RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 February 2008
DOCKET NUMBER: AR20080001161
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
Mrs. Victoria A. Donaldson
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Ms. LaVerne M. Douglas
Member
Mr. John G. Heck
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 that he be promoted to the rank of colonel based on his selection by a Special Selection Board (SSB).
2. The applicant states, in effect, that he was selected for promotion to the rank of colonel by an SSB and that his promotion was not confirmed by the Senate. The applicant continues that the ABCMR has authority to promote him to the rank of colonel without Senate confirmation.
3. The applicant provides a letter from US Army Human Resources Command and an Office of the Under Secretary of Defense memorandum in support of this application.
CONSIDERATION OF EVIDENCE:
1. Records show that the applicant was considered by an SSB which convened on 24 March 2006 and adjourned on 27 March 2006. Records show that he was selected by an SSB for promotion to the rank of colonel.
2. As a required part of the promotion process, the applicant's name was submitted to the Senate for confirmation of the SSB selection. On 28 December 2006, the Office of the Under Secretary of Defense notified the Secretary of the Army that the applicant failed to receive Senate Confirmation.
3. The notification does not state the specific reason for the failure to receive confirmation. The notification does state that the nomination may be resubmitted to the Senate for further consideration.
4. The applicant provided a US Army Human Resources Command (HRC)-St. Louis advisory opinion for consideration with this application. The Chief of DA Promotions opined that the applicant could not be promoted by HRC officials until the Senate confirms his selection. The Chief of DA Promotions continued that on 29 December 2006, the Senate returned to the Secretary of the Army a memorandum which identifies the applicant as having failed Senate confirmation.
5. On 14 January 2008, the applicant provided a two-page letter to the Director of the ABCMR, stating there were several options available to the Board for authorizing his promotion to colonel without Senate Confirmation. Specifically, the applicant states that he believes the ABCMR has the authority to substitute
for Senate Confirmation in the case of former service members, return the packet
to HRC and request that it be reconsidered by the Senate for confirmation, and/or transfer him from the Air Force to the Army and direct that he be promoted to Colonel.
6. Section 12203(a) of Title 10, United States Code provides that appointments of Reserve officers in commissioned grades above lieutenant colonel and commander or below shall be made by the President alone, by and with the advice and consent of the Senate, except for certain circumstances not relevant here.
7. Section 14308 of Title 10, United States Code provided the process for promotion of commissioned officers. Specifically, this section states that when the report of a Selection Board convened under 14502 of this title is approved by the President [emphasis added], the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list to be known as the promotion list.
8. Section 14310(b) of Title 10, United States Code provides if the Senate does not give it's advice and consent to the appointment to the next higher grade of an officer on a promotion list, the name of that officer shall be removed from that list.
DISCUSSION AND CONCLUSIONS:
1. The applicantÂ’s request that he be promoted to the rank of colonel was carefully considered and determined to be without merit.
2. Evidence shows that the applicant was recommended for promotion to the rank of colonel by a Special Selection Board. However, during the processing of the applicant's promotion, specifically during the Senate Confirmation process, his promotion was not confirmed by the Senate. As a result, the applicant's promotion to the rank of colonel was not approved by the President as required by law.
3. The reason for failure of confirmation by the Senate is not published. Although the Office of the Under Secretary of Defense stated that the promotion packet may be reconsidered by the Senate, there is no appeal process for promotions which are not Senate confirmed. HRC officials have access to the applicant's entire military record, which includes any derogatory information, and have elected not to resubmit the applicant for Senate Confirmation.
4. The applicant further requested that the ABCMR promote him to the rank of colonel without Senate Confirmation. The promotion process for senior officers is a shared responsibility of the Executive Branch and the Senate. The ABCMR lacks the authority to affect a promotion of a senior officer without Senate Confirmation. Further, in the absence of a showing of error or injustice, the ABCMR lacks authority to correct Department of the Army records to require resubmission of the applicant's nomination for reconsideration to the Senate for confirmation.
5. Based on the foregoing, there is insufficient evidentiary basis to grant the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LMD__ _JGH___ __LDS___ 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.
_Linda D. Simmons___
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.
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