RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011839 


	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:

1.  The applicant requests reconsideration of his previous request for promotion consideration by a position vacancy board (PVB).

2.  The applicant states, in effect, the Army Board for Correction of Military Records (ABCMR) denied his initial request because his packet for Position Vacancy Promotion to the Grade of Colonel of Lieutenant Colonels Previously Not Selected for Promotion by a Mandatory Promotion Board did not contain Secretary of the Army (SA) determination that he was the only qualified officer available to fill the vacancy.  He clarifies that his request for SA determination was a part of his PVB packet and his higher headquarters was negligent and derelict in not forwarding the request to the SA.

3.  The applicant provides:

	a.  A 7 August 2006 letter listing supporting documents.  This document is not evidence in support of his request.

	b.  Copies of two DA Forms 67-9 (Officer Evaluation Report) for the periods 20030220-20040219 and 20040220 to 20050219.  These documents were not previously submitted by the applicant, but were available to the ABCMR; therefore, they are not considered new evidence.

	c.  A 6 October 2004 Memorandum from the Commander, 353rd Civil Affairs Command to Secretary of the Army requesting approval of a position vacancy promotion to the grade of Colonel of a Lieutenant Colonel [applicant] previously not selected for promotion by a mandatory promotion board.  This document was previously considered by the ABCMR; it is not new evidence.

	d.  A 6 August 2004 Memorandum from US Army Human Resources Command (HRC), St. Louis, MO with subject:  Procedures for Submission of Recommendation for the 22-25 March and 27-30 September 2005 Position Vacancy Boards (PVB) for Troop program Unit (TPU) Positions.  This document was previously considered by the ABCMR; it is not new evidence.

	e.  A copy of a Diploma, US Army Signal Center and Fort Gordon (GA) showing completion of the Signal Officer  Advanced Course on 25 June 1985.  This document was not previously submitted by the applicant, but was available to the ABCMR; therefore, it is not considered new evidence.

	f.  A copy of DA Form 4037 (Officer Record Brief) with brief date of 20041007.  This document was not previously submitted by the applicant, but was available to the ABCMR; therefore, it is not considered new evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050005444 on 26 January 2006.

2.  The applicant states his higher headquarters, US Army Special Operations Command (USASOC), provided multiple reasons for rejecting his PVB packet.  In December 2004, he was advised that the position was ineligible for PVB consideration since the position had not been vacant from the previous year.  He was also told that, due to mobilization, Soldiers who were on derivative unit identification of the Command were included in the unit's overall headcount, thus all Civil Affairs position vacancy requests were denied.  In February 2005, he was advised that his PVB packet was rejected based on his being ineligible due to his non-selection for promotion by the July 2004 Reserve Component Selection Board (RCSB).  When he mentioned the waiver process for officers non-selected by a mandatory board, he was then advised to consider pursuing a due process issue through other means.

3.  The applicant contends that USASOC was negligent and derelict in not processing his PVB packet.  He argues the ABCMR's denial of his initial application is improper because it is based on the fact there was no record of SA action on his request for approval of a position vacancy promotion to the grade of Colonel of a Lieutenant Colonel previously not selected for promotion by a mandatory promotion board.  The reason there is no record of SA action is because USASOC did not forward his packet containing the request to the SA.

4.  The applicant's record reflects an officer who was twice non-selected for promotion to Lieutenant Colonel in 1998 and 1999.  He was finally promoted by a Special Selection Board (SSB) under the 1998 criteria.  Since then he has twice been non-selected for promotion to Colonel in 2004 and 2005.

5.  Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), prescribes Reserve Component (RC) policies and procedures for promotion of officers, including position vacancy promotions.  It states promotion to fill authorized TPU position vacancies may be 

filled through promotion of the best qualified, geographically available officers.  It specifically provides officers failed of selection by a mandatory promotion board to the grade of colonel will not be considered unless the SA finds that the officer is the only qualified officer available to fill the vacancy.

6.  AR 135-155 in Appendix B specifies that an RC Lieutenant Colonel who has failed of selection for promotion by a mandatory board may be considered by a PVB only if the SA determines that the officer is the "only qualified officer available for filing the vacancy."  The SA may not delegate this authority.  A request must be submitted in strict compliance with the instructions for the required data (emphasis added).  Those requests not in compliance with these instructions or that contain administrative errors will be returned without action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is a USAR officer who has been repeatedly passed over for promotion, thereby indicating that he is not among the "best qualified" to fill authorized TPU position vacancies.  Thus as a last resort to gain promotion, he attempted to become the "only qualified officer available for filing the vacancy."

2.  The applicant argues that USASOC was obligated to forward his PVB packet to the Commander, HRC-St. Louis, but did not do so.  He also argues that USASOC gave him multiple, invalid reasons why the packet was rejected and finally told him to seek "due process [recourse] through other means."

3.  Regardless of the reason given by USASOC for rejecting the applicant's PVB packet, the packet should have been rejected.  The applicant's request to the SA was woefully deficient in providing the required information for an informed decision.  AR 135-155, at Appendix B-2, provides highly detailed, and very specific, instructions for recommending an officer for promotion to the SA.  The information includes:

	a.  Nominated officer (Last, First MI).

	b.  The month and year of the HQDA mandatory promotion board by which this officer, under 10 USC was deemed failed of selection to the grade of Colonel.

	c.  Using the provided duty position description, describe why the above named officer's qualifications make him/her the only qualified officer available to fill the vacancy.

	d.  Position vacancy TDA/TOE/MTOE number.

	e.  Document E-date.

	f.  Paragraph & line number.

	g.  The position is a current vacancy or projected vacancy (give projected vacancy date – must be within 6 months). 

	h.  Include the reason for the vacancy or projected vacancy in the transmittal memorandum to the Secretary of the Army.  Also, include the name of the officer who last held the position and the reason for that officer vacating the position (e.g., retirement, separation, or reassignment to another critical position).  If the officer was reassigned, include the reason for the reassignment and the TDA/TOE/MTOE paragraph and line number to which the officer was reassigned. 

	i.  Provide a description of the duty position.  Include a list of the specific qualifications required for the position and information regarding geographic location.  If this description was modified in any way since the position was last filled, include a detailed explanation of the modification and the reason for the change.

	j.  Provide information about Colonels:  total authorized; total assigned; number of additional valid temporary authorizations; in the grade of Colonel, include totals for all commands subordinate to the requesting authority.

	k.  Officers Not Recommended for Assignment:  provide information justifying the absence of any other qualified, available officers.  For Colonels, provide a by-name list of all officers in the grade of Colonel in the competitive category(ies) authorized to fill the position vacancy who were considered to fill the position, but not recommended.  Explain the reason why each officer was determined not to be qualified or available to fill the vacancy.  If there are no officers in the grade of colonel available to fill the position, state so.  For promotable Lieutenant Colonels,.provide a by-name list of all officers in the grade of Lieutenant Colonel of the competitive category(ies) authorized to fill the position vacancy who are on a standing promotion list and were considered to fill the position described, but were not recommended.  Explain the reason why each officer was determined not to be qualified or available.  If there are no officers in the grade of Lieutenant Colonel in this category, state so.  For failed of selection Lieutenant Colonels, provide a by-name list of all failed of selection officers in the grade of Lieutenant Colonel of the competitive category(ies) 

authorized to fill the position vacancy who were considered to fill the position described, but were not recommended.  Explain the reason why each officer was determined not to be qualified or available. If there are no officers in the grade of Lieutenant Colonel in this category, state so.  For Lieutenant Colonels meeting minimum time-in-grade requirements, provide a by-name list of all other Lieutenant Colonels of the competitive category(ies) authorized to fill the position vacancy who meet the minimum time-in-grade requirements for position vacancy promotion, and were not recommended to fill the position described.  Explain the reason why each officer was determined not to be qualified or available.  If there are no officers in the grade of Lieutenant Colonel in this category, state so.

4.  As the ABCMR's previous decision noted, the applicant stated, at the time of the March 2005 PVB, a position within his unit was not available for consideration since the position would have to have been vacant from the previous year and, due to mobilization, all 38A Civil Affairs position vacancy requests had been denied.

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

__mkp___  __lwr___  __reb___  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 to amend the decision of the ABCMR set forth in Docket Number AR20050005444, dated 26 January 2006.



							Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011839
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.