RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 September 2005
      DOCKET NUMBER:   AR20040011681


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 colonel
by a special selection board (SSB).

2.  The applicant states that his last 4 officer evaluation reports and his
Master's degree were omitted from the promotion package.  He also states
that his DA Form 2-1 (Personnel Qualification Record) was not updated.

3.  The applicant provides copies of his Master's degree, his Command and
General Staff Officer Course diploma, his OER's for the periods ending
14 March 1999, 14 March 2000, 14 March 2001, 14 March 2002, his DA Form 2-
1, his Memorandum of Input to the Department of the Army Selection Board,
his Office of Promotions, Reserve Components, St. Louis, Missouri response
to his DD Form 149 (Application for Correction of Military Record)
regarding consideration by a SSB, and his Biographical Summary.

CONSIDERATION OF EVIDENCE:

1. The applicant's military records show that he was appointed in the
Puerto Rico Army National Guard (PRARNG) as a second lieutenant effective 7
June 1975.  He was promoted to lieutenant colonel effective 15 May 1995.

2.  His records show he was considered and not selected for promotion to
colonel by the 2000, 2001, and 2002 Reserve Components Selection Boards
(RCSB).

3.  On 4 December 2002, he submitted a DD Form 149 (Application for
Correction of Military Records) and requested reconsideration for promotion
to colonel by a SSB based on the fact that his last 2 OER's and his
Master's degree were omitted from the promotion package.

4.  On 6 June 2003, the Office of Promotions, Reserve Components, St.
Louis, advised him in a reply to his DD Form 149, that a review of his
board consideration file revealed that the OER's for the periods ending 14
March 2001 and 2 April 2002 [sic] were seen by the board as hard copies.
His Master's degree was shown on his Biographical Summary, which was also
seen by the board.  The board saw a DA Form 2-1 and the copy he furnished
was identical to that form other than the review date.  However, the DA
Form 2-1 is not a critical element.  Therefore, he did not have a basis for
consideration under the 2002 criteria.

5.  The Office of Promotions, Reserve Components, St. Louis, also advised
him that based on a review of his board files for 1999, 2000, and 2001, it
was determined that the OER for the period ending 14 March 2001 was not
seen by the 2001 board.  Therefore, he had a basis for consideration by a
SSB under the 2001 criteria.  His record had been scheduled for the SSB
that would recess on 3 October 2003.  The President must approve all board
results and that was currently taking 4 to 6 months and he would be advised
of the results by mail.

6.  He was separated from the PRARNG as a lieutenant colonel effective 30
June 2003 and was transferred to the Retired Reserve.

7.  On 23 December 2004, the Office of Promotions, Reserve Components, St.
Louis, advised him that he was considered for promotion to colonel by a SSB
under 2001 criteria and not selected.  The specific reasons for his non-
selection were not known, as selection board 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.

8.  On 1 March 2005, the Office of Promotions, Reserve Components, St.
Louis, advised the Chief, Army Review Boards Agency, St. Louis, Missouri,
that the applicant was considered for promotion to colonel by the 2004 SSB
under the 2001 criteria and not selected.  The applicant was advised of
this decision by memorandum dated 23 December 2004.  It should be noted
that the memorandum was not returned by postal authorities as
undeliverable.

9.  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.  The regulation further specifies that only
critical elements are a basis for consideration by a SSB.  Critical
elements are military education, OER's and the Silver Star or higher award.
 Civilian education is also a critical element but only for officers
commissioned after 1 October 1995.

10.  Army Regulation 135-155 also specifies 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.
DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion reconsideration to colonel by a SSB.  He has not
shown error, injustice, or inequity for the relief he now requests.

2.  The applicant was advised on 23 December 2004 that a review of his
board consideration file revealed that the OER's for the period ending 14
March 2001 and 2 April 2002 were seen by the 2002 RCSB as hard copies.  His
Master's degree and DA Form 2-1 were also seen by the 2002 RCSB.
Therefore, his records were complete and without material error when
reviewed by the 2002 RCSB and he did not have a basis for consideration
under the 2002 criteria.

3.  The applicant was further advised that his OER for the period ending
14 March 2001 was not seen by the 2001 RCSB.  Therefore, he had a basis for
consideration by a SSB under the 2001 criteria.  He was considered and not
selected for promotion to colonel by a SSB under the 2001 criteria.

4.  The applicant's records were complete and without material error when
reviewed by the SSB under the 2001 criteria.  All critical elements, i.e.,
highest military education, OER's, and the Silver Star or higher award,
were seen.  Therefore, he does not have a basis for promotion
reconsideration by a SSB under the 2001 criteria.   Applicable regulations
do not provide for additional SSB's if an individual is non-selected unless
under another year criteria.

5.  Because SSB's 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 by the SSB to colonel.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jtm___  ____wdp  ____ljo___  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.




            _________William D. Powers_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011681                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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