MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 April 2003
         DOCKET NUMBER: AR2002082001

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor Jr.		Chairperson
Ms. Terry L. Placek		Member
Mr. Robert Duecaster		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: In effect, that he be promoted to the rank of colonel (COL).

APPLICANT STATES: In effect, that the action of the Promotion Selection Board (PSB) should be reversed and he should be promoted to COL. He claims that although his records indicate outstanding and superior service, and the PSB was aware of his mandatory removal date (MRD), which precluded him from appearing before the next promotion board, they chose to ignore the facts. He states that he has struggled with the fact that no matter how efficient and how hard he worked to support the United States Army Reserve (USAR) for all the years he served, he was arbitrarily passed over for promotion to COL. He claims that if he was not certain of obtaining the rank he strived for, he could have taken his lieutenant colonel (LTC) and left the program. He states that at the time he decided to remain, the USAR was struggling to recruit and retain its personnel. The burden of keeping a unit viable was set upon the senior officers, and he was needed. He claims that no matter how difficult the task, he kept supporting the USAR. In support of his application, he provides copies of Letters of Appreciation, Officer Evaluation Reports, and a Meritorious Service Medal certificate, which he claims attest to his value to the USAR.

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

He served on active duty in an enlisted status from 26 April 1951 through
27 August 1952. He was appointed a second lieutenant in the USAR on
28 August 1952, and continuously served in the USAR until being transferred to the Retired Reserve, in the rank of LTC, on 27 September 1980.

On 1 June 1989, upon reaching age 60, the applicant was retired from the USAR. A Data for Retired Pay (DA Form 3713), dated 18 May 1989, prepared on him during his retirement processing, confirms that he had completed
25 years, 4 months, and 2 days of qualifying service for retired pay, and that he was being placed on the Retired List in the rank of LTC.

The record shows that the applicant was promoted to LTC on 12 April 1975, and he was considered and not selected for promotion to COL by the 1979 Department of the Army (DA) Reserve Components (RC), PSB.

In connection with the processing of this case, an advisory opinion was obtained from the Chief Special Actions, Officer of Promotions, RC, U.S. Total Army Personnel Command (PERSCOM), St. Louis, Missouri. It states that PSBs are not required to record their reasons for selection or non-selection, and it has been a long standing DA policy to select or not select without recording the reasons.

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The PERSCOM opinion further states that DA selects promotion board members based on their maturity, experience, and good judgment, and trusts them to objectively and impartially evaluate the officer’s record and arrive at a decision. The Secretary of the Army prescribes the number of officers to be selected from the list of those that are eligible. Unfortunately, not all qualified officers are selected for promotion. This promotion official further states that the applicant has been informed of this information in numerous correspondence to him and through responses to Congressional inquiries dating back to 1984. Finally, this official states that in view of the facts presented, it is recommended that the applicant’s request be denied.

On 15 March 2003, the applicant responded to the PERSCOM advisory opinion. He states that his military record will stand up to any submitted to the 1979 PSB for promotion to COL. He claims that the Army admits that he was qualified for promotion, but not all qualified officers were promoted. He claims that the fact that his MRD was within days and he would have no further opportunity to compete for promotion in subsequent boards should have been a mitigating factor. He further states that he continued to serve in the USAR when the program was in trouble and he was needed because he always believed it would earn him the promotion to COL. Although DA insists that his records that went before the 1979 PSB were complete, he considers it an injustice that the promotion board members could not recognize the fact that he, an officer recognized by DA as qualified for promotion, would not be eligible to go before a later convened board and taken this fact into consideration. He concludes by admitting that he has been informed that his military records were complete by DA on numerous occasions. However, he will continue to insist that he has been unfairly treated by the system and will continue to insist that DA consider his promotion to COL.

Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the USAR. Chapter 3 provides promotion board procedures, and paragraph 3-16 contains guidance on selection board recommendations. It states that Promotion Selection Boards will base their recommendations on impartial consideration of all officers eligible for consideration, and keep confidential their reasons for recommending or not recommending any officer considered.

Paragraph 3-16 further stipulates that for commissioned officers either the “Fully Qualified” or “Best Qualified” method will be used. The “Fully Qualified” method will be used when the maximum number of officers to be selected, as established by the Secretary of the Army equals or exceeds the number of officers in the zone of consideration. Although the law requires that officers recommended for promotion be "best qualified", when the number to be recommended equals the number to be considered an officer who is fully qualified for promotion is also best qualified for promotion.
Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade. The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill.

The “Best Qualified” method will be used when the board must recommend fewer than the total number of officers to be considered for promotion. However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion. As specified in the instructions for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion.

Section III, Army Regulation 135-155 provides the policy on promotion reconsideration boards. It states that officers records may be placed before a Special Selection Board for reconsideration when it is determined that their records were not submitted to a PSB for consideration; or the record contained a material error when it was reviewed by the promotion selection board.

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 notes the applicant’s claim that he should have been selected for promotion to COL and that promotion board members should have given consideration to the fact his MRD was approaching and he would not have the opportunity to be considered by a subsequent selection board. However, it finds this factor is not sufficiently mitigating to warrant the requested relief.

2. By regulation, officers are considered and selected for promotion under fully and best qualified methods based on the needs of the Army. Selection is the result of the collective best judgment of the members of the PSB, and the specific reasons for non-selection are not published. Further, to support reconsideration by a SSB, there must be evidence showing that the record reviewed by the PSB contained a material error.

3. The evidence of record confirms that the applicant was considered and not selected for promotion to COL in 1979. There is no evidence that suggests that his military record was missing material information or contained a material error when it was reviewed by the PSB. Thus, the Board finds no material error was present that would warrant his promotion reconsideration at this time.

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4. In addition, notwithstanding the applicant’s belief that he should have been promoted, there is also a lack of any convincing evidence to show that promotion board members were arbitrary or used flawed judgment their decision not to select the applicant for promotion. Under the established USAR promotion consideration process, it is clear that fully qualified officers may not be selected for promotion for a variety of reasons. These reasons include, but are not limited to, the needs of the Army in a particular specialty and/or the quality of the officers in the zone of consideration. Lacking evidence showing that the PSB that considered the applicant acted contrary to law or made a material error, the Board finds no injustice related to the applicant’s non-selection for promotion to COL.

5. 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.

6. 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

__tlp____ __rvo ___ __rld____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082001
SUFFIX
RECON
DATE BOARDED	2003/04/23
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.