RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  1 December 2005
      DOCKET NUMBER:  AR20050010070


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Maribeth Love                 |     |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 revocation of her retirement orders,
reassignment to an active Reserve status, and promotion to lieutenant
colonel.  She also requests voiding of the Part VII – Senior Rater block
and waiver of timeliness for correction of her officer evaluation reports
(OER) dated 1 May 1995 through 30 April 1996, 1 May 1996 through 30
September 1996, 1 October 1996 through 30 September 1997, and 1 October
1997 through 30 September 1998.

2.  The applicant states that the 2004 Reserve Components Army Medical
Department (AMEDD) lieutenant colonel selection board that convened on
17 May and recessed on 10 June 2004, selected her for promotion prior to
her retirement date.  The approved selection list was not released until 2
November 2004 and her name was on the published list.  She was assigned to
the Retired Reserve effective 30 July 2004 due to non-selection for
promotion because of the above reference OER's.  She also states that prior
to her retirement, her commander had approved her request for extension of
her mandatory removal date (20 June 2004) for her to remain in the unit.

3.  She also states that she received no response to her extension request.
 Her OER correction request had been delayed because of the appeal process.
 The appeal was returned without action due to insufficient evidence
necessitating this request for correction of her records.  Those
unfavorable ratings were twice the cause of her non-selection for
promotion.  She would like those senior rater sections (Part VII) voided to
clear her record and prevent future unfavorable action.

4.  The applicant provides copies of her retirement assignment orders; her
OER Appeal memorandum with copies of OER's for the period ending 30 April
1996, 30 September 1996, 30 September 1997, 30 September 1998; her Request
for Waiver of Suspense Date OER Appeals memorandum; a response from the
Deputy Inspector General (IG), Army Human Resources Command (AHRC) – St.
Louis, Missouri; and an Extension of Mandatory Removal Date memorandum from
the Commander, Headquarters, 5501st United States Army (USA) Hospital,
AHRC; and memorandums of support from the Commander, Headquarters, 5501st
USA Hospital and the Chief, Army Nurse Corps (ANC), Headquarters, Academy
of Health Sciences, Fort Sam Houston, Texas.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was appointed in the United
States Army Reserve (USAR), ANC, as a second lieutenant effective 20 June
1984.
2.  She entered on active duty effective 31 August 1984.  She was promoted
to captain effective 1 April 1988.

3.  She was released from active duty effective 31 August 1993 and
transferred to the USAR.  She was promoted to major effective 31 March
1995.

4.  She was considered and not selected for promotion to lieutenant colonel
by the 2001, 2002 and 2003 AMEDD Reserve Components Selection Boards
(RCSB).  The reasons for her non-selections are unknown because statutory
requirements prevent disclosure of board proceedings to anyone not a member
of the board.

5.  Her Retirement Points Summary shows she completed 20 qualifying years
on 19 June 2004.

6.  She was separated from the USAR effective 30 July 2004, based on her
two non-selections and transferred to the Retired Reserve.

7.  She was considered and selected for promotion to lieutenant colonel by
the 2004 AMEDD RCSB that convened on 17 May 2004.  The President approved
the board results on 15 October and they were released on 2 November 2004.

8.  On 6 April 2004, she appealed her OER's for the periods 1 May 1995
through 30 April 1996, 1 May 1996 through 30 September 1996, 1 October 1996
through 30 September 1997, and 1 October 1997 through 30 September 1998,
based on substantive inaccuracy.  She also requested a waiver of suspense
date for her OER appeals.

9.  On 28 May 2004, the Director, Personnel Actions and Services, AHRC,
advised the applicant that the Deputy Chief of Staff for Personnel, Special
Review Board, determined that the evidence she submitted did not justify
altering or withdrawing the OER's for the periods 1 May 1995 through 30
April 1996, 1 May 1996 through 30 September 1996, 1 October 1996 through 30
September 1997, and 1 October 1997 through 30 September 1998.

10.  On 19 May 2005, the Deputy IG, AHRC, advised the applicant that a
thorough inquiry into her request for assistance was initiated.  The
inquiry revealed that she was assigned to the Retired Reserve on 30 July
2004 for being twice non-selected for promotion to lieutenant colonel.  In
accordance with Army Regulation 135-175, Separation of Officers, Chapter 4-
4 and Title 10, USC 3846, an officer in the grade of major who has
completed his/her statutory military

service obligation, will be discharged for failure to be selected for
promotion after their second consideration by a RCSB.  There are many
situations for which law or Army regulation provide Soldiers with a remedy
or means of redress.  Soldiers must first seek the remedy or means of
redress before an IG can provide assistance.  Once a Solider has used the
available redress, remedy, and appeal procedures, IG assistance is limited
to a review of the situation to determine if the Soldier was afforded due
process provided by law or regulation.  It was recommended she apply to the
Army Board for Correction of Military Records (ABCMR), as the ABCMR is the
final administrative avenue available to her within the Department of the
Army.

11.  On 24 October 2005, the Commander, Headquarters, 5501st USA Hospital,
San Antonio, Texas, recommended the applicant for a position in the 5501st
USA Hospital.

12.  On 25 October 2005, the Chief, ANC, Headquarters, Academy of Health
Sciences, Fort Sam Houston, Texas, requested favorable expeditious Board
action to revoke the applicant's retirement orders and promote her to
lieutenant colonel in accordance with the 2004 AMEDD RCSB.  She also stated
that as a qualified intensive care nurse, the applicant would be a
tremendous asset for mobilization in that specialty.

13.  In an advisory opinion, dated 22 September 2005, the Transition and
Separations Branch, AHRC, stated that the applicant was non-selected for
promotion by a promotion board but retained to complete 20 years of
qualifying service (18-year lock-in rule).  During the time she was
retained, the applicant's records remained on the Reserve Active Status
List (RASL) and were considered by each subsequent board until removal was
required.  If the removal date is within 90 days of the promotion board,
the records will no longer be considered.  The promotion board was convened
on 17 May 2004 and removal after completion of 20 years was required on 19
June 2004.  Therefore, the applicant's record should not have been
considered.  The applicant was also not eligible for retention beyond
required removal date under the provisions of Title 10, United States Code
(USC), section 14703, as an Army nurse because her status as a second non-
selection for promotion eliminated her eligibility for retention.  In view
of the foregoing, the applicant's orders for removal from an active status,
transfer to the Retired Reserve issued effective 30 July 2004 are valid
orders and should not be revoked.  Therefore, it was recommended the
applicant's request be denied.

14.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 4 November 2005.  In her rebuttal, dated
20 November 2005, the applicant stated she objected to the opinion because
the injustice was the
result of AHRC administrative mismanagement and their providing misleading
information.  The opinion completely ignored the fact her records were
considered and she was selected for promotion (fourth selection board).
She was directed by AHRC, who should have thoroughly audited her records,
to prepare her packet for a third and fourth selection board.  Her records
appeared before these selection boards and were not administratively
removed prior to the boards, during the boards, nor during the post board
scrub.  She believes both selection boards for lieutenant colonel
thoroughly reviewed her record during the selection process and thought she
was fully eligible for promotion.

15.  The rebuttal also stated that furthermore, each board president
validated and signed the board results.  AHRC had opportunities at each
step of the selection process to remove her records, if they thought her
ineligible.  The board process should have stringent controls in place that
prevent this type of misinformation, mismanagement, and injustice.  She
tried to remedy this injustice through her chain of command at every level
but failed to gain the correction.  She was selected by the promotion board
that convened on 17 May 2004.  This creates a grave injustice and an
enormous expectation for the promotion orders to be published and while
simultaneously revoking the retirement orders.  She strongly desires to
serve the Army Reserve in her specialty (66H8A, a critical wartime
shortage).

16.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve Component officers.  This regulation specifies that a
major who has failed selection for promotion to lieutenant colonel for the
second time will be removed from active Reserve status unless the officer
can be credited with 18 or more but less 20 years of qualifying service for
retired pay.  Officers retained will be transferred to the Retired Reserve
when entitled to be credited with sufficient qualifying service for retired
pay.

17.  Army Regulation 623-105, establishes the policies and procedures for
the OER system.  It provides the opportunity to request a Commander's
Inquiry or to appeal disputed reports.  It provides that an OER accepted by
Headquarters, Department of the Army (HQDA), and included in the official
record of an officer, is presumed to have been prepared by the properly
designated rating officials, and to represent the considered opinion and
objective judgment of the rating officials at the time of preparation.
Paragraph 9-7 of that regulation states that the burden of proof in an
appeal of an OER rests with the applicant.  Accordingly, to justify
deletion or amendment of an OER under the regulation, the applicant must
produce evidence that clearly and convincingly overcomes the presumptions
referred to above and, that action to correct an apparent material error or
inaccuracy is warranted.

18.  The regulation defines a referred report, among other things, as any
report with ratings or comments that, in the opinion of the senior rater,
are so derogatory that the report may have an adverse impact on the rated
officer’s career.  It specifies that such a report will be referred to the
rated officer by the senior rater for acknowledgment and comment before it
is sent to HQDA.

19.  The regulation also provides for requesting a Commander’s Inquiry in
cases when a report may be illegal, unjust, or otherwise in violation of
the regulation.  Commanders are required to look into the matter and may
then conduct an official inquiry into the matter.  The regulation provides
that, “the primary purpose of the commander’s inquiry is to provide a
greater degree of command involvement in preventing obvious injustices to
the rated officer and correcting errors before they become a matter of
permanent record.  A secondary purpose is to obtain command involvement in
clarifying errors or injustice after the OER is accepted at HQDA.”  It also
provides that, “the results of the commander’s inquiry that are forwarded
to HQDA will include findings, conclusions and recommendations in a format
that could be filed with the OER in the officer’s official military
personnel file (OMPF) for clarification purposes.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to revocation of her retirement orders,
reassignment to an active Reserve status, and promotion to lieutenant
colonel.

2.  The applicant's contentions have been noted; however, the applicant was
twice not selected for promotion to lieutenant colonel and retained to
complete 20 years of qualifying service.  During the time she was retained,
her records remained on the RASL and eligible for consideration by each
subsequent board until removal was required.  Since her removal date of 19
June 2004 was within 90 days of the 2004 AMEDD RCSB that convened on 17 May
2004, she was not eligible for consideration by that board.  Therefore,
whether she was selected or not, her consideration by that board is invalid
based on her ineligibility.  The result of the AHRC failing to remove her
records from consideration by the 2004 AMEDD based on her required removal
date is not a basis for revoking her retirement orders and reassigning her
to an active Reserve status.



3.  The applicant was appropriately transferred to the Retired Reserve upon
completion of 20 qualifying years of service and non-selections for
promotion prior to the Presidential approval date of the 2004 RCSB.  Her
contentions do not demonstrate error or injustice in the reason for her
removal from an active status and transfer to the Retired Reserve.

4.  The applicant was also not eligible for retention beyond her required
removal date under the provisions of Title 10, USC, section 14703, as an
Army nurse because her status as a second non-selection for promotion
eliminated her eligibility for retention.

5.  The applicant is not entitled to void the Part VII – Senior Rater block
of the OER's for the periods 1 May 1995 through 30 April 1996, 1 May 1996
through 30 September 1996, 1 October 1996 through 30 September 1997, and 1
October 1997 through 30 September.  She has not shown that the contested
reports contain any serious administrative deficiencies or was not prepared
in compliance with applicable regulations and policy.  The contested
reports appear to represent a fair, objective and valid appraisal of her
demonstrated performance and potential during the periods in question.

6.  The applicant has not shown the OER's to be invalid and caused her non-
selections by the 2001 and 2002 RCSB's.  The contested OER's were also seen
by the subsequent boards to include the 2004 AMEDD RCSB by which she was
selected.  The applicant’s appeal of the contested OER's to the Special
Review Board was denied based on insufficient evidence to justify altering
or withdrawing the reports.  She also has not submitted evidence to show
the reports are in error or unjust, and based on the presumption of
regularity the reports represent the considered opinion and objective
judgment of the rating officials at the time of preparation.  There appears
to be no justification for altering or withdrawing these reports from her
OMPF.

7.  The applicant failed at the time to request a Commander’s Inquiry.
This is an individual’s available right and option concerning OER’s
perceived to be unfair or unjust, and may have made a difference based on
the freshness of the rating with all involved in place, to provide a
concurrent investigation prior to the finalization of the report.  For
whatever reason(s), this is now a dated case, and the applicant has not
overcome her burden of proof to show error, injustice, or inequity.

8.  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_____  __MBL_  __RGS__  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.




                                  _____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010070                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.09                                  |
|2.                      |111.05                                  |
|3.                      |131.00                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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