members should have asked concerning the validity of his awards, but they did not. He claims that the board assumed that he was "padding" his photo and voted accordingly without checking. He states that the FY99 promotion selection board said that he had too much "muddy boot" time and no administrative assignments. The applicant contends that this is prejudicial due to the fact that he had the assignments given to him by "DACH."

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph
1-13 of this regulation provides that an officer who has failed to be selected for promotion to lieutenant colonel a second time will be subject to: discharge; retirement under any provision of law, if eligible, on the date requested by the officer and approved by proper authority, but not later than the first day of the seventh month beginning after the month in which the President or the President’s designee approves the report of the board that considered the officer the second time; retained on active duty (if a commissioned officer) until qualified for retirement if, on the date the officer would otherwise have been discharged, he or she is within 2 years of qualifying for retirement under 10 USC 1293, 3911; or selectively continued.

Paragraph 7-11 of Army Regulation 600-8-29, specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board. The regulation also states requests for reconsideration will be forwarded to the Commander of 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.

Paragraph 7-3 of Army Regulation 600-8-29 also lists those situations in which an officer will not be considered or reconsidered for promotion by a Special Selection Board. These situations include: 1) letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF; 2) the consideration involved an officer below the promotion zone; 3) the promotion selection board did not see an official photograph; and 4) the board did not consider correspondence to the board president that was delivered to the board secretariat after the established cutoff date announced in the board zone of consideration message.

Army Regulation 624-100 prescribes the policies and procedures for promotion of officers on active duty. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board considered the applicant's contentions that he was nonselected for promotion to LTC due to the removal of favorable data from his ORB.

2. The evidence of record shows the applicant was twice nonselected for promotion to LTC.

3. The Board noted that the applicant's ORB submitted to the FY98 LTC Chaplain Promotion Selection Board was signed and dated by the applicant attesting to the fact that the information contained on this document was true and accurate. This ORB shows the applicant's awards and decorations in Section VIII (Awards and Decorations) including the Army Commendation Medals and Army Achievement Medals which the applicant stated were removed.

4. The evidence of record shows the applicant submitted a request to PERSCOM for promotion reconsideration by the FY98 LTC Chaplain Promotion Selection Board. However, his request was denied.

5. The evidence of record shows the applicant submitted a second request for promotion reconsideration. There is no evidence of record which indicates action taken by PERSCOM regarding his second request.

6. The Board reviewed the applicant's ORB submitted to the FY99 LTC Chaplain Promotion Selection Board. The Board noted that this copy of the ORB had not been signed by the applicant, but it certifies that the applicant had signed the original ORB. This ORB also lists the applicant's awards and decorations.

7. There is no evidence available to the Board which shows that the applicant's awards or decorations were removed from the ORB submitted to the FY99 promotion selection board.

8. In accordance with Army Regulation 600-8-29, in effect at the time, an officer will not be reconsidered for promotion by a Special Selection Board for "letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF."

9. Upon review of all the evidence and the advisory opinion provided by Promotions Branch, the Board determined that there is no error or injustice that exists in this case.

10. Based on the foregoing, there is no basis for granting the applicant promotion reconsideration to the rank of LTC.

11. 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.

12. 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

LLS_____ LE______ FCJ_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081524
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030529
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.0000
2.
3.
4.
5.
6.