MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2003085059

         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. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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, reconsideration for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB).

APPLICANT STATES: In effect, that he believes the Fiscal Year 2000 (FY00), Army Competitive Category (ACC), LTC, Promotion Selection Board (PSB), made a material administrative error of fact by differentiating between officers in the promotion zone (PZ) from officers above the promotion zone (APZ); and further by using year groups (YG) to determine officers in the PZ and APZ. He also states that the PSB did not have a joint officer designated by the Chairman, Joint Chiefs of Staff (JCS), as prescribed by statute.

In effect, the applicant claims that when considering officers for promotion, the PSB in question distinguished between the officers being considered in the PZ and the officers being considered from APZ. He further contends that the PSB was illegally constituted because it did not have a joint officer who was designated by the Chairman, JCS, serving on the board. He contends that the joint staff member of the PSB was designated by the Director, Joint Staff, and not by the Chairman, JCS, which does not satisfy the requirements of the law and Department of Defense policy.

The applicant concludes his statement by asserting that an injustice was created when the PSB in question used YGs to distinguish between the PZ and APZ officers in the zone of consideration. He states that the PSB After-Action Report (AAR) of the PSB clearly shows that the members distinguished between the two zones of consideration. He further states that promotion officials of the United States Army Personnel Command (PERSCOM) failed to apply the allowed parameters when considering both of his requests for promotion reconsideration.

The applicant finally claims that PERSCOM officials applied an erroneous definition of the word “material” as being a tangible item in an officer’s record instead of meaning relevant or having an affect on the outcome. He further contends that it is clear the PSB was illegally constituted because it was not composed in strict compliance with the statute by having a joint officer appointed by the Chairman, JCS. The applicant’s full statement, containing his entire argument and all his issues and contentions, is enclosed and was available for the Board’s consideration during its review of this case.

In support of his application, the applicant provides copies of the following documents: PSB AAR; PERSCOM career and professional timeline charts; his promotion reconsideration requests and the PERSCOM denials with associated documents; and Freedom of Information Act (FOIA) requests he submitted in regard to the conduct and membership make-up of the PSB in question.

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

He was commissioned a second lieutenant and entered active duty on
17 December 1982. On 1 June 1998, he was promoted to major. As of the date of his application to this Board, he was still serving on active duty as a major at Fort McPherson, Georgia.

The applicant was considered and not selected for promotion to LTC by the
FY00, LTC, ACC, PSB, which published its AAR on 23 March 2001. Section I contained information pertaining to population characteristics, branch/skill anomalies, and joint officers. In the population characteristics portion of this section there was a statement that indicated that the majority of APZ files were considered to be fully qualified.

On 8 November 2000, the applicant submitted a request for promotion reconsideration to PERSCOM. He based on his request on his belief that although he was in the PZ for promotion, the PSB erred by unfairly using his YG as a discriminator.

The applicant was notified that his request for promotion reconsideration was disapproved in a 19 March 2001 PERSCOM memorandum. The reason cited for the disapproval was the absence of a material error in his promotion file. The memorandum explained that the law authorized promotion reconsideration only for non-selected officers whose records contained a material error when they were considered by a PSB. A material error was defined as being an error of such a nature that, in the judgment of the reviewing official, had it been corrected at the time the individual was considered by the PSB, it would have resulted in a reasonable chance that the individual would have been selected for promotion. It further stated that the applicant’s assertion that the PSB differentiated between the PZ and APZ by using YG as discriminator was noted; however, eligibility for consideration by a PSB is determined by date of rank, not YG.

On 30 October 2001, the applicant submitted a second request for promotion reconsideration to PERSCOM. He based this request on what he believed was PERSCOM misinterpretation of the application of material error criteria that allowed for promotion reconsideration. He claimed that PERSCOM had indicated that promotion consideration was only authorized by law when it is determined that a material error existed in the officer’s file at the time of promotion consideration, but the law in fact authorized reconsideration when “the action of the promotion board that considered the person was contrary to law or involved material error of fact or material administrative error. He claims that a “material error of fact” is the erroneous use of a fact, and is relevant to the matter being considered in his case, and that the use of YG in distinguishing between PZ and APZ officers would be a material error in fact.
The applicant was informed that his second request for promotion reconsideration was returned without action in a 12 December 2001 PERSCOM memorandum. The reason cited was that the applicant failed to provide any additional information to indicate a material error existed in his file. He was advised that he could apply to this Board if he still believed an injustice existed.

On 31 October 2000, the Information Management Officer, Deputy Chief of Staff, Personnel (DCSPER), responded to a FOIA request by the applicant and provided the applicant a copy of the PSB AAR.

On 23 January 2002, the applicant requested the name of the officer appointed to the PSB in question who was serving in a joint position and was appointed by the Chairman, JCS. In response, the applicant was provided the name of this officer by the Chief, Officer Division, DCSPER.

On 15 April 2002, the applicant requested a copy of any documents appointing the joint officer to the PSB in question. On 27 June 2002, he was provided a copy of an appointment memorandum signed by the Director, Joint Staff. The applicant has a FOIA request pending on the delegation of this authority from the Chairman, JCS to the Director, Joint Staff.

Army Regulation 600-8-29 provides the Army policy and procedures for officer promotions. Paragraph 1-31 (Composition of selection boards) states, in pertinent part, that selection boards considering commissioned officers who are serving in, or have served in, joint duty assignments will include at least one officer, designated by the Chairman, JCS, who is currently serving in a joint duty assignment.

Chapter 7 contains guidance on promotion consideration by a SSB. It states, in pertinent part, that an officer or warrant officer may be reconsidered for promotion by a SSB when one or more of the following conditions exist: an officer was not considered for promotion from in or above the promotion zone by a regularly scheduled board because of administrative error; a promotion board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; and/or the board that considered an officer from in or above the promotion zone did not have before it some 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. The Board notes the applicant’s contentions that FY00 LTC PSB unjustly used YG to distinguish between officers in the PZ and that the joint service officer was improperly appointed. However, it finds insufficient evidence to support these claims.
2. The applicant has provided information that indicates that some Army personnel officials often used YG in establishing career and professional timelines, and to discuss promotion opportunity. However, the Board does not find that the information and argument provided by the applicant in any way shows that the PSB in question specifically used YG as a discriminator in its promotion selection process. Further, the AAR comments made in regard to the qualifications of APZ officers does not lend itself to a conclusion that YG was used by the PSB to distinguish between officers in the PZ from those APZ.

3. The Board also considered the applicant’s claim the PSB in question was illegally constituted because the joint staff officer member was appointed by the Director, Joint Staff and not directly by the Chairman, JCS. However, the Board finds that even if the Director, Joint Staff was not formally delegated this authority, it would still not constitute an error that would render the promotion selection process unjust in this case.

4. The clear intent of the regulatory requirement to have a joint staff officer member of any PSB that considers officers with joint service experience is clearly to ensure these officers receive fair consideration of that service during the promotion selection process. Thus, the critical factor in this regard is that a joint officer was appointed and served on the PSB in question. In the opinion of the Board, although there is no evidence of a formal delegation provided, even if the Director, Joint Staff had not been formally delegated this authority in writing, he is obviously the senior member of the Joint Staff that would likely be entrusted with this responsibility by the Chairman, JCS.

5. In view of the facts of this case, the Board finds that the applicant has failed to provide sufficient evidence to show that the PSB in question acted contrary to law or made a material error in fact. Further, the lack of evidence of a formal delegation of authority in the case of the appointment of the joint officer member of the PSB does not render the selection process inequitable or unjust. Thus, the Board concludes that the requested relief is not warranted in this case.

6. 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.

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

___teo __ ___tbr___ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085059
SUFFIX
RECON
DATE BOARDED	2003/04/01
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.