RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 September 2005
      DOCKET NUMBER:   AR20040010374


      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             |
|     |Ms. Lisa O. Guion                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion reconsideration to
Lieutenant Colonel (LTC).

2.  The applicant states, in effect, he is a Command and General Staff
College (CGSC) graduate, has a Masters Degree, and was fully qualified for
promotion to LTC when he was originally considered for promotion to LTC on
5 September 2001.  He also claims Army Human Resource Command (AHRC)
Reserve Component (RC) promotion officials indicated that the lack of
Officer Evaluation Reports (OERs) was the only cause found that would have
warranted his non-selection for promotion.  He further indicates the
promotion selection board did not consider his degree, his civilian job as
Department of Defense (DOD) contractor and how his performance in that
position benefited the DOD, United States Army, and United States Army
Reserve (USAR).  He finally states the promotion selection board failed to
consider points he earned while participating and supporting Troop Program
Units (TPUs) even though he was not assigned to the TPUs.

3.  The applicant provides the following documents in support of his
request:  Memorandum of Support, dated 21 June 2004; AHRC-St. Louis E-Mail,
dated
11 May 2004; AHRC Memorandum, dated 17 May 2004; Official Military
Personnel File (OMPF) Documents, and AHRC-St. Louis Retirement Points
Printout.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that after completing 1 year, 7 months and
3 days of military service in an enlisted status in the Utah Army National
Guard (UTARNG), the applicant was appointed a second lieutenant (2LT) in
the USAR on 23 June 1983.

2.  The applicant's Officer Record Brief shows he was assigned with the
343rd Support Center, Reserve Officer Training Corps (ROTC) from 28 March
1994 to 1 December 1996, and he was promoted to major/O-5 (MAJ/O-5) on
22 June 1995.

3.  The applicant’s record also shows he was considered and not selected
for promotion to LTC by the 2001 and 2002 Reserve Component Selection
Boards (RCSBs), and that he was subsequently separated from the USAR and
transferred to the Retired Reserve on 1 August 2003.

4.  On 17 May 2004, the Chief, Office of Promotions, Reserve Components,
informed the applicant that a Special Selection Board (SSB) convened to
consider him for promotion to LTC under the 2002 criteria; however, he was
again not selected for promotion, which confirmed the decision made by the
regularly convened RCSB.  The applicant was further advised that the
specific reasons for his non-selection were not known, as selection boards
do not record their reasons for selection or non-selection.  He was also
advised that in the absence of new evidence showing that an error or
injustice existed, further consideration by a SSB was not possible.

5.  The applicant provides a Memorandum of Support, dated 21 June 2004,
from an individual who indicates that he was the S3 and Detachment
Commander of the 343rd Support Center, ROTC from 1992 to 2000.  He states,
in effect, that the applicant was a knowledgeable and proficient officer
whose dedicated efforts caused his unit to pass "both its CIP AND TAM for
two years in succession."  He also states the applicant's civilian
employment as a DOD contractor prevented him from attending scheduled
annual training (AT), and he allowed the applicant to individually meet the
AT requirements by assigning him large projects to complete.  He further
indicates the applicant's civilian position became increasingly demanding
making it virtually impossible for him to attend any AT, and this resulted
in him having to request the applicant’s reassignment to the USAR Control
Group.  He finally states the applicant's non-selection for promotion to
LTC is based on the gaps in his OER record and that consideration should be
given to the applicant's contractor position, where he performed duties
equivalent to those required of an active duty major or LTC.

6.  During the processing of this case an advisory opinion was obtained
from Chief, Special Actions Branch, Office of Promotions, RC, AHRC St.
Louis.  This RC promotion official confirmed the applicant had been
considered and not selected by the 2001 and 2002 RCSBs, and by a SSB.  He
also indicated the applicant’s civilian education requirement was waived
for the Board, and in response to a Freedom of Information Act request from
the applicant, their office provided the applicant a copy of the RCSB file
for 2002 and a copy of the SSB consideration file that reconsidered him
under the 2002 criteria due to a missing OER ending in September 2002.  The
promotion official further stated that there was a gap in the applicant’s
OER history for the period from December 1996 through 3 September 2002, and
the applicant did not complete his master’s degree until 2002, which was
after the 2001 RCSB convened.

7.  On 14 April 2005, the applicant provided his rebuttal to the AHRC St.
Louis advisory opinion.  He stated that he did not disagree with the basic
history outlined in the advisory opinion, but that he was confused about
the description given concerning his promotion packet.  He commented that
the advisory opinion indicated a gap in OER's from 1996 through 2002;
however, he had an OER ending September 2002.  The applicant further
indicates that as a DOD contractor, he supported combatant commanders in a
myriad of roles and that if he had not worked directly with the military
during his sixty eight months service in the Individual Ready Reserve
(IRR), he would not contest the decisions of the RCSBs.

8.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that promotion
reconsideration by a SSB may only be based on erroneous non-consideration
or material error, which existed in the record at the time of
consideration.  Material error in this context is one or more errors of
such a nature that, in the judgment of the reviewing official (or body), it
caused an individual’s non-selection by a promotion board and, that had
such error(s) been corrected at the time the individual was considered, a
reasonable chance would have resulted that the individual would have been
recommended for promotion.  It further stipulates that an individual who is
non-selected by a SSB may only be eligible for promotion reconsideration by
additional SSB's under another year criteria.

9.  The Reserve Officer Personnel Management Act (ROPMA), a public law
enacted by Congress on 5 October 1994, prescribed policies and procedures
to consolidate and modernize the laws governing the management of RC
officers.  ROPMA was implemented on 1 October 1996, and it established that
all mandatory promotion boards would use the best-qualified selection
criteria.  The best-qualified selection criteria would replace the fully-
qualified selection criteria used for promotion to captain through LTC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was fully qualified for promotion to
LTC since 5 September 2001 and that his position as a DOD contractor
working for the military should be considered for that promotion has been
carefully considered.  However, these factors are not sufficiently
mitigating to warrant granting the requested relief.
2.  The evidence of record confirms the applicant’s record contained all
pertinent documents related to civilian and military education when his
record was reviewed by the 2001 and 2002 promotion boards.  Further, all
OERs issued, the last ending 1 December 1996 was also reviewed.  No OER's
after 1 December 1996 were seen by the regularly convened RCSBs.  However,
the applicant received an OER ending on 2 September 2002, and this was used
as a basis for his reconsideration for promotion to LTC by a SSB using the
2002 criteria.  This SSB reconsideration also resulted in his not being
selected for promotion.

3.  Because promotion boards are not permitted to disclose the reasons for
non-selection for promotion, there is no record of why the applicant failed
to be selected for promotion to the next higher grade.  In this regard, it
must be noted that the selection boards that considered the applicant for
promotion were instructed to select only those who were considered best
qualified for promotion to the next higher grade.  Accordingly, it must be
presumed that, when reviewed by promotion boards, the applicant’s overall
records failed to meet the standards established for selection on a best-
qualified basis.  Promotion and retention is keenly competitive, and many
officers will not be selected.

4.  Implicit in the Army's promotion system is the universally accepted and
frequently discussed principle that officers have a responsibility for
their own careers.  The general requirements and workings of the system are
widely known and specific details such as RCSB dates and promotion zones
are widely published in official, quasi-official and unofficial
publications, and in official communications.  The applicant knew, or
should have known, that he would be considered by an RCSB and that he
needed to ensure, well in advance, that his record would present his career
and qualifications to that board in the best possible light.

5.  Notwithstanding the applicant’s civilian work history, in view of the
facts of this case, it appear the applicant’s promotion consideration by
the 2001 and 2002 RCSBs, and his reconsideration by a SSB using the 2002
criteria was accomplished in accordance with the governing law and
regulation.  There appears to be no error or injustice related to his non-
selection for promotion to LTC, and there is no obvious material error
basis for further his further for promotion by a SSB, or that would support
a promotion recommendation from the Board at this time.  As a result, there
is an insufficient evidentiary basis to support granting the requested
relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK __  ___BJE _  ___RTD _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ____Stanley Kelley_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010374                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/09/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/08/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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