RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      26 September 2006
      DOCKET NUMBER:  AR20060001615


      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:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 request, in effect, promotion reconsideration to colonel,
as an Individual Ready Reserve (IRR) officer, by a special selection board
(SSB), under the 2005 year criteria.

2.  The applicant states in his request to the Human Resources Command
(HRC), St. Louis, Missouri, he cited two specific errors, one of which is
the primary basis for his request for relief.  While he remains firm that
both errors cited in his request to the HRC caused and magnified
unnecessary discrimination in his promotion consideration file (PCF).  The
over-riding discriminator occurred when he was considered for promotion to
colonel in a status category other than the category he was in the IRR.
Based on current Army policy and the policy at the time of the board, a
Reserve Component (RC) officer on extended active duty (EAD) is considered
for management purposes (to include board) as IRR.  It is his contention,
that being considered from the incorrect service component category gave
him a less than equitable opportunity for promotion that those recommended
for promotion who were selected from the proper categories.

3.  The applicant also states that beginning with the 2005 boards, the Army
implemented a promotion selection policy change for RC officer personnel.
This was the first year the Army Reserve, Active Guard Reserve (AGR), and
National Guard officers were to be considered in three separate status
categories vice "all in one".  Promotion allotments in the Army Reserve,
Non-AGR category, was further broken into sub-categories (status):  troop
program unit (TPU), Individual Mobilization Augmentee (IMA), and lastly the
IRR.  Each sub-category received a proportion (allocation) of the total Non-
AGR category promotions.  The Chief of the Army Reserve, has stated that
being considered in a category other than the one assigned, sets false
expectations about the opportunity for promotion.

4.  The applicant further states that once the board completes the PCF
voting, affirmative action and component allocation application occurs.
When applying the promotion allocations to service components and
affirmative action, any person incorrectly considered, be it in service
component or ethnicity, receives even less of a chance of being promoted
than a person considered in the appropriate category to which special
criteria is applied.  To have had an equitable opportunity for promotion
with his peers, he would have had to been considered in the same category
as all other eligible officers on EAD status. Instead, he was considered as
a TPU officer.



5.  The applicant provides copies of his officer record briefs (ORB) dated
1 and 23 June 2005; a memorandum from the Chief, Army Reserve; selection
statistics by component and branch for the 2005 Army Reserve Non-AGR
Selection Board; his IRR assignment orders, his mailing track and confirm
receipt; his electronic mail (email) correspondence pertaining to his board
documents and official photograph; his officer evaluation report (OER)
misfire electronic mail (email) notification; his request for a SSB, his
response from the Chief, Promotions, Branch, Office of Promotions, Reserve
Components, HRC, St. Louis; articles from "Citizen Soldier" and
Adversity.Net; excerpts of Army Regulations 135-155 and 140-185, in support
of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United
States Army Reserve (USAR), as a second lieutenant, effective 11 December
1981.

2.  He was appointed in the Georgia Army National Guard (GAARNG), as a
second lieutenant effective 15 December 1981.  He was separated from the
GAARNG effective 26 July 1983 and transferred to the USAR Control Group
(Reinforcement).  He was promoted to first lieutenant effective 11 December
1984.

3.  He was promoted to lieutenant colonel effective 18 February 2001.

4.  He was ordered to active duty in support of Operation Enduring Freedom
effective 8 March 2001.

5.  He was considered and not selected for promotion to colonel by the 2004
and 2005 Reserve Components Selection Boards (RSCB).

6.  He was released from active duty effective 1 May 2005 and transferred
to the 81st Regional Readiness Command.

7.  He was voluntarily reassigned to the IRR for contingency operation EAD,
effective 1 May 2005.

8.  He was ordered to AD effective 2 May 2005 in accordance with the
Contingency Operations EAD Program for 2 years.

9.  In a memorandum, dated 20 November 2005, the applicant requested
consideration by a SSB for promotion to colonel in accordance with Army
Regulation 135-155, paragraph 3-21.  He states that two material
administrative errors occurred and in his opinion, together were
substantial enough to cause his non-selection by the 2005 promotion board.


10.  In his response, dated 21 December 2005, the Chief, Promotions Branch,
Office of Promotions, Reserve Components, HRC, St. Louis, advised the
applicant that he was considered and not selected by the 2004 and 2005
RCSBs. The reason for his non-selection was unknown because board
deliberations are not a matter of record.  A review of his 2004 board
consideration file revealed his file was complete; therefore, there was no
basis for a SSB.  His 2005 board consideration file considered him as a
mobilized active duty officer, not as a TPU officer, and it also reflected
he had reviewed his file via the two-times the citizen web site prior to
the convening date of the board.  The most recent ORB, dated 23 June 2005,
even though incorrect, was seen by the board.  It was dated after the 1
June 2005 ORB that was correct.  Hence, his 2005 board consideration file
did not reveal any material error documents missing and in accordance with
Army Regulation 135-155, SSBs are granted only when there are material
(critical) error documents missing from the board consideration file.
Material error documents are awards of a Silver Star or above, highest
qualifying missing civilian or military education, and missing OERs.  He
advised the applicant that he did not have a basis for a SSB.

11.  In a memorandum for AGR captains eligible for the 6 March 2005 major
promotion board, dated 25 February 2005, the Chief, Army Reserve, stated
that the Assistant Secretary of the Army (Manpower and Reserve Affairs)
recently approved a change in promotion policy that created three new
competitive categories:  Army Reserve (AR), Non-AGR, AR AGR and ARNG, for
officers previously considered under the single Army Promotion List (APL)
competitive category.  This change will enable RC mandatory promotion
boards to select officers based upon unique AR and ARNG Selected Reserve
(SELRES) force structure requirements.  It will lead to greater efficiency
and effectiveness in meeting manning requirements in all categories of the
SELRES and provide greater predictability and equity among all considered
officers.  Implementation of the new competitive categories for APL
officers would begin with the March 2005 Major APL Promotion Board.

12.  In email correspondence, dated 5 July 2005, the applicant was advised
that his promotion consideration file had been updated to include his DA 2-
1 (Promotion Qualification Record) and the ORB would be deleted.

13.  The applicant submits a copy of an article from "Citizen Soldier",
dated 3 January 2006, that stated that the DC District Courts held race and
gender preferences in military promotion unconstitutional.  The article
stated, in effect, that in 1993, the services instituted a policy of racial
and gender preferences in military promotion.  The policy required members
of promotion boards to guess whether the performance documented in
evaluations of minority and female officer was somehow tainted by
discrimination.  The policy also ordered promotion boards to meet quotas
based on racial and gender classifications by reselecting officers and
revoting if initial board results did not meet the quotas.  A federal trial
court recently issued an opinion holding that the policy as articulated in
the written orders in an Army Judge Advocate General lieutenant colonel's
promotion board violated the Constitution.  The Army could still avoid
liability in the officer's particular case by showing it would not have
promoted him even if it had not used the discriminatory policy.  This would
be difficult for the Army to do, since it destroys the records for
promotion boards after results are officially issued.

14.  The applicant also submits an article from Adversity.net, referencing
officers challenging the affirmative action policy.  The article states
that the Army's affirmative action promotion policy had taken another hit
in federal court with four field-grade officers challenging the legality of
"equal opportunity" instructions used by basic-branch colonels and
lieutenant colonels board over the past decade.

15.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  Paragraph 4-4b (Entry on active duty during
promotion consideration) specifies that an officer who is not on the active
duty list (ADL) and who is ordered to AD in time of war or national
emergency may, if eligible, be considered for promotion by a mandatory
Reserve of the Army selection board or a SSB for not more than 2 years from
the date the officer is ordered to AD unless the President suspends the
operation of Title 10, United States Code, Section 14317(e).

16.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that promotion
consideration or 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 based on material error.  Critical elements are military education,
OER's and the Silver Star or higher award.
17.  This regulation further provides that 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 Headquarters, Department of the Army, with supporting
documentation.

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 under the 2005
year criteria.  He has not shown error, injustice, or inequity for the
relief he now requests.

2.  The applicant's contentions have been noted; however, he has not shown
that the change in promotion policy creating three new competitive
categories and his consideration for promotion in a status category other
than as an IRR officer caused his non-selection for promotion by the 2005
RCSB.  A review of his 2005 promotion consideration file revealed that he
was considered as a mobilized AD officer, which he was at the time.

3.  There is no indication that the applicant’s non-selection to colonel by
the 2005 RCSB was unjust or inequitable.  There is no evidence of record
that shows that his non-selection was contrary to law.  Promotion boards do
not divulge the proceedings or reasons for non-selection, and this Board
cannot determine why he was not selected for promotion.  Without evidence
to show otherwise, the Board concludes that the applicant was properly
considered for promotion.

4.  Although through settlement agreement before the U. S. District Court,
others were granted relief for reconsideration for promotion based on the
Army's affirmative action promotion policy, it is noted those decisions
operated only as the law of those particular boards.  He has not shown
error or injustice in his case based on his references.

5.  Based on the foregoing facts and conclusions, the Board concludes that
the applicant has not provided evidence that the conduct or the results of
the 2005 promotion selection board was flawed or otherwise improper.  The
Board also concludes that the applicant did not present convincing evidence
of a material error in his file at the time he was not selected for
promotion by the 2005 promotion selection board.  Therefore, there is no
basis for submitting the applicant’s records to a SSB.

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

__T_____  ___EM___  _CD____  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.




                                  _____Marla J. N. Troup_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001615                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|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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