RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060005237 


	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.


x
	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 promotion reconsideration to the rank of lieutenant colonel (LTC). 

2.  The applicant states, in effect, that he was unjustly non-selected for promotion to the rank of LTC even though his records show that he exceeded all academic and performance standards and received 98% top block ratings on his officer evaluation reports (OER).  He goes on to state that the basis of his appeal is administrative and substantive inaccuracy because in 1993 when he was non-selected, he learned months later that his OER from 1991 was not included in his performance fiche.  He further states that his branch manager should have instructed the board of the circumstances and requested a special board for him and did not do so.

3.  The applicant provides a copy of his report of separation (DD Form 214), copies of his awards of the Bronze Star Medal, the Defense Meritorious Service Medal, copies of several evaluation reports and a copy of his Officer Record Brief (ORB). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged or injustice which occurred on 30 September 1996.  The application submitted in this case is dated 7 April 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was commissioned as a United States Army Reserve (USAR) second lieutenant on 27 August 1976 and entered active duty on 15 January 1977.  He was promoted through the ranks to the rank of major on 1 December 1988.  


4.  On 30 September 1996, he was released from active duty and was transferred to the Retired List in the rank of major,  effective 1 October 1996, under the provisions of Army Regulation 600-8-24, chapter 6 and the Voluntary Early Retirement Program (VERP).  He had served 19 years, 8 months and 16 days of total active service.
 
5.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – Alexandria (HRC-Alex), Chief, Promotions Branch, which opines, in effect, that while there was no evidence that an injustice had occurred in the applicant’s case, he should not be granted promotion reconsideration due to his lack of due diligence to ensure his records were up to date and to request consideration by a Special Selection Board within 1 year from the date a board recessed.  The advisory opinion was forwarded to the applicant for comment and to date, no response has been received by the staff of the Board.   

6.  A review of the applicant’s Official Military Personnel File (OMPF) reveals that the applicant filed two unsuccessful appeals of evaluation reports to the Officer Special Review Board in 1993.

7.  In May 1994, he submitted an application to this Board to remove the senior rater’s evaluation on three OER’s and to remove a General Officer Letter of Reprimand from his OMPF.  The Board denied his request on 20 July 1994.  

8.  It is noted that at the time the Board considered his request, information was obtained from the Total Army Personnel Command (now known as HRC-Alex) which indicated that the applicant was considered but not selected for promotion to LTC by the 1993 and 1994 promotion selection boards and that his records were complete without material error when reviewed by the boards.  The Board was also advised that the applicant would be considered for active duty continuation to complete 20 years of service by a selective continuation board to be held in August 1994.  

9.  The applicant again applied to the Board to have an Academic Evaluation Report (AER) corrected to remove derogatory information and on 19 July 1995, the Board denied his request.

10.  Army Regulation 600-8-29 prescribes the policies and procedures for the promotion of officers of active duty and includes the procedures for the conduct of selection boards as well as Standby Advisory Boards (STAB).  It provides, in pertinent part, that officers who are eligible for consideration may write to the board to provide documents and information, calling attention to any matter concerning themselves that they consider important to their consideration.  It further provides that promotion boards will base their recommendations on impartial consideration of all officers in the zone of consideration and that the members will not reveal their reasons for selection or non-selection of any officer considered.  Officers who were not considered by the proper board or whose records contained material error or was missing information when they were considered, may be considered for promotion by a STAB under the same criteria as the board that was supposed to originally consider them.  Officers will not be considered by a STAB when it is determined that the administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Official Military Personnel File (OMPF).    
DISCUSSION AND CONCLUSIONS:

1.  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.

2.  While the evidence indicates the applicant has had an excellent record of service to his country, the evidence establishes no basis to second-guess the judgment of the promotion selection boards who determined that he was not the best qualified for selection when compared to his peers.  

3.  Although it is unfortunate that he was not selected for promotion, it is a well known fact that in all selections boards there are many very qualified officers who are not promoted due to the strength ceiling, which limits the numbers of eligible officers that may be selected.  Non-selection for promotion does not necessarily mean that an officer is substandard, it in many cases simply means that there are more people than there are allocations to promote.

4.  The applicant’s contentions are noted that he was non-selected for promotion because the board did not have an opportunity to view all of his evaluation reports and finds it to be without merit.  The applicant had the opportunity during both selection boards to submit a letter in his own behalf to the selection boards that would explain any concerns he felt were important for the boards to consider.  Additionally, he has provided no evidence to support that contention or any evidence to show that he requested promotion reconsideration at the time.

5.  Inasmuch as the selection boards do not reveal the basis for selection or non-selection of an officer and since all of records of the eligible officers that competed with the applicant for promotion are not available, the reasons for his non-selection cannot be determined, nor will it presumed without evidence of a convincing nature.  The available record contains no such evidence in this case and as such finds no basis to either afford the applicant promotion reconsideration by a STAB or to promote him to the rank of LTC.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 September 1999.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x ___  __x___  __x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



_____x_____
          CHAIRPERSON


INDEX

CASE ID
AR20060005237
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.131.0100
311/STAB
2.

3.

4.

5.

6.