IN THE CASE OF:	  

		BOARD DATE:	       17 July 2008

		DOCKET NUMBER:  AR20080004089 


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 that he be granted an exception to policy and that the Officer Evaluation Reports (OERs) that he was furnished in the rank of lieutenant colonel (LTC) be included in his record, which will be reviewed by a Special Selection Board (SSB) for promotion to colonel (COL).

2.  The applicant states that he does not understand how a promotion board will be able to fairly evaluate his records for promotion to colonel with no LTC OERs available.  He states that all of his peers will have six or more OERs in LTC assignments.  He states that he does not understand how an SSB is going to review OERs that he was furnished in the rank of major and to convert them into LTC OERs.  He states that it appears that he will once again be disadvantaged by the process.  He states that he understands that there is no provision for the promotion board to consider documents recording events which occurred after the promotion years for which an office is considered; however, if an exception is not granted, it appears that once again he will be unfavorably considered and disadvantaged by the process that is trying to correct a past mistake.

3.  The applicant provides in support of his application, a self-authored memorandum, which is addressed to the Board, dated 8 January 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a commissioned officer in the United States Army Reserve, Chaplain Corps in October 1979 and was ordered to active duty on 3 May 1982.  He was promoted to Major, O-4 on 1 November 1990.
2.  The applicant was twice non-selected for promotion to LTC and was selectively continued on active duty.

3.  In 1999, the applicant applied to the Board for expunging an Officer Evaluation Report from his records and for promotion reconsideration.  On 1 September 1999, the Board panel recommended that the contested OER be expunged from his records and that his records be made available to the next scheduled SSB for promotion consideration.  The recommendation was approved and his records were reviewed by the next available SSB under the promotion criteria for fiscal year 1999; however, he was not recommended for promotion.

4.  On 1 April 2002, the applicant retired in the rank of Major after completing 20 years and 9 days of creditable active service.

5.  In 2004, apparently as a result of a court order, the applicant was again considered for promotion to LTC by an SSB, acting under Title 10, U. S. Code, section 628, under the promotion criteria for fiscal year 1997.  He was selected for promotion and given an LTC date of rank and effective date of rank of 1 November 1997.  The promotion orders gave the authority for promotion as Title 10, U. S. Code, section 628 as directed by the Secretary concerned under the provisions of Title 10, U. S. Code, Section 1558.  Apparently, the court order did not discuss restoration on active duty.

6.  On 23 July 2004, the applicant submitted an application to this Board requesting that he be restored to active duty in the rank of LTC.  On 7 December 2004, the Board determined that the applicant was selected for promotion by an SSB and that had he been selected for promotion in 1997, he would not have been retired in April 2002, by reason of being twice non-selected.  The Board recommended that relief be granted in his case by voiding his 1 April 2002 retirement; and by reinstating him 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.

7.  The applicant's Official Military Personnel File contain a Memorandum For Record (MFR) dated 19 April 2005, which confirms that for the period 1 April 2002 through 16 January 2005, an "OER/AER has not been received.  The period has been declared nonrated."  The MFR also reads "Directed by Deputy Assistant Secretary (DA Review Boards) by memorandum to Office of the 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."  The MFR is signed by the Chief, Appeals and Corrections Branch, United States Army Human Resources Command.

8.  On 21 September 2007, the applicant submitted an application to this Board requesting promotion reconsideration to COL by an SSB under the Fiscal Year 2002/2003 criteria.  In his application, he contended that he was non-selected for promotion to COL by the Chaplains Promotion Selection Boards conducted in September 2006 and in June 2007; and that the failure of the LTC Chaplains Promotion Board to select him for promotion in 1997 set in motion career injustices that he cannot overcome and that are not his fault.  The Board determined that when the applicant was promoted to LTC with an effective date of 1 November 1997, he became eligible for promotion consideration under the FY 2002/2003 criteria.  The Board further determined that as a matter of equity, he is entitled to promotion reconsideration to COL by an SSB under the FY 2002/2003 criteria.  The Board recommended that the applicant's records be submitted to a duly constituted SSB for promotion reconsideration to COL under the FY 2002/2003 criteria; and that, if selected for promotion, his records be corrected to show he was promoted to COL 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.

9.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of Regular Army officers.  The regulation specifies that an 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.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether the applicant is entitled to be granted an exception to policy by allowing his LTC OERs to be included in his record at the time of his promotion consideration by an SSB under the FY 2002/2003 criteria.

  

2.  The contentions made by the applicant have been noted.  However, at this time, his contentions are speculative at best.  As previously stated, there is a MFR in his official file dated 19 April 2005, which confirms that for the period 
1 April 2002 through 16 January 2005, an OER has not been received; and that the period has been declared nonrated.  The MFR also states that as Directed by the Deputy Assistant Secretary (DA Review Boards) by memorandum to the Office of the Chief of Chaplains dated 10 December 2004, the above cited gap period is declared nonrated and that the gap was not caused by any fault on the part of the officer.  The MFR further states that the action should not be considered prejudicial to any further personnel action.

3.  The applicant has provided no evidence to support his contention that he will be unfavorably considered for promotion to COL without his LTC OERs.  As he states in his current application, there are no provisions for a promotion board to consider documents recording event which occurred after the promotion years for which an officer is considered.  Allowing his LTC OERs to be reviewed during his upcoming promotion consideration would place him at an advantage that other individuals are not afforded.  Therefore, the OERs in question cannot be considered by the SSB.

4.  In order to justify correction of a military record the applicant must show 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.

5.  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

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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.



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