RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      22 November 2005
      DOCKET NUMBER:  AR20050002131


      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. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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) under the 2002 criteria and that his
official military photograph be included in the promotion consideration
file (PCF).

2.  The applicant states that he mailed his official military photograph
and personal record brief and the documents were received prior to the 2002
board convening date.  These documents should have been included in the
board file but they were not because they had a date stamp of 9 July 2002
(board room date stamp).  There is; however, no "mail room" date stamp
showing receipt of the documents.  He believes the appropriate agency had
the documents in their control prior to the convening date of the board.
The documents were in the process of being sent from one office to another
and a series of mishaps caused the documents to be delivered to the
boardroom late.  The fault lies with the government and his photograph and
other documents should be included in his file for any re-look board
granted to him.  He requests that the Army Board for Correction of Military
Records (ABCMR) direct the promotions branch to include these documents in
any re-look file.  He also states that his career counselor advised him
prior to the promotion board, that all of his records had been received and
included in the board file.

3.  He also states that the Human Resources Command (HRC) St. Louis,
Missouri, advised him that his file will be presented before SSB's for the
2003 and 2004 criteria.  In addition, he anticipates that as soon as his
missing 2002 officer evaluation report is filed he will be granted a SSB
under the 2002 criteria, as well.  There remains one problem relating to
his 2002 board file.  HRC is refusing to include his official military
photograph in the board file because they claim it arrived one day after
the board met.  He disagrees with HRC and asks the ABCMR to intervene.

4.  The applicant provides no documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
United States Army Reserve (USAR), Medical Services Corps, as a second
lieutenant effective 8 June 1975 and entered on active duty the same day.
He was released from active duty effective 1 March 1977 and transferred to
the USAR Control Group (Annual Training).

2.  He was promoted to first lieutenant effective 3 June 1978 and to
captain 2 June 1982.
3.  He was appointed in the USAR, Judge Advocate General's Corps, as a
captain effective 8 September 1986.

4.  He was promoted lieutenant colonel effective 20 August 1998.

5.  He was considered and not selected for promotion to colonel by the 2002
Reserve Components Selection Board (RCSB) that convened on 8 July and
recessed on 7 August 2002.  The reasons for his non-selection are unknown
because statutory requirements prevent disclosure of board proceedings to
anyone not a member of the board.

6.  He was not considered for promotion to colonel by the 2003 RCSB and has
been scheduled for a SSB under the 2003 criteria.

7.  He was considered and not selected for promotion to colonel by the 2004
RCSB.  The reasons for his non-selection are unknown because statutory
requirements prevent disclosure of board proceedings to anyone not a member
of the board.

8.  In an advisory opinion, dated 6 July 2005, the Chief, Promotions
Branch, Office of Promotions, Reserve Components, HRC – St. Louis, stated
that a review of the applicant's records revealed he was considered by the
2002 Colonel RCSB and not selected.  The reason for non-selection is
unknown because board deliberations are not a matter of record.  However,
his 2002 board consideration file reflects he was educationally qualified.
His file also reflects awards of the Meritorious Service Medal, the Armed
Forces Reserve Medal, the Army Commendation Medal Certificate with orders,
and the Parachutist Badge.  His Unit Movement Officer Course Certificate
was also seen. His last officer evaluation report ends 2 July 2001.  Since
the board convened on 8 July 2002, any later documents received after the
board convening date are not allowed to be considered by the promotion
board.  No exceptions.  There is no officer evaluation report ending in
calendar year 2002 at this time.  If this evaluation report is ever
processed, the applicant may be considered for a SSB.  In view of the
foregoing, it was recommended the applicant's request for consideration
under the 2002 criteria be denied at this time.

9.  The opinion also stated that information revealed that the applicant
was not considered by the 2003 board and he would have a basis under the
2003 criteria. The applicant was considered by the 2004 board and again,
was non-selected.  The applicant would have a basis for re-consideration
for promotion due to two missing officer evaluation reports ending 2 July
2003 and 2 July 2004.  The applicant has been scheduled for the next
available SSB under the 2003 criteria. The applicant has been notified to
submit documents to the Office of Promotions, Reserve Components, for the
2003 criteria as long as the documents are dated prior to the original 2003
board convening date of 8 July 2003.

10.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 16 June 2005.  In the applicant's
rebuttal, dated 22 June 2005, he requested that his follow-up application,
with continuation sheet, with a full explanation of his position concerning
this matter outlined in his initial application, be accepted as his
rebuttal to the advisory opinion.

11.  In an additional rebuttal, dated 4 November 2005, the applicant stated
that he was advised that the ABCMR never received a copy of his follow-up
application that contained his side of the facts.  Shortly before the
convening date of the 2002 RCSB, he mailed a board packet containing among
other things a current photograph that should have been included in his
2002 promotion board packet.  The rule back then was anything received the
day before (and even the date of the board) would be considered timely and
presented to the board.  His packet was received at the appropriate
building at HRC several days before the board.  The folks at HRC have
stated that his packet was received late and he disagrees. The evidence
used to prove his packet was late is that the board date stamped on the
packet the day after the board met (please note that there is no mail room
stamp on the packet, only a board date stamp).  This is not evidence that
the packet was late.  Under the 2002 board rules (he understands that the
rules have since been changed to avoid circumstances such as this) his
packet was timely filed; therefore, his photograph should be presented to
the upcoming, currently scheduled SSB set to convene in December 2005.  He
further believes the ABCMR has the authority to order HRC, St. Louis,
Promotions Branch, to include his photograph in the packet that will be
presented to the SSB scheduled to convene in December 2005.

12.  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 records 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 also provides that boards are
not required to divulge the proceedings or the reason(s) for non-selection,
except where an individual is not qualified due to non-completion of
required military schooling.  Material error documents are highest military
and civilian education, award of the Silver Star or above, or missing
officer evaluation reports.
13.  Army Regulation 135-155 also specifies that the selection board will
be provided PCF's for each eligible officer.  The PCF will include the
performance portion of the official military personnel file; which contains
officer evaluation reports, academic evaluation reports, commendatory
information, and disciplinary information.  The officer being considered
will send photographs taken within the past 5 years directly to the board.

14.  Army Regulation 135-155, the former and current versions, also specify
that a copy of the officer’s records are dispatched 90 days before the
convening date of the board and officers are directed to review the records
and submit copies of missing documents and other corrections and ensure an
official photograph is included in their PCF.  Lack of notification does
not provide an independent basis to be reconsidered by a SSB.  An
administrative error was immaterial if the officer, in exercising
reasonable diligence, could have discovered the error or omission and taken
timely corrective action notifying the Commander, Office of Promotions,
AHRC – St. Louis, and providing supporting documentation.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion reconsideration to COL by a SSB under the 2002
criteria, with his official military photograph included.  He has not shown
error, injustice, or inequity for the relief he now requests.

2. The applicant's contentions have been noted; however, a review of his
promotion files revealed they contained all of his pertinent documents,
i.e., highest military education, officer evaluation reports, and the
Silver Star or higher award, when it was reviewed by the 2002 RCSB.  His
last officer evaluation report ending 2 July 2001 was also reviewed.  His
records were complete and without material error when reviewed by the 2002
promotion selection board.

3.  Since photographs are not a material error document, the applicant had
no basis for a SSB under the 2002 criteria.  Applicable regulations do not
provide for SSB consideration if an individual's official military
photograph was not included in the PCF nor processed in a timely manner for
inclusion in the file.  His contentions do not demonstrate error or
injustice in the reason for the denial of request for reconsideration under
the 2002 criteria, nor error or injustice in the disposition of his case
based on a missing photograph.

4.  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 colonel by the 2002 RCSB.  Promotion and
retention is keenly competitive, and many officers will not be selected.
5.  A review of the applicant's record revealed that there was no officer
evaluation report ending in calendar year 2002.  If this evaluation report
is ever processed, he would then have a basis for reconsideration by a SSB
under the 2002 criteria. The applicant was not selected for promotion to
colonel by the 2004 RCSB.  A review of his records revealed two officer
evaluation reports ending 2 July 2003 and 2 July 2004 were not seen by the
board.  If the applicant can provide copies of these evaluation reports,
then he would have a basis for reconsideration under the 2004 criteria and
may reapply for consideration by a duly constituted selection board under
the 2002 and/or 2004 criteria.

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

__JRS___  ___ENA__  __TAP _  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.




                                  _____Thomas Pagan______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002131                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/22                              |
|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.                      |                                        |


-----------------------
[pic]