PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 September 2003
         DOCKET NUMBER: AR2003090034


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, promotion reconsideration under Fiscal Year (FY) 2003 criteria for promotion to major in the Medical Service (MS) Corps.

3. The applicant states, in effect, that two of his officer evaluations reports (OER) that he received while he was a First Lieutenant (Promotable (1LT(P)) serving in a Captain position were filed in the restricted part of his Official Military Personnel File (OMPF) rather than the performance part of his OMPF. This was a significant material error and placed him at a substantial disadvantage for promotion consideration. In addition to this, the microfiche containing copies of all his performance, education, and training and commendable data provided to the promotion board was not legible.

4. In support of his request, the applicant submitted a copy of his microfiche record which contains copies of all his OER, record of education and training, and commendatory data provided to the promotion board; a copy of the two OERs that were filed in the restricted rather than in the performance part of his OMPF; a copy of a DAPE-MPC-S, Memorandum, Subject: Request for Promotion Reconsideration, dated 10 April 2003; and a copy of a Fact Sheet whose purpose is to provide information concerning special selection boards for promotion reconsideration when records contain a material error.

5. The FY03, Major, Medical Service Corps Promotion Selection Board that convened on 1 October 2002 and adjourned on 11 October 2002 considered the applicant for promotion. He was non-selected for promotion. The applicant was in the Promotion Zone (PZ).

6. On 30 January 2003, the applicant sent an e-Mail, Subject: 1LT(P) OER, to the officers' records branch. In this e-Mail message, he indicated that AKO (Army Knowledge Online) had provided instructions to contact this officer records branch about his 1LT(P) OER filed in his restricted file. In the reply from the officer records branch made on 4 February 2003, the applicant was advised that the 1LT(P) OER had been moved to the performance section of his OMPF.

7. On 4 February 2003, the applicant replied to the officer records branch that he had submitted a packet, on 3 February 2003, requesting reconsideration for promotion to major by the next available special selection board. He mentioned in the e-Mail message that, "It needs to be noted to the special board what 1LT(P) OERs were erroneously in my restricted potion of my OMPF at the time of the 1-10 OCT 02 promotion board so the special board understands that there is grounds for a re-look since this may have very likely caused an adverse decision by the Oct 02 board."

8. In DAPE-MPC-S, Memorandum, Subject: Request for Promotion Reconsideration, dated 10 April 2003, the President, Special Review Boards,

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advised the Chief, Promotions Branch, that OERs for the periods 960730 (30 July 1996) thru 970613 (13 June 1997) and 970614 (14 June 1997) thru 970930 (30 September 1997) were missing from the applicant's promotion file and therefore, this constituted a material error.

9. The applicant provided a copy of the microfiche record, which he alleges was provided to the promotion board. The "Run Date" on this microfiche record is 30 August 2002.

10. A microfiche record containing essentially the same data with a "Run Date" of 7 May 2003 was prepared and provided to this Board for use in arriving at a determination in this case, is clear, legible, and contains the previously omitted/misfiled OER. The OER in question appear in the appropriate sequence.

11. Based upon review of the applicant’s records by the President, Special Review Boards, a decision was made that promotion consideration was not warranted as a result of the two missing OER and a Certificate of Completion from CAS3 being added to and correctly filed in his OMPF.

12. In the Fact Sheet whose purpose it is to provide information concerning special selection boards for promotion reconsideration, states that promotion reconsideration is approved for nonselected officers whose records contain material error when it is considered by a promotion board.

13. The above referred to fact sheet defines a 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 officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.

14. The fact sheet provides examples of requests that may warrant reconsideration. Included among the examples is, "when one or more evaluation reports that should have been seen by a promotion board were missing from the OMPF."

CONCLUSIONS:

1. The applicant’s records were considered for promotion to major; however, the records contained material error in that two OER were misfiled in his OMPF.

2. The microfiche record provided by the applicant, which he alleges, was provided to the promotion board, is illegible and does not appear to have the two OERs in question shown on it.
3. The microfiche record containing essentially the same data with a "Run Date" of 7 May 2003 which was prepared and provided to this Board is clear, legible and contains the previously omitted/misfiled OER. These OER appear in the appropriate sequence.

4. Because the two OER, prepared to document his performance while he was a 1LT(P) were misfiled, and because the microfiche record allegedly used by the promotion board was illegible, the applicant was placed at a substantial disadvantage for promotion consideration.

5. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all Department of the Army records related to this case be corrected by submitting the records of the individual concerned to a duly constituted special selection board as deemed appropriate for promotion consideration for major under FY 2003 criteria.

2. That if selected, his records be further corrected by showing he was promoted to major on the date he attained promotion eligibility, as determined by appropriate Departmental officials, using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

3. That if not selected for promotion to major under FY 2003 criteria, that the applicant be so notified.

BOARD VOTE:

__sk ____ ___jtm __ ___cjp __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Stanley Kelley _____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090034
SUFFIX
RECON
DATE BOARDED	2003/09/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 320	131.1000
3.
4.
5.
6.