RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070013444 


	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. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Ms. Jeanette McCants

Member

Mr. Scott Faught

Member

	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, promotion reconsideration to colonel by a special selection board (SSB) under the Fiscal year (FY) 2002/2003 criteria.

2.  The applicant states, in effect, he was not considered for colonel under the FY 2002/2003 criteria due to his rank being incorrect in his record and a promotion error by the LTC promotion board in 1997.  He was not promoted in 1997 as he should have been and he was rendered noncompetitive in every proceeding board.  His rank was corrected in 2004 when he was selected by a SSB.  However, it has not corrected him being not considered by the colonel FY 2002/2003 board and not competing with his contemporaries.

3.  He further states, in effect, because of the promotion error his record did not allow him to compete for colonel until 2005.  The Army Human Resources Command did not help because they found no material error in his file.  He feels that when he should have been promoted in 1997 and was not until 2004, his  
7 years being considered as a major instead of a LTC was a significant material error.  When he was promoted to LTC in 2004 with a date of rank and an effective date of rank of 1 November 1997, his record was not competitive through no fault of his own.  He is asking the SSB for promotion reconsideration to colonel using FY 2002/2003 criteria.

4.  The applicant provides a copy of a self-authored memorandum with Subject:  Explanation of Promotion Injustice; a memorandum from the U.S. Army Human Resources Command (USAHRC) with Subject:  Promotion Reconsideration; a letter with Subject:  Request for a SSB Promotion Reconsideration; USAHRC Order Number 180-013, dated 28 June 2004 and a letter from the Promotions Branch; Army Board for Corrections of Military Records (ABCMR) proceedings; and a memorandum from USAHRC with Subject:  Officer Evaluation Report/Academic Evaluation Report. 

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 AR20040004983 on 7 December 2004.

2.  In its original decision the ABCMR found that the applicant was selected for promotion to LTC by an SSB and if he had been selected for promotion in 1997, he would not have been retired in April 2002 by reason of being twice non-select for promotion.  The Board recommended that the applicant's retirement be voided and he be reinstated on active duty effective 1 April 2002, in the rank of LTC with a date of rank and effective date of rank of 1 November 1997, provided he otherwise met the retention physical fitness standards.

3.  In a self-authored memorandum he submitted with Subject:  Explanation of Promotion Injustice, it stated, in effect, that the failure of the LTC Chaplains Promotion Selection Board to select him for promotion in 1997 set in motion a career injustice that he cannot overcome due to no fault of his own.  Due to the promotion error he was forced to retire in April 2002.  He submitted an appeal and a SSB determined that he should have been promoted to LTC with an adjusted date of rank of 1 November 1997 and financially compensated him for lost wages he would have received (minus the wages he earned from civilian employment and additional taxes) during the interim retirement period.  He returned to active duty on 15 January 2005.  Based on his adjusted date of rank his file was presented to the Chaplains Promotion Selection Board in September 2005 with one Officer Evaluation Report (OER) for four months of duty performance and he was non-select.  Subsequently, he was non-select for promotion by the colonel Chaplains Promotion Selection Board conducted in September 2006 and 2007.  No statement was ever placed in his file explaining his situation or instructions on how board members should compare his limited number of OERs as an inequitable consequence of the original promotion board failure.  This clearly constitutes a material error in his record.

4.  In the memorandum he continues to state, in effect, that he appealed to USAHRC requesting the SSB to compare his OERs from his service as a LTC for the past 3 years against the files of his peers' first three OERs to determine his competitiveness for promotion.  USAHRC denied his request and replied that no material error existed.  The denial only compounded the original injustice made in 1997 which he could never correct through performance.  His mandatory retirement date would prevent him from serving long enough to generate the customary 6-7 OERs needed to be competitive.  He will always be at a disadvantage and will never be fairly compared for promotion.  He would like to have his performance record as it now stands with three OERs to compete against the records of his peers in the FY 2002/2003 Chaplains Promotion Selection Board primary zones of consideration for promotion.

5.  The USAHRC memorandum states, in effect, that the applicant’s request for promotion reconsideration was not approved because promotion reconsideration is approved only for non-selected officers whose records contained a material error when they were considered by a promotion selection board.

6.  The applicant’s Official Military Personnel File (OMPF) shows a memorandum for record (MOR) dated 19 April 2005 which declares the period 1 April 2002 to 16 January 2005 as nonrated.  This MOR also states that “Directed by Deputy Assistant Secretary (DA Review Boards) by memorandum to Office of Chief of Chaplains dated 10 December 2004, the above cited gap period be declared nonrated and that the gap was not caused by any fault on part of the officer.  The action should not be considered prejudicial to any future personnel action.”

7.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of Regular Army officers.  The regulation specifies that a SSB may be convened to consider or reconsider a commissioned officer 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.

8.  Army Regulation 600-8-29, section III, paragraph 1-10c(5) prescribes the policy and procedures for promotion to colonel.  The regulation states that colonel selection boards will convene at the discretion of the Secretary of the Army and will recommend only the best qualified from the list of those fully qualified for promotion.  It further states, in pertinent part, that 1 year of time in grade in the lower grade is required for promotion to colonel.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be given promotion reconsideration to colonel by a SSB under the FY 2002/2003 criteria.

2.  Evidence shows that the applicant's records were not considered for promotion to colonel under the FY 2002/2003 criteria.  When the applicant was promoted to LTC effective 1 November 1997, he became eligible for promotion consideration under FY2002/2003 criteria.

3.  In view of the circumstances and as a matter of equity, the applicant is entitled to promotion reconsideration to colonel by a SSB under the FY 2002/2003 criteria.

4.  As for his request for promotion reconsideration utilizing the three OERs he has been given as a lieutenant colonel, there are no provisions for a promotion board to consider documents recording events which occurred after the promotion year for which the officer is being considered.  However, the 19 April 2005 MOR informs the promotion board that the gap in the applicant’s rating history was not caused by any fault on part of the applicant and the action should not be considered prejudicial to any future personnel action.

BOARD VOTE:

__JM ___  ___JM __  ___SF___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his records to a duly constituted SSB for promotion reconsideration for colonel under the FY 2002/2003 criteria.

2.  His records be further corrected if selected by showing he was promoted to colonel on his date of eligibility, as determined by appropriate Departmental officials, using the FY 2002/2003 criteria, provided he was otherwise qualified and met all other prerequisites for promotion.

3.  That if not selected, the applicant be so notified.




______ John Meixell________
          CHAIRPERSON


INDEX

CASE ID
AR20070013444
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
131.01
2.

3.

4.

5.

6.