RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070004260 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

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 requests promotion to colonel/pay grade O-6, retroactive to at least the date of Fiscal Year (FY) 2005 Selection Board with an appropriate sequence number and date of rank.

2.  The applicant states he was considered by the FY03 and FY04 Selections Boards that convened in July 2002 and July 2004 respectively, for promotion "in the zone" to Colonel and that he was not selected despite his two "above center mass" officer evaluation reports (OER).  The applicant continues that he was erroneously considered by the United States Army Reserve (USAR) Selection Board that convened in July 2005 and was selected for promotion.  The applicant states that he contacted the Army Human Resources Command (AHRC) and had his name removed from the erroneous USAR list.  The applicant also states that he requested a Special Selection Board (SSB) in May 2006 for the FY03 selection board, which selected him for promotion to Colonel. The applicant further states a legal review of the 2006 Selection Board overturned and invalidated the Selection Board's decision to promote him.  The applicant concludes that his selection by the USAR Selection Board was proof that his records were competitive and indicate his qualification for promotion to Colonel.

3.  The applicant provides a self-authored statement describing his rebuttal comments in support of his application 

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant through the Army Reserve Officer Training Program (ROTC) in the Regular Army on 27 May 1981.  He was promoted to first lieutenant on 27 November 1982, to captain on 1 December 1984, to major on 1 March 1993, and to lieutenant colonel on 1 October 1998.  The applicant's control branch is Infantry and his functional category is Maneuver Fires and Effects. 

2.  On 14 June 2001, the applicant assumed duties of Battalion Commander of Headquarters Company, 1st Battalion, 1st Infantry, West Point, New York.  

3.  On or about 30 July 2002, the FY02 Colonel, Competitive Category Promotion Board was held to consider lieutenant colonels for promotion to colonel.  



4.  The cutoff date for OERs to arrive and be considered by that board was 22 July 2002. The applicant's first command officer evaluation report (OER) was for the period 1 May 2001 through 30 April 2002.  The applicant's OER was received and processed at the Army Human Resources Command (AHRC) on 5 July 2002.  The Selection Board reviewed the applicant's OER as part of his promotion selection file.  On 20 March 2003, the results of the FY02 Colonel, Competitive Category Promotion Board were released.  The applicant was not selected for promotion by that board.
 
5.  On or about 29 July 2003, the FY03 Competitive Category Promotion Board was held to consider lieutenant colonels for promotion to colonel.  The cutoff date for OERs to arrive and be considered by that board was 25 July 2003.  The applicant's second command OER was for the period 1 May 2002 through 30 April 2003.  The applicant's OER was received and processed at the AHRC on 23 June 2003.  The Selection Board reviewed the applicant's OER as part of his promotion selection file.  On 4 December 2003, the results of the FY03 Colonel, Competitive Category Promotion Board were released.  The applicant was not selected for promotion by that board.

6.  On or about 27 July 2004, the FY04 Competitive Category Promotion Board was held to consider lieutenant colonels for promotion to colonel.  On 2 December 2004, the results of the FY04 Colonel, Competitive Category Promotion Board were released.  The applicant was not selected for promotion by that board.

7.  In July 2005, due to an administrative error, the applicant's file was transferred to the USAR at which time he was considered by the FY05 Reserve Colonel Selection Board and was selected for promotion to colonel by that board.  The applicant contacted his assignment officer at the AHRC.  After reviewing his records, AHRC determined that his promotion selection by the USAR was erroneous and he was subsequently removed from the promotion list. 

8.  In May 2006, the applicant requested a Special Selection Board (SSB) for reconsideration of the FY03 board.  There is no evidence that the applicant's request for a SSB was approved or that a SSB was held to reconsider the applicant's records.  Evidence shows that The Office of the Judge Advocate General reviewed the applicant's request for the SSB and determined that there was no material error to justify convening a SSB.  



9.  In the processing of this case and advisory opinion was obtained from the Chief, Promotions Branch, Army Human Resources Command.  The advisory opinion stated that the FY02 and FY03 promotion boards considered the applicant's complete record and that no material error existed.  The advisory opinion also acknowledged that the applicant was erroneously considered for promotion by a USAR selection board.  

10.  On 5 June 2007, the applicant submitted a rebuttal response to the advisory opinion.  He stated, in part, that he never received confirmation of the action taken by the SSB and that the SSB denied his request to convene and consider his records.  The applicant also stated that given his excellent performance and the fact that the erroneous USAR board selected him for promotion, there is no basis for the decision of the advisory opinion. 

11.  Army Regulation 600-8-29 specifies that promotion reconsideration by an SSB may only be used 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 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 errors 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 also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records were not fairly reviewed by the Promotion Boards because they were incomplete which resulted in his non-selection for promotion to colonel.  The applicant further contends that he requested a Special Selection Board to reconsider his records for promotion. 

2.  Evidence shows that the applicant's entire promotion file was present and considered by the FY02 and FY03 promotion boards.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that a material error existed in his file that would require convening a Standby Selection Board.  The applicant did not provide sufficient proof that a material error existed in his file at the time he was non-selected for promotion. 




3.  The applicant argues that his selection for promotion by a Reserve Component Promotion shows that he is qualified for promotion as an active duty officer.  The erroneous consideration and selection by the 2005 Army Reserve Colonel Board is not a definitive indication that an officer would be selected by an Active Duty Board.  The criteria for promotion is unique for each Board as is the qualifications of the officers considered.  The Army selects officers for promotion based on the fact that they among the best qualified of those officers considered. Based on the fact that the Promotion Boards do not divulge the reason for nonselection and there was no material error in the applicant's file at the time of his consideration for promotion, there is insufficient evidence to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SP___  _EM_ __  _KAN_____  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.




__Kathleen A. Newman_
          CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.