RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 24, 2004
         DOCKET NUMBER: AR2003091729


         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. Raymond V. O’Connor		Chairperson
Mr. Lawrence Foster		Member
Ms. Margaret V. Thompson		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests reconsideration of his previous request for removal of his nonselection to major in 1997.

2. The applicant states that it was his contention that all evidence at his disposal suggested that his first selection board for consideration for promotion to major would be March 1998, and not March 1997. He was informed by various sources, including the State's Officer Personnel Branch that this was the case. The applicant states that his delay in resubmitting his request for reconsideration is based on his difficulties in attaining copies of the 1997 through 1999 National Guard Bureau Captain to Major, Reserve Component Officer Eligible for Promotion Consideration – by State.

3. The applicant provides a large number of documents, amongst which are the listings that he refers to in the paragraph above and statements from a senior noncommissioned officer and a field grade officer who state that they were told by officials in the Office of the Adjutant General, State of Texas, that he would not be considered for promotion until the following year. The two individuals were key members in the individual's unit's personnel system.

CONSIDERATION OF EVIDENCE:

1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999019643 on 28 July 1999.

2. The applicant secured and now submits copies of listings of officers in the rank of captain who were, "eligible for promotion consideration." Listings that the applicant provided are dated, "As of: 96/09/15 (15 September 1996); 97/05/16 (16 May 1997); and 99/05/16 (16 May 1999).

3. The listings were provided to the applicant under the Freedom of Information Act. Sensitive personal information has largely been redacted. All names and service numbers and dates of birth were redacted from the 1996 listing; however, all Armor Branch officers were looked at critically to determine if any had a date of rank (DOR) of 26 March 1991, the applicant's DOR. None was found.

4. The applicant's name and other identifying information appear on the listings for 1998 and 1999. His information was not redacted from these listings.

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5. The senior noncommissioned officer, the personnel sergeant, who submitted a statement in support of the applicant's request for reconsideration, said it was he who gave the applicant the DA Selection Board Packet in November 1996. The applicant questioned his eligibility for consideration. The senior NCO then inquired about the applicant's eligibility for promotion consideration of others at higher headquarters. A determination was made that the applicant would not be considered until the following year (1998).

6. The field grade officer who at that time was serving as the battalion S-1 (Adjutant) states that the applicant queried him with the same concern as stated in the paragraph above. This field grade officer also inquired of the POC (point of contact) listed on the "packet" to determine if it was an oversight or if indeed, the applicant was in the zone of consideration. He states that the POC told him to disregard the "packet", that it had been sent in error. The field grade officer states that the issue of whether the applicant was or was not required to submit a promotion "packet" went on for a couple of months. Finally a representative in the office of the State Adjutant General's Office stated that the applicant would be required to submit a "packet" for the following year (1998).

7. The 1997 Reserve Components Selection Board (RCBS) was convened on 11 March 1997. The applicant was not selected for promotion.

8. The Chief, Office of Promotions, Reserve Components, US Total Army Personnel Command, notified the applicant, through the Adjutant General of the State of Texas, that he was considered, but not selected, for promotion to major, by Memorandum, Subject: Notification of Promotion Status, dated 6 June 1997. The Chief, Officer Personnel Division, addressed the notification to him through the Commander, Headquarters and Headquarters Company, 49th Armored Division, on 5 November 1997. This endorsement also notified the applicant that the next scheduled board for promotion to major would convene on 9 March 1998 and that it was imperative that he examine his records and correct any deficiency, which might have resulted in his first non-selection.

9. Army Regulation 135-155 prescribes the policies for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the US Army Reserve (USAR). This regulation also covers promotion eligibility and qualification requirements.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s received a "packet" for his review before the convene date of the 1997 Reserve Components Selection Board.

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2. The applicant questioned whether he indeed was in the zone of eligibility for promotion consideration to major or if he had received this "packet" in error. These questions were directed to a representative in the Army's personnel system that had a responsibility for getting answers for the applicant and in helping him to make sure his file was ready for presentation to the promotion selection board.

3. The answers that the representative, referred to in the paragraph above, received came from a personnel representative at the State Adjutant General's Office. When it was determined at that headquarters that the applicant would not be considered for promotion consideration until the following year (1998), the "packet" was not submitted.

4. When the promotion selection board was convened, the applicant had not submitted a promotion "packet" so it could represent him before that board. His promotion chances were severely diminished based on this act.

5. It is apparent that the applicant's name was not on the listing of those officers who were to be considered for promotion to major by the 1997 Reserve Components Selection Board. It is also apparent from the statements that were submitted in support of the applicant, that officials in the personnel system were also confused over whether the applicant was to be considered for promotion to major or not. When a determination of his eligibility for consideration was made, he was informed and he came to rely on their advice and guidance. This reliance on the advice and guidance given by these representatives put him at a severe disadvantaged in the promotion selection process.

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

BOARD VOTE:

mvt_____ lf ______ rvo______ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR1999019643, dated 28 July 1999. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the record of his nonselection to major in 1997.

2. That following administrative implementation of the foregoing, his records be submitted to duly constituted SSB’s as appropriate.

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

4. That if the applicant was separated because of his non-selection, his records be further corrected to show that:

         a. his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve;

         b. an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         c. all documents related to his now-voided non-selection for promotion, and his discharge or transfer be expunged from his official military records.

5. That if not selected, the applicant be so notified.





                  ___Raymond V. O’Connor___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091729
SUFFIX
RECON
DATE BOARDED	20040224
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.