RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	3 April 2007  
	DOCKET NUMBER:  AR20060011579 


	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.  


	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:

The applicant's requests and statements are provided through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, retroactive promotion of the applicant to colonel or promotion consideration/reconsideration to colonel by special selection boards (SSB) under the 2002, 2003, and 2004 year criteria.

2.  Counsel states, in effect, the applicant's officer evaluation report (OER) for the period ending 31 August 2002 was erroneously excluded from his promotion packet.  He also states that the applicant requested a SSB on 29 January 2006.  In response, the Human Resources Command (HRC), St. Louis, Missouri, noted that the applicant had reached his mandatory removal date, was no longer on active duty, and was not entitled to a SSB.  In other words, the HRC found that the Army denied the applicant his right to be promoted, by failing to include his final OER and that, as such he had to be removed from active duty.  This removal thus meant the applicant could not be retroactively considered for promotion.  Such circuitous logic is difficult to follow, never mind accept.

3.  Counsel also states that the failure of the Army to include the missing OER in the applicant's file was through no fault of the applicant.  As noted by the attached Department of the Army Inspector General (DAIG) enclosure, there was a systemic, constant problem with OERs within the South Carolina Army National Guard (SCARNG).  The OER for the period in question was due to the SCARNG on 31 December 2002, but was not signed until 16 August 2003, and did not arrive at the ANRG-Reserve Components until 28 August 2003.  This was 8 months later, and 1 month after the colonel promotion board convened.  The missing OER was exceptional and indicated that the applicant did an exceptional job as a battalion commander.  There can be little doubt that had this OER been seen by the board, the applicant would have been promoted to colonel.

4.  Counsel further states that the position HRC takes in this matter is simply untenable.  While agreeing that the OER in question was omitted and while seemingly admitting that this omission likely denied the applicant an opportunity for promotion, the HRC then stated that since the applicant was non-selected, and required to retire, the applicant was no longer eligible for a SSB.  No regulatory authority is provided for this position.  The simple fact is that the applicant would not have retired had the SCARNG simply processed his OER.  The applicant would have been promoted to colonel and would still be serving.  The SCARNG should not be able to benefit from their nonfeasance.  Instead, the applicant is caught in a nightmare of a "Catch-22" scenario.
5.  Counsel provides copies of the applicant's affidavit; the applicant's request to HRC for a SSB; a letter from the HRC, Chief, Special Actions Branch, Office of Promotions, Reserve Components; letters from the DAIG to the applicant; and a US Army IG Report of Investigation, in support of the applicant's application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States Army Reserve, in pay grade E-1, effective 1 September 1970.

2.  The applicant was appointed in the SCARNG, Military Police Corps, as a second lieutenant, effective 21 May 1977.  He was promoted to first lieutenant effective 20 May 1980.

3.  The applicant was extended Federal Recognition and promoted to major effective 20 June 1993.  He was extended Federal Recognition and promoted to lieutenant colonel effective 30 August 1999.

4.  The Secretary of the Army established the promotion zone for the 2002 Colonel Reserve Components Selection Board (RCSB) that convened on 8 July and recessed on 7 August 2002, for officers with dates of rank for lieutenant colonel of 28 February 1999 and earlier.

5.  The applicant was ordered to active duty in support of Operation Noble Eagle and entered on active duty effective 30 January 2003.

6.  The Secretary of the Army established the promotion zone for the 2003 Colonel RCSB that convened on 8 July and recessed on 8 August 2003, for officers with dates of rank for lieutenant colonel of 31 March 2000 and earlier.

7.  The applicant was considered and not selected for promotion to colonel by the 2003 and 2004 RCSB's.  The reason(s) for his non-selections were not divulged.

8.  The applicant was released from active duty effective 10 August 2004 and transferred to a SCARNG unit.

9.  Based on the completion of the required maximum 5 years maximum time in grade, his promotion eligibility date (PED) for colonel was 29 August 2004.

10.  The applicant was separated from the SCARNG, as a lieutenant colonel, effective 30 April 2005 and transferred to the Retired Reserve.

11.  The applicant's ARNG Current Annual Statement, dated 27 July 2005, shows he was credited with 34 qualifying years of service.

12.  In a letter dated 20 December 2005, the DAIG, Investigations Division, advised the applicant that the USA Army IG Agency had concluded an investigation of his allegations against The Adjutant General, SCARNG.  It was concluded that TAG had failed to complete OERs on him in a timely manner.

13.  In a letter dated, 20 January 2006, the DAIG, Deputy Legal Advisor, in response to the applicant's FOIA request, provided him a copy of their Report of Investigation.

14.  On an unknown date the applicant requested promotion consideration by a SSB due to material error through the Office of Promotions, HRC.  The applicant stated that the mandatory 2002, 2003, and 2004 boards were unable to consider his latest OERs through no fault of his own.  The subject OERs were completed in a timely manner for inclusion in his records but through administrative error or oversight were not placed in his record for review by the selection boards.  The applicant stated, in effect, the OERs for the periods ending 31 December 2000, 31 August 2002, and 31 August 2003 were not seen.

15.  In a letter, dated 19 April 2006, the Chief, Special Actions Branch, Office of Promotions, Reserve Components, HRC, in response to the applicant's request, stated the zone of consideration for the 2001 colonel promotion board was for lieutenant colonels whose dates of rank was 31 January 1998, and earlier; the zone of consideration for the 2002 colonel promotion board was for lieutenant colonel whose date of rank was 28 February 1999 and earlier.  Based on his promotion orders to lieutenant colonel, his date of rank was 30 August 1999.  Therefore, he was not in the zone of consideration for either the 2001 nor the 2002 board.  

16.  The letter also stated that the zone of consideration for the 2003 colonel promotion board was for lieutenant colonels whose dates of rank were 31 March 2000 and earlier.  This was the earliest selection board he was eligible to be seen by.  He was considered, but non-selected for promotion by the 2003 board. The reason for the non-selection was unknown because board deliberations are not a matter of record.  After a thorough review of his file, it was determined that an OER ending 31 August 2002 was not seen by the 2003 board.  Therefore, he was identified to the next available SSB for reconsideration under the 2003 year criteria.  

17.  The letter further stated that his 2004 board consideration file was complete. Since his mandatory removal date was 31 May 2005, he was not considered by any further promotion boards.  If for any reason, his OERs are appealed and/or corrected, he could re-submit his request for a SSB if he felt it was warranted and the Office of Promotions would review his case.  

18.  A staff member of the Office of Promotions, HRC, St. Louis, verified that the applicant was considered by a SSB that convened on 4 August 2006.  He was selected for promotion to colonel under the 2003 year criteria.  His promotion has not been finalized.

19.  Army Regulation 135-155, prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that promotion consideration/reconsideration by a standby advisory board 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 standby advisory board.  Critical elements are military education, officer evaluation reports, and the Silver Star or higher award.  

20.  Army Regulation 135-155, specifies that promotion from lieutenant colonel to colonel required completion of 5 years maximum time in grade in the lower grade.  To be eligible for consideration for promotion to the next higher grade, an officer must be in an active status and meet the service requirements.  This regulation further specifies that the Secretary of the Army or his or her designee will establish the zone of consideration for each mandatory promotion board for commissioned officers.  

21.  Army Regulation 135-155, further specifies that lieutenant colonels who have failed selection for promotion to colonel a second time will be removed from active status unless continued under Title 10, United States Code 14701, 14702 or 14703, or can be credited with 18 or more but less than 20 qualifying years of service for retired pay.

22.  Army Regulation 135-155 also states that to be eligible for consideration for promotion to the next higher grade, an ARNG or Reserve officer must have 

continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (or a combination of both) during the 1-year period ending on the convening date of the promotion board.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to retroactive promotion to colonel or promotion consideration/reconsideration to colonel under the 2002 and 2004 year criteria.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant was promoted to lieutenant colonel with a promotion effective date and date of rank of 30 August 1999.  Based on the established zone of consideration for the 2002 RCSB and the applicant's date of rank for lieutenant colonel, he was not eligible for consideration for promotion to colonel by that board.

3.  The applicant's and counsel's contention that an OER was missing from his file when it was considered by the 2003 promotion board has been noted.  However, after a thorough review of his file, it was determined that his OER ending 31 August 2002 was not seen by the 2003 RCSB.  He was considered and selected for promotion to colonel by a SSB that convened on 4 August 2006. Final processing of that promotion is being handled by the Office of Promotions, HRC, St. Louis.

4.  The applicant’s and counsel's contention that an OER was missing from his file when it was considered by the 2004 promotion board has been noted.  However, a review of his file revealed that his 2004 board consideration file was complete.  Therefore, his records did not contain material error when reviewed by the 2004 RCSB, which does not mandate promotion reconsideration.  In this regard, it is not disputed that he may have had a competitive record, however, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process for a promotion board to determine an individual's potential and ability to perform at the higher grade, and the needs of the service.

5.  There is no indication that the applicant’s non-selection to colonel in 2004 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, based on the available evidence, it cannot determine why he was not selected for promotion.  Without evidence to show otherwise, it is concluded that the applicant was properly considered for promotion.

6.  It is also noted that the applicant was discharged from the SCARNG effective 30 April 2005 and transferred to the Retired Reserve.  Therefore, he was not entitled to consideration by any further promotion boards after that date as he was not in an active Reserve status.  

7.  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

___SP___  ___JI___  ___QAS _  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
AR20060011579
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.01
2.
131.05
3.

4.

5.

6.