IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080004022 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, promotion reconsideration to lieutenant colonel by a special selection board (SSB), under the 2006 year criteria.   

2.  The applicant states, in effect, that he believes he has a basis for consideration by a SSB under the 2006 year criteria.  He states that he requested that the Army Human Resources Command (AHRC), Office of Promotions, St. Louis, Missouri, put his records before a SSB based on the fact that several documents were missing from his board file.  He was advised in a memorandum, dated 6 November 2007, that the reasons for his non-selection were unknown because statutory requirements prevented disclosure of board proceedings to anyone not a member of the board.  The memorandum also indicated that his 2006 board consideration file revealed all critical elements were present in the board consideration file - his highest military and civilian education documents were seen and he was not non-selected for military or civilian education.  

3.  The applicant also states, in effect, that during the period from 2000 to 2007, his last seven officer evaluation reports (OER) reflected "Above Center Mass" or "Center Mass" with no derogatory or adverse comments.  In particular, his last three OERs, two were senior rated by brigadier generals, stated that he should be promoted to lieutenant colonel now.  His most recent OER was given to him while he was in a mobilized status in support of Operation Iraqi Freedom.  The senior rater, a colonel, also stated that he should be promoted now.  The applicant also 

states, in effect, that he would like his records to be carefully considered by the Army Board for Correction of Military Records and reviewed as early as possible since he received a second pass-over for lieutenant colonel by the 2007 Reserve Components Selection Board (RCSB).

4.  The application provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant was appointed in the United States Army Reserve, as a second lieutenant, effective 13 June 1986, with prior enlisted Reserve Officer Training Corps service.  He was promoted to major effective 19 July 2000.

2.  The applicant was considered by the 2005 and the 2006 Reserve Components Lieutenant Colonel Selection Boards and was not selected for promotion.

3.  In the processing of the applicant's case, an advisory opinion was requested from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, AHRC, St. Louis, Missouri.

4.  In an advisory opinion, dated 2 May 2005, the Chief, Special Actions Branch, stated that the applicant was considered for promotion to LTC by the 2006 RCSB and was not selected.  The reasons for the non-selection are unknown because statutory requirements prevent the disclosure of board proceedings to anyone not a member of the board.  The Office of Promotions reviewed the applicant's 2006 board consideration file thoroughly and all critical elements were present in the board consideration file.  The applicant's request for a SSB was denied on 6 November 2007.

5.  The Chief, Special Actions Branch, also stated, in effect, that critical (material error) documents are highest civilian and military education, awards of the Silver Star and above, and OERs.  Based on the information furnished through the promotions systems database, the applicant viewed his promotion consideration file on 9 September 2006, prior to the convening date of the board.  The applicant states the Board did not see his completion certificate for the officer advanced course and his Bachelor Degree.  Review of the board file revealed his completion of a higher level of military and civilian education (Command and General Staff College and his Executive Master of Business Administration Degree); therefore, 

the applicant's file was complete.  The applicant's file also reflected that he met the education requirements for the board.  Since his highest education documents were seen and he was not passed over for education, the Office of Promotions denied the applicant's request for a SSB.

6.  The Chief, Special Actions Branch, further stated that on 18 February 2008, the applicant applied for a SSB for the 2007 year criteria and based his request on his OER ending 15 July 2007 not having been seen by the board.  The applicant was identified to a SSB for reconsideration under the 2007 year criteria.  In view of the foregoing, he recommended the applicant's request for reconsideration by a SSB under the 2006 year criteria be denied.

7.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 22 May 2008.  In the applicant's rebuttal, dated 30 May 2008, he again requested that his records be carefully considered by the ABCMR as early as possible.  The applicant added that he was advised in a conversation with an AHRC representative on 28 May 2008 that his retirement date should be December 2008.  He also added that because he was deployed at the time of the 2007 Lieutenant Colonel Promotion Board, his latest OER for the period 1 November 2006 through 15 July 2007, did not make it to the board on time for it to be considered.  He continued that his records indicated that his OER was not profiled and posted in his official military personnel file until the middle of the board.  At this time, his record is scheduled for review in November 2008 by a SSB; however, there is insufficient time between his retirement date and the date the SSB convenes.  In support of his rebuttal, the applicant provided a copy of his DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes).

8.  On 20 June 2008, the applicant submitted a follow up to his rebuttal to the advisory opinion.  The applicant nonconcurred with the advisory opinion and reiterates that he believes he has a basis for a SSB under the 2006 criteria.

9.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that promotion consideration or reconsideration by a SSB may only be 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.  The regulation further specifies that only critical elements are a basis for consideration by a SSB based on material error.  Critical elements are military education, OERs and the Silver Star or higher award.

10.  The above referenced regulation further provides that an administrative error was immaterial if the officer, in exercising reasonable diligence, could have discovered the error or omission and had timely taken corrective action notifying the Chief, Office of Promotions, AHRC – St. Louis, and providing supporting documentation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has a basis for a SSB based on the fact that several documents were missing from his board file.

2. The applicant's contentions were noted and his file was reviewed to determine his eligibility for a SSB under the 2006 and 2007 year criteria.

3.  After having reviewed the applicant's Army personnel file, and in particular his promotion file, it was found these files contained all of his pertinent documents, i.e., highest civilian and military education, OERs, and the Silver Star or higher award, when it was reviewed by the 2006 RCSB.  It was also determined that his records, when they were reviewed by the 2006 RCSB, were complete and without material error.  His contentions also do not demonstrate error or injustice in the reasons for the denial of his request for reconsideration under the 2006 year criteria, nor error or injustice in the disposition of his case.

4.  Because promotion boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of why the applicant failed to be selected for promotion to LTC by the 2006 RCSB.  Promotion and retention is keenly competitive, and many officers will not be selected. 

5.  There is no indication that the applicant’s non-selection to LTC by the 2006 RCSB was unjust or inequitable.  There is no evidence of any record showing that his non-selection was contrary to law.  Without evidence to show otherwise, it is concluded that he was properly considered for promotion.

6.  In view of the circumstances in this case, the applicant is not entitled to promotion reconsideration to LTC by a SSB under the 2006 year criteria.  He has not shown error, injustice, or inequity for the relief he now requests.

7.  A review of the applicant's record in consideration for a SSB under the 2007 criteria revealed that his OER for the period 1 November 2006 to 15 July 2007 was not seen by the 2007 RCSB.  As a result, he has been identified to a SSB for reconsideration under the 2007 year criteria.  He will be notified by the Office of Promotions, AHRC, St. Louis, of these results and about Departmental procedures pertaining to members who have retired or who are about to retire.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  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.



      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080004022



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ABCMR Record of Proceedings (cont)                                         AR20080004022



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