RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 January 2006
      DOCKET NUMBER:  AR20050010479


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 his date of rank (DOR) to Major (MAJ) be
adjusted and his records placed before a special selection board (SSB) for
promotion consideration to Lieutenant Colonel (LTC).

2.  The applicant states, in effect, he was denied due course promotion to
MAJ because his company command Officer Evaluation Report (OER) was not
timely processed and he was not considered by the FY99 Major, Army
Competitive Category, Promotion Selection Board.  He was selected above the
zone by the FY00 MAJ Board and is now behind his contemporaries.  He states
that it is unfair that he was passed over because his OER file was not
complete when the FY99 MAJ Board met.  He has unsuccessfully sought to
correct this injustice.

3.  The applicant provides:

      a.  His Officer Record Brief (ORB).

      b.  A 4 July 2005 memorandum to the Board.

      c.  A 20 April 2005 memorandum to Commander, Army Human Resources
Command (HRC), Alexandria, Virginia requesting an SSB for promotion
consideration to LTC.

      d.  A timeline and MILPER Message NR. 99-068.

      e.  His company command OER for the period 19980320 – 19990319, with
DA Form 200 (Transmittal Record) showing the OER was shipped on 7 April
1999.

      f.  DA Form 638 (Recommendation for Award), dated 21 September 1999.

      g.  A 10 January 2000 memorandum (with supporting documents) to
Commander, PERSCOM requesting an SSB for promotion consideration to MAJ.

      h.  A 6 April 2000 memorandum from the Commander, PERSCOM denying the
applicant's request for an SSB.

      i.  A 14 May 2000 memorandum (with emails and supporting documents)
for the Chief, Military Intelligence Branch, with subject:  Promotion
Reconsideration.

      j.  Miscellaneous documents, including:  OER Support Form and
numerous emails.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the Officer Corps as a distinguished military
graduate from the Reserve Officer Training Corps.  Appointed a Second
Lieutenant on 24 May 1989 in Military Intelligence (MI) Branch, he entered
on active duty on 17 July 1989.  He was promoted to First Lieutenant on 17
July 1991 and to Captain on 1 February 1994.

2.  Following initial entry training, the applicant served 18 months in the
Republic of Korea as a company officer in an MI battalion.  In September
1991, he was reassigned to Fort Irwin where he served approximately 2 years
as a platoon leader and intelligence staff officer.  In July 1994, he
served 2 years in a US Coast Guard counterdrug intelligence assignment in
New York.

3.  In July 1996, the applicant was reassigned to Bad Aibling, Germany and
the 718th MI Group.  He performed duties as a communications satellite
branch chief, a senior watch officer, and from March 1998 to March 1999 he
served as an MI company commander.

4.  On 1 January 1999, the Commander, US Army Personnel Command (PERSCOM)
published MILPER MSG 99-068 announcing the zone of consideration for
promotion to Major.  The promotion zone included Captains with a DOR from 2
February 1993 to 1 February 1994.  Paragraph 3a cautioned that all OERs
must be received not later than 13 April 1999 in order to be considered by
the promotion board.

5.  The applicant's DOR to Captain was 1 February 1994, placing him in the
zone of consideration.  Upon completion of 1 year in company command, he
was given an annual OER for the period 19980320-19990319.  Both the rater
and senior rater signed the report on 6 April 1999.  A DA Form 200
(Transmittal Record) shows the OER was shipped to the Commander, PERSCOM on
7 April 1999, less than 1 week before the 13 April 1999 deadline.

6.  The Adjutant General Directorate, OER Branch, HRC-Alexandria website
clearly states the following under Frequently Asked Questions (FAQ)
concerning OER processing:  "[Question] An OER has been received today.
Does that mean it will be completed tomorrow?  [Answer] No.  It normally
takes a few
weeks for an OER without errors to process.  Processing OERs with errors
can take extensive periods.  The best way to ensure a report’s speedy
processing is make sure it arrives at HRC error-free.  Review the OER when
signing it and before submitting it."

7.  The OER was not placed in the applicant's promotion packet seen by the
promotion board.  As a result, the promotion board only reviewed 5 OERs
(all of his Lieutenant OERs had been "masked" and were not viewed).  The
following is a record of the applicant's OERs available to the FY99 Major,
Army Competitive Category, Promotion Selection Board.  Note that for the DA
Form 67-8 the rating system depicted below has six entries:  the first two
entries are derived from the rater performance and potential blocks,
expressed in numerals, with 1 the highest and 5 the lowest; the last four
entries are derived from the senior rater potential evaluation (senior
rater profile), with the third entry reflecting the applicant's block
placement (i.e. top, top two through eight, and bottom), and the fourth
through sixth entries portraying, respectively, the number of ratings
ranked above, with/equal to, and below the applicant:

     Period                    Score/                   Type of Report
   (YY/MM)             Rater/SR Profile


   9404-9504      1/1/Top/0-1-0   Annual
   9504-9604      1/1/Top/0-2-0   Annual
   9604-9704      1/1/Top/0-0-0   Annual
   9704-9709      1/1/Top/0-21-11 Closeout

In 1998, a new version of the OER was fielded.  For DA Form 67-9, the first
rating entry relates to the rater’s evaluation of performance, expressed in
numerals, with 1 the highest and 4 the lowest; the second numeral refers to
the SR’s evaluation of promotion potential on a scale of 1 to 4; and the
third rating refers to the SR’s evaluation of the applicant’s potential
compared with officers senior-rated in the same grade, stated in terms of
Above Center of Mass (ACOM), COM, or Below (BCOM):

     Period                    Score/                   Type of Report
   (YY/MM)             Rater/SR Profile


   9710-9803      1/1/COM    Change of Rater

8.  The applicant's DA Forms 67-8 all show "top block" senior ratings.
However, his first three reports reflect immature senior rater profiles
with only one or two ratings having been rendered, and his closeout DA Form
67-8 is merely a COM report.  The narratives associated with these reports
are not exceptional.  In short, these are not viewed as strong reports.

9.  The applicant's sole DA Form 67-9 considered by the promotion board is
a COM report.  While the narratives are favorable, they do not identify the
applicant as a "must promote" officer.

10.  The applicant was not selected for promotion by the FY99 Major, Army
Competitive Category, Promotion Selection Board.  However, by the time the
FY00 Major, Army Competitive Category, Promotion Selection Board convened,
the applicant's company command OER and a second one from an ROTC
assignment had been added to his OMPF.

     Period                    Score/                   Type of Report
   (YY/MM)             Rater/SR Profile


   9803-9903      1/1/ACOM   Annual
   9903-0003      1/1/ACOM   Annual

These reports were both ACOM reports with strong narratives and were the
only OER additions to a file that did not previously warrant promotion
selection.

11.  After failing to gain promotion to Major, the applicant requested an
SSB based upon an incomplete record [the missing company command OER].  The
applicant had the support of his former chain of command and his, then
current, ROTC chain of command.  On 6 April 2000, the Chief, Promotions
Branch, PERSCOM disapproved the request stating that material error was the
only justification for an SSB, and a late OER did not constitute a material
error.

12.  Army Regulation (AR) 600-8-29 (Officer Promotions) prescribes the
officer promotion function of the military personnel system.  It is linked
to AR 600–8 and provides principles of support, standards of service,
policies, tasks, rules, and steps governing all work required in the field
to support officer promotions.  It provides, in pertinent part:

    a.  OERs . . . for officers in the zone of consideration will be
    provided to promotion boards under the following conditions:  (1)
    Except as specified below, evaluation reports must be administratively
    correct
    and received in Evaluation Reports Branch, Army Human Resources Command
    by the due date identified in the selection board notice announcing the
    zone of consideration and date the board convenes.  (2) As an exception
    to (1) above, late evaluation reports, promotion reports (Code 11) and
    referred reports, if administratively correct, will be provided to the
    appropriate board upon receipt at Army Human Resources Command,
    provided the board has not completed its final, formal vote as
    specified in the MOI.  A late evaluation report is defined as any
    report, other than a "complete the record” OER, which has a “thru” date
    more than 90 days earlier than the due date established in the
    selection board notice.


    b.  An officer will not be . . . reconsidered for promotion by an SSB
    when . . . an administrative error was immaterial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not have a strong promotion file for the FY99 Major,
Army Competitive Category, Promotion Selection Board.  His company command
OER was a strong report, but it did not arrive at HQDA in sufficient time
to be included in his promotion file and he was denied promotion to Major.

2.  MILPER Message NR. 99-068 clearly stated that, in order to be
considered by the promotion board, OERs needed to be received at HQDA not
later than 13 April 1999.  The applicant's OER was transmitted from Germany
to HQDA on 7 April 1999 and was not processed in time to be included in his
promotion file.

3.  The applicant's request for promotion consideration by an SSB was
reviewed by HQDA and denied on 6 April 2000 because the circumstances
surrounding the omission of his company command OER from his promotion
packet did not constitute a material error.

4.  AR 600-8-29 does not consider the applicant's company command OER to
have been a late report thereby qualifying for an exception to policy and
referral to the promotion board after the cut-off date for submission.

5.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ji___  __wfc___  __gjp___  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 Infante
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010479                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060119                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0500                                |
|2.                      |131.1100                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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