IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080005260 


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, below the zone promotion consideration to major by a special selection board (SSB) under the 2007 year criteria and promotion to major effective as if he had been selected in 2007. 

2.  The applicant states, in effect, he was not selected for below the zone promotion to major by the 2007 Reserve Components Selection Board (RCSB), because of an unjust officer evaluation report (OER) for the period 7 November 2005 to 30 April 2006.  The OER Appeals Branch ruled in his favor.  He also states that there were at least nine Active Guard Reserve officers promoted below the zone, two were Signal Corps officers.  He further states, in effect, one officer was selected ahead of him by the 2006 Command Board and he was selected for command ahead of the other officer.  If not for that OER, all things being equal, nothing should have changed between the Command Selection Board and the below zone promotion consideration that convened within one year of each other, as reflected in the selection of the first and third ranked Signal Corps officers.   

3.  The applicant provides in support of his application copies of his civilian and military education completion documents; his 2002, 2003, 2004, 2005, and 2006 OERs; 2004 and 2006 Army Commendation Medal award certificates; Officer Record Brief; his official Department of Army (DA) Photograph; the 2007 Major RCSB Selection Board Results List; and his OER appeal decision and non-rated statement.  


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United States Army Reserve, as a second lieutenant, effective 4 August 1996, with prior enlisted service.  He was promoted to first lieutenant effective 4 December 1998 and to captain effective 9 January 2002.  His records show he completed all the required civilian and military education for promotion to major.

2.  The applicant was considered and not selected for promotion below the zone to major by the 2007 RCSB that convened on 12 March and recessed on 
29 March 2007.  The board results were released on 3 July 2007.

3.  On 8 February 2008, the Deputy Chief of Staff for Personnel, Special Review Board, Human Resources Command (HRC), St. Louis, Missouri, determined that the evidence submitted by the applicant justified removal of his OER for the period 7 November 2005 to 30 April 2006.  The board also declared the period non-rated and issued a non-rated statement.

4.  Based on the required completion of 7 years maximum time in grade, the applicant’s promotion eligibility date for major is 8 January 2009, with consideration by a general mandatory selection board.

5.  In an advisory opinion, dated 26 June 2008, the Chief, Special Actions Branch, DA Promotions, HRC, St. Louis, stated that the case should have come directly to the Promotions/Special Actions Branch as the officer was asking to be reconsidered by a special board because of a corrected OER.  The applicant was considered and not selected by the 2007 Major RCSB and the reasons for non-selection are unknown because board deliberations are not a matter of record.  The zone of consideration for the 2007 Major RCSB was for officers with a date of rank for captain of 31 August 2001 and earlier.  The Secretary of the Army sometimes authorizes consideration of officers below the promotion zone.  That was the case for the 2007 Major RCSB.  Officers with a date of rank for captain of 1 September 2001 through 31 August 2002 were also considered.  The applicant’s date of rank was 9 January 2002 and that placed him in the below the zone consideration.  In accordance with Army Regulation 135-155, paragraph 
2-10d(6), “SSBs will not consider officers for below the zone promotion.”  Therefore, the applicant does not have a basis for a SSB.

6.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 17 July 2008 and he did not respond.

7.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 2-10 of this regulation specifies that general mandatory selection boards will convene each year and consider officers for promotion to captain through lieutenant colonel.  First consideration will occur well in advance of the date the officer will completed the time in grade requirements.

8.  Army Regulation 135-155, paragraph 2, also specifies that the Secretary of the Army may, when the needs of the Army required, authorize the consideration of officers for promotion to the next higher grade from below the promotion zone. Selection boards considering officers for promotion may recommend outstanding officers from below the zone of consideration and the number recommended may not exceed 10 percent of the total number recommended, except that the Secretary of Defense may authorize that percentage to be increased to not more than 15 percent.  Below the zone promotions are a part of the mandatory Reserve of the Army promotion system.  They are intended to provide officers of exceptional quality an opportunity to advance quickly to more responsible positions, help retain quality officers, and give officers incentive to perform at their highest potential.   Since only a few officers may be selected for promotion from below the zone consideration, failure to be selected will neither count as a non-selection nor reflect unfavorably on the officers.  A SSB will not consider officers from below the zone promotion.  

9.  Army Regulation 135-155 further specifies that promotion consideration or reconsideration by a SSB may only be based on erroneous non-consideration from in or above the promotion zone by a regularly scheduled mandatory board because of administrative error or material error in the record. SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration by a mandatory selection board.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for selection or non-selection, except where an individual is not qualified due to non-completion of required civilian or military schooling.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to below the zone promotion consideration to major by a SSB under the 2007 year criteria and promotion to major effective as if he had been selected in 2007.  He has not shown error, injustice, or inequity for the relief he now requests.

2. The applicant's contentions have been noted; however, his contentions also do not demonstrate error or injustice in his non-selection for promotion to major by the 2007 RCSB due to an unjust OER, nor error or injustice in his below the zone consideration.  Without evidence to show otherwise, it is concluded that the applicant was properly considered for promotion based on his date of rank and Secretarial authorization.

3.  In accordance with regulatory guidance, below the zone promotions are a part of the mandatory Reserve of the Army promotion system, and as promotion boards are not permitted to disclose the reasons for selection or non-selection for promotion, there is no record of why the applicant failed to be selected for promotion to major by the 2007 RCSB.  Only a few officers are selected for promotion from below the zone consideration and failure to be selected will neither count as a non-selection nor reflect unfavorably on the officers.  There are no provisions of law or regulatory guidance to direct the applicant’s consideration by a SSB for a below the zone promotion.

4.  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)                                         AR20080005260



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ABCMR Record of Proceedings (cont)                                         AR20080005260


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