IN THE CASE OF:	  

		BOARD DATE:	        12 MARCH 2009

		DOCKET NUMBER:  AR20080015190


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 reconsideration of his request for promotion reconsideration to the rank of colonel (COL).

2.  The applicant states, in effect, that he requests reconsideration of his previous request based on the submission of new information and argument that was not previously considered by the Board.  He goes on to state that the Calendar Year 2007 (CY07) COL Army Promotion List (APL) Reserve Components (RC) Promotion Selection Board reviewed an Officer Record Brief (ORB) that was dated in August 2005; however, he had provided an updated copy of his ORB for the board to review and he believes that the presence of an outdated ORB was extremely prejudicial and constitutes substantive material error that warrants reconsideration.  He goes on to state that reconsideration is warranted because his joint experience was not properly considered during the selection process and contends that his record is equal or better than the officers that were selected by the board.  He continues by stating that the promotion selection board was flawed because they did not properly consider RC officers with joint experience.  Additionally, the Board incorrectly stated in the original Record of Proceedings that there were no RC additional skill identifiers (ASI) for RC officers, which is inaccurate.

3.  The applicant provides a two-page explanation of his request for reconsideration, copies of his 2005 and 2008 ORBs, a copy of an analysis of the board selection results, pages from U.S. Army Reserve Regulation 10-5 (Army Reserve Organization and Functions), and copies of joint code verification in the Enhanced Command Army Reserve Data Access Retrieval Tool (eCARDART) application.

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 AR20080003736 on 14 August 2008.

2.  In the processing of this case a staff member contacted officials at the Human Resources Command - St. Louis (HRC-STL) Office of Reserve Component Promotions to ascertain if the 2005 ORB was the only ORB reviewed by the 2007 COL APL RC promotion selection board.  Officials informed the staff member that the procedure for promotion selection boards is to notify eligible individuals 60 days prior to the convening date to update their records.  Two weeks prior to the convening date, the HRC-STL staff runs an updated copy of ORBs for each eligible individual being considered.  If the individual officer made no changes, the only difference would be the date of the ORB.  In the applicant's case, the 2005 ORB in question was not a hard copy ORB.  That ORB was filed in the applicant's OMPF and was viewable electronically by the board members if they chose to do so.  In any event, the board was provided with a current-dated hard copy ORB placed in the individual's promotion folder at the time of the board.  With regard to the board being flawed, officials at the HRC-STL indicate that the board was properly approved and that no instructions had been received to date to reconvene the board.

3.  The applicant wrote a memorandum to the President of the 2007 COL APL RC Selection Board indicating that he had reviewed his board file on-line and found it complete.  He further emphasized that his joint experience was unique to his career and went on to describe his accomplishments in joint assignments.

4.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides the policies and procedures for convening Special Selection Boards (SSB).  It provides, in pertinent part, that Special Selection Boards are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s nonselection by a promotion board.  Had such errors been corrected at the time the individual had been considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The HRC-STL Office of Promotions will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Office of Promotions of the error and providing any relevant documentation.

5.  Army Regulation 135-155 also provides that an officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to their consideration.  Any written communication considered by a selection board will become a matter of record and will be maintained with the records of the board for 1 year.  Board members must take an oath that they will not divulge the proceedings or results thereof pertaining to the selection or nonselection of individual officers except to proper authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive promotion reconsideration to the rank of colonel because the selection board reviewed his 2005 ORB has been noted and found to lack merit.  While the 2005 ORB was available for review by the selection board, the Board cannot determine with any degree of certainty whether the board members actually viewed that document because it was filed on his OMPF along with other documents in his official records, such as evaluation reports.  However, an updated hard copy of his ORB was available to the board members for review.

2.  The applicant's contention that the board did not properly consider RC officers with joint experience has also been noted and found to lack merit.  The board was approved and to date, no instructions have been issued to reconvene that board specifically to re-look at officers with joint experience.

3.  It is a well-known fact and practice that board members are not allowed to divulge the proceedings or results thereof pertaining to the selection or nonselection of individual officers.  Therefore, the applicant's contention that his non-selection was based on the 2005 ORB in his records and that the board did not properly consider officers with joint experience is, at best, speculative on his part.

4.  The bottom line in this case is that the applicant was not selected for promotion to the rank of colonel by the 2007 APL RC Selection Board and he has failed to show sufficiently convincing evidence to support his contention that his record contained material errors that caused his nonselection or that the board did not properly consider his records, especially since he provided the selection board with a memorandum highlighting his experience.

5.  While it is unfortunate that the applicant was not selected for promotion to the rank of colonel, it is also a well-known fact that not all officers are selected by promotion boards because there are always more officers eligible than there are authorizations to promote.  If such was not the case, there would be no need to have a selection board.

6.  Accordingly, it would be inappropriate for this Board to second-guess the members of the selection board who had the opportunity to compare the applicant's records with those of his peers without sufficiently convincing evidence of an error or injustice.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080003736, dated 14 August 2008.


      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20080015190



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ABCMR Record of Proceedings (cont)                                         AR20080015190



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