RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 October 2007
      DOCKET NUMBER:  AR20070004151


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Joe R. Schroedor              |     |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, in effect, reconsideration of his request to be
reconsidered for promotion to colonel (COL) by a Special Selection Board
(SSB).

2.  The applicant states, in effect, there were several material errors in
his record when he was reconsidered for promotion by an SSB in 2005, which
used the 1999 criteria for promotion to COL.  He claims the original ABCMR
decision that directed the SSB action required that a statement be added to
his Official Military Personnel File (OMPF) explaining the gap in his
Officer Evaluation Report (OER) history from 1995 to the time of the 1999
promotion selection board and this was not done; that the SSB failed to
conduct a full review of his OMPF; and that he was not provided the
opportunity to review the file considered by the SSB promotion board.  He
states that the reasons all constitute material error, which is the basis
for his reconsideration request.

3.  The applicant provides a self-authored statement and the 19 enclosures
therein listed in support of his application.

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
AR20050013079, on 22 June 2006.

2.  During its original review of his case, the Board determined the
applicant had been properly advised of his promotion reconsideration under
the 1999 criteria in November 2004, that he was informed of his non-
selection for promotion by the SSB in July 2005, and that the governing
regulation does not provide for further reconsideration by an SSB based on
non-selection by an SSB.  As a result, it concluded there was no basis for
further promotion reconsideration of the applicant under the 1999 criteria.


3.  The applicant provides new arguments in his reconsideration request
that states the requirements of a 10 October 2001 ABCMR decision that an
adequate explanation be placed in his OMPF to show the gap in his Officer
Evaluation Reports (OERs) were not met prior to his promotion
reconsideration by the SSB in June 2006, which would have left the SSB with
a negative reflection on his performance.  He further states that he was
never afforded the opportunity to review his records prior to the SSB
consideration.

4.  In December 2001, the ABCMR determined the applicant was entitled to
reconsideration for promotion to lieutenant colonel (LTC) under the 1994
criteria and recommended that an adequate explanation be placed in the OMPF
to show that the gap in his OERs was not caused by any fault on his part.
Subsequent to this decision, he was selected for promotion to LTC by an SSB
under the 1994 criteria in 2002.

5.  On 1 April 2000, the applicant was released from active duty and placed
on the Retired List in the rank of LTC.  In November 2004, he was notified
that he would be reconsidered for promotion to COL by an SSB under the 1999
criteria and in July 2005, he was notified he was not selected for
promotion to COL by the SSB.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) prescribes policy and procedures used
for selecting and promoting commissioned officers (other than commissioned
warrant officers) of the Army National Guard of the United States (ARNGUS)
and of commissioned and warrant officers (WO) of the U.S. Army Reserve
(USAR).

7.  Chapter 3 outlines board schedules and procedures.  Paragraph 3-4
provides guidance on notices of consideration.  It states, in pertinent
part, that the notice of consideration will be dispatched at least 90 days
before the convening date of the board.  Officers will be directed to
review their records and submit copies of missing documents or other
corrections.

8.  Paragraph 3-19 of the promotions regulation contains guidance on
promotion reconsideration boards.  It states, in pertinent part, that in
order to find a material error, a determination should be made that there
is a fair risk that one or more of the following circumstances was
responsible:  (1)  The record erroneously reflected that an officer was
ineligible for selection for educational or other reasons. In fact, the
officer was eligible for selection when the records were submitted to the
original board for consideration; (2)  One or more of the evaluation
reports seen by the board were later deleted from an officer's OMPF; (3)
One or more of the evaluation reports that should have been seen by a board
(based on the announced cut-off date) were missing from an officer's OMPF;
(4)  One or more existing evaluation reports as seen by the board in an
officer's OMPF were later modified; (5)  Another person's adverse document
had been filed in an officer's OMPF and was seen by the board; (6)  An
adverse document, required to be removed from an officer's OMPF as of the
convening date of the board, was seen by the board; (7)  The Silver Star or
higher award was missing from an officer's OMPF; or (8)  An officer's
military or civilian educational level, including board certification level
for AMEDD officers, as constituted in the officer's record (as seen by the
board) was incorrect.
9.  Paragraph 3-19 of the promotions regulation also contains the following
list of factors that will normally result in a material error
determination:  (1)  Officer is removed from a selection list after the
next selection board considering the officers of his or her grade recesses.
 If eligible, this person will be considered by the next regularly
scheduled selection board.  A special board will not be used.; (2)  An
administrative error was immaterial, or, the officer in exercising
reasonable diligence, could have discovered and corrected the error or
omission in the OMPF, or the officer could have taken timely corrective
action; and (3) Letters or memorandums of appreciation, commendation, or
other commendatory data for awards below the Silver Star are missing from
the officer's OMPF.

10.  Paragraph 3-20 contains guidance on information provided to SSBs.  It
states that a promotion reconsideration board will consider the record of
the officer as it should have been considered by the original board.
Commissioned officers considered by a mandatory promotion board on or after
1 October 1996 will be considered by a special selection board.  The
records of officers being reconsidered by a special selection board will be
compared with a sampling of those officers of the same competitive category
who were recommended and who were not recommended for promotion by the
original mandatory Reserve of the Army selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be reconsidered for promotion
because the absence of an explanation statement recommended by the ABCMR in
2001 was not included in the file reviewed by the SSB and because he was
not provided the opportunity to review the record provided the SSB, which
constitutes material error, was carefully considered.  However, these
factors are not sufficiently mitigating to support granting the requested
relief.

2.  The absence of the explanation statement recommended by the ABCMR in
and of itself does not constitute a material error as defined by the
regulation.  Given the applicant was selected for promotion to LTC by an
SSB subsequent to the 2001 ABCMR decision, it is reasonable to conclude
that the non-prejudicial purpose of the statement in question had been
satisfied at that point.  Further, it is not reasonable to conclude that
the absence of the statement in question would have made the applicant more
competitive for promotion to COL, or would have resulted in a different
outcome by the 2005 SSB.  As a result, this is not considered a material
error and does not support further promotion reconsideration.

3.  By regulation, SSBs will consider the record of the officer as it
should have been considered by the original board and will be compared with
a sampling of those officers of the same competitive category who were
recommended and who were not recommended for promotion by the original
mandatory Reserve of the Army selection board, and there is no specific
regulatory requirement for an officer to review his record during this
process.  The evidence of record confirms the applicant was notified of his
promotion reconsideration by the SSB in November 1994, and although SSB's
consider the member's record as it was constituted during the period when
original consideration took place and there is no requirement for a records
review, there is no indication that the applicant attempted to resolve
inconsistencies that may have existed in his record at anytime between the
time he was notified and the June/July 2005 timeframe when the SSB
reconsidered him for promotion.  As a result, the fact he did not complete
a review of his record also does not constitute a material error.

4.  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 or that would support
amendment of the original Board decision in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SLP  __  __JEA __  __JRS___  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 AR20050013079, dated 22 June 2006.




                                  _____Shirley L. Powell ____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070004151                           |
|SUFFIX                  |                                        |
|RECON                   |AR20050013079 - 2006/06/22              |
|DATE BOARDED            |2007/10/16                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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