MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 30 September 2003
                  DOCKET NUMBER: AR2003089380

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 the Army Board for Correction of Military Records direct that the U.S. Total Army Personnel Command (PERSCOM) correct his Official Military Personnel File (OMPF) to reflect his authorized awards and decorations and that PERSCOM appoint a special selection board (SSB) to reconsider him for promotion to the rank of Major.

APPLICANT STATES: In effect, that his OMPF was not complete when it was presented to the FY03 Major, Judge Advocate General's Corps (JA) Promotion Selection Board. The OMPF lacked material information that led to his nonselection. The promotion board Officer Record Brief (ORB), Section VIII (Awards and Decorations), and DA photograph listed seventeen permanent awards; however, his OMPF only listed three awards. Because of the number and nature of the missing awards, board members could reasonably have concluded that he, a JAGC officer, was wearing unauthorized awards and therefore non-selected him.

In support of his application, the applicant submitted, in addition to his DD Form 149, Application for Correction of Military Record, an over two-page memorandum, dated 11 April 2003, to the Board outlining his contentions and requesting that PERSCOM be directed to correct his records and that he be reconsidered for promotion to major; a copy of a memorandum he submitted to the Staff Judge Advocate, US Army Combined Arms Support Command and Fort Lee, Fort Lee, Virginia, and the Commandant, US Army Logistics Management College, Fort Lee, Virginia, which also outlines his contentions why he should be reconsidered for promotion by a special selection board; a copy of a page printed from the internet showing that the 11th Air Defense "Imperial" Brigade was awarded the Valorous Unit Award; a copy of his DA Form 1307, Individual Jump Record; a copy of three permanent orders which award him Good Conduct Medals; a copy of a permanent order awarding him the Driver and Mechanic Badge with Component Bar Wheel; a copy of three permanent orders awarding him Army Commendation Medals; a copy of two orders awarding him Army Achievement Medals; a copy of a reply to his request for promotion reconsideration from PERSCOM dated 26 March 2003; a copy of the ORB with a brief date of 4 October 2002 which was viewed by the FY 02 JAGC Majors Promotion Selection Board; and a copy of his microfiche OMPF with a run date of 8 October 2002.

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

The FY03 Major, Judge Advocate General's Corps (JA) Promotion Selection Board that convened in October 2002, considered the applicant for promotion

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from the promotion zone (PZ). The applicant was not among those selected for promotion to the rank of major in the list that was released on 23 January 2003.

The ORB which was signed and dated by the applicant on 4 October 2002 shows the following awards and decorations in Section VIII: Meritorious Service Medal (1)//Army Commendation Medal (3)//Army Achievement Medal (2)//Army Good Conduct Medal (3)//National Defense Service Medal (2)//Southwest Asia Service Medal (1)//Noncommissioned Officer Professional Development Ribbon (1)//Army Service Ribbon (1)//Overseas Service Ribbon (1) Kuwait Liberation Medal (Kuwait)//Driver and Mechanic Badge//Parachute Badge//. The ORB was changed, in pencil, to show that the applicant had four Army Commendation Medals and three Army Good Conduct Medals. The Valorous Unit Award is not shown and the ORB was not annotated to add it.

The correction reflecting four awards of the Army Commendation Medal is correct, but the correction showing three Army Good Conduct Medals is incorrect.

The applicant was awarded his first Good Conduct Medal for the period 21 March 1978 through 20 March 1981. The applicant was awarded his second Good Conduct Medal for the period 21 March 1981 through 20 March 1983. This order is incorrect because only a first Good Conduct Medal can be awarded for a period of more than one year but less than three years as authorized by paragraph 4-5, Army Regulation (AR) 600-8-22. The applicant was awarded another second Good Conduct Medal for the period 20 March 1981 through 19 March 1984. This award of the second Good Conduct Medal is also incorrect in that the period of service should be 21 March 1981 through 20 March 1984.

A copy of the DA photograph, which was viewed by the promotion selection board, is not available for this Board's review.

The copy of the applicant's OMPF, with a run date of 8 October 2002, in the OMPF Commendatory Data, is incomplete. Only three certificates/permanent orders are on file (Permanent Orders 18-01, which awards the applicant an Army Commendation Medal; Permanent Orders 152-13, which awards the applicant an Army Achievement Medal; and Permanent Orders 353-2, which awards the applicant the Meritorious Service Medal). No other awards orders are shown on the OMPF.

A copy of the applicant's OMPF, with a run date of 23 April 2003, in the OMPF Commendatory Data, has been updated and now includes all permanent orders, which authorize the applicant an award and which the applicant submitted in support of his request.

The applicant's OMPF, with a run date of 23 April 2003, in the OMPF Service Computation Data Section has two DD Form 214s - one with a separation date of 20 August 1986 and the other with a separation date of 1 August 1992.

The DD Form 214 with a separation date of 20 August 1986 shows the following awards in Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service)): "Parachutist Badge//Driver and Mechanic Badge, Driver-W//Army Commendation Medal//Army Achievement Medal//Army Service Ribbon//Overseas Service Ribbon//Good Conduct Medal (2nd Award)//Expert Qualification Badge (M-16)//."

The DD Form 214 with a separation date of 1 August 1992 shows the following awards in Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service)): " Army Service Ribbon//National Defense Service Medal//Overseas Service Ribbon//Good Conduct Medal (2nd Award)//NCO Professional Development Ribbon//Army Achievement Medal//Army Commendation Medal//Southwest Asia Service Medal with 1 bronze service star//Parachutist Badge//." The Driver and Mechanic Badge, Driver-W Bar and the Expert Qualification Badge Rifle M-16 were added by DD Form 215, Correction to DD Form 214, prepared on 12 January 1993.

The DA Form 1307, Individual Jump Record, submitted by the applicant is not the authority for award of the Parachutist Badge. This document is used to record the details, and in particular, the number of and types of "jumps" made by an individual. Orders authorizing the award of the Parachutist Badge to the applicant are not in his OMPF, but the Parachutist Badge appears on both DD Form 214s, which are in the applicant's OMPF.

The Valorous Unit Award (VUA) was awarded the 11th Air Defense Artillery Brigade, 1st Air Defense Artillery, 2nd Battalion, for the period 17 January through 1 March 1991 on Department of the Army General Orders 27, dated 27 December 1994. According to the ORB, the applicant was assigned to this unit on 6 July 1990 and was deployed to Southwest Asia from 23 September through 14 November 1990, as part of the unit.

On 26 March 2003, the Deputy Chief, Promotions Branch, PERSCOM, responded to the applicant's request for promotion reconsideration. His request for promotion reconsideration was denied. In the response, the Deputy Chief, Promotions Branch, advised the applicant that, "Promotion reconsideration is authorized under Title 10 of the US Code, and is approved only for non-selected officers whose records contained a material error when they were being considered by a promotion selection board."

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The Deputy Chief, Promotions Branch, defined material error as, "being of such a nature that, in the judgment of the reviewing official (or body), 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." He added that, "I can assure you that the board reviewed your complete promotion file. Your promotion board Officer Record Briefs (ORB) indicates that you signed and certified for its correctness on 4 October 2002. And as stated by you, your ORB did reflect your awards and decorations. All of these documents were not present on your microfiche and they are still not present on your microfiche." He concludes by stating that, "AR 600-8-29, chapter 7, states that Army awards and decorations below the level of Silver Star are not a basis for promotion reconsideration."

Special Selection Boards are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.

Army Regulation (AR) 600-8-29 prescribes the policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 of this regulation provided for the convening of special selection boards under the provision of Title 10, USC 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a.) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; b.) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and c.) the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

The above cited regulation also states that, " an officer will not be considered or reconsidered for promotion by an SSB when the following occurs:

a.) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board.

b.) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. The ORB is a summary document of information generally available elsewhere in the officer's record. It is the officer's

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responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

c.) Letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF."

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. In order to justify the referral of an applicant's record to a standby selection board, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record that was presented to the promotion selection board did not have before it some material information. The applicant has failed to submit evidence that would satisfy this requirement.

2. The promotion selection board had ample information pertinent to the applicant's authorized awards with which to make a decision to promote or not to promote the applicant. This information was in the applicant's ORB, in the DD Form 214s, which appear in the applicant's OMPF, and in the permanent orders that were on file in the OMPF.

3. All awards to which the applicant was entitled before the convening date of the promotion selection board were available for the promotion board's review on his DD Form 214s, earlier versions of ORBs that appeared on the OMPF, in the General Administrative Data, and in permanent orders as well as the ORB which the applicant authenticated and submitted to the board.

4. The applicant's OMPF, as evidence by the OMPF with a run date of 23 April 2003, has been updated and now includes all permanent orders, which authorize the applicant an award and which the applicant submitted in support of his request.

5. Aside from the VUA not appearing anywhere in the applicant's OMPF, none of the awards are in the level above the Silver Star and therefore, there is no basis for justifying promotion reconsideration.

6. This Board will not direct correction of the erroneous Good Conduct Medal situation that now exists. It is incumbent upon the applicant to seek assistance from his servicing personnel office in correcting the number of awards of the Good Conduct Medal and the period covered by the awards. It is also incumbent upon the applicant to take action to have the VUA added to his ORB before the next scheduled promotion selection board.

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

__mvt ___ ___mm__ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089380
SUFFIX
RECON
DATE BOARDED	2003/09/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 311	131.0100
3.
4.
5.
6.