IN THE CASE OF:
BOARD DATE: 26 March 2009
DOCKET NUMBER: AR20090000159
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, reconsideration of his earlier petition requesting promotion to colonel (COL) based on selection by a Special Selection Board (SSB).
2. The applicant states, in effect, that the ABCMR should issue an opinion that the reasons given by the Army G-1 for refusing to send his promotion back to the Senate for confirmation is erroneous, and that directs the G-1 to resubmit his nomination for promotion to the Senate.
3. The applicant provides a self-authored letter to the Board and the six documents identified as enclosures in support of reconsideration request.
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 AR20080001161, on 26 February 2008.
2. During its original review of this case, the Board determined that after having been selected for promotion to COL by an SSB, the applicant 's promotion failed to be confirmed by the Senate and was not approved by the President as required by law.
3. The Board also concluded during its initial review that although the applicant's promotion packet could have been resubmitted for reconsideration by the Senate, there was no appellate process defined by law that required Army Human Resources Command (HRC) to take this action. It further determined that absent any evidence of error or injustice in the process, there was an insufficient evidentiary basis to support the ABCMR requiring the resubmission of the applicant's COL promotion packet to the Senate for confirmation.
4. In his reconsideration request, the applicant alleges that the only reason the Army G-1 refused to return his nomination to the Senate was that former officers were not entitled to an SSB. He claims this logic is confirmed in an electronic mail (e-mail) message from the G-1, dated 11 December 2008. He claims the ABCMR gave various speculative reasons for the Army G-1's refusal to return his nomination to the Senate and that it is obvious these speculative reasons dreamed up by the ABCMR are false. He claims the single reason the G-1 refused to return his nomination to the Senate was the misguided belief that former officers cannot receive a SSB, which is blatantly untrue. He also states that it should be clear he is not a former officer since he will be retired as a lieutenant colonel in a little over a year.
5. Title 10, U.S. Code, Section 12203 provides guidance on the appointment of Reserve officers in commissioned grades. It states, in pertinent part, that appointments of Reserve officers in commissioned grades above lieutenant colonel and commander shall be made by the President, by and with the consent of the Senate.
6. Title 10, U.S. Code, Section 14310 provides guidance on the removal of officers from a list of officers recommended for promotion. It states, in pertinent part, that if the Senate does not give its advice and consent to the appointment to the next higher grade of an officer whose name is on a list of officers approved by the President for promotion, the name of that officer will be removed from the list.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his promotion nomination should be resubmitted to the Senate was carefully considered. However, there is insufficient evidence to support this claim.
2. By law and regulation, if the Senate does not give its advice and consent to the appointment to the next higher grade of an officer whose name is on a list of officers approved by the President for promotion, the name of that officer will be removed from the list.
3. The evidence of record clearly shows the Senate failed to give its advice and consent to the applicant's promotion nomination and as a result he was not promoted by the President. It further shows that Army promotion officials elected not to resubmit his nomination to the Senate, which is a decision that rests entirely within their discretionary authority.
4. Further, as a result of the failure of the Senate to give its advice and consent to his promotion, the applicant's name was appropriately removed from the promotion list in accordance with the governing law and regulation.
5. Absent any compelling evidence that shows any error in the nomination process that would support the resubmission of the applicant's promotion nomination to the Senate as an exception to policy, it would not be appropriate or serve the interest of justice and equity for this Board to substitute its judgment for that of the Senate or Army promotion officials, whose actions were all accomplished in accordance with the existing governing law in this case.
6. 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 or that would support amendment of the original Board decision in this case.
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 AR20080001161, dated 26 February 2008.
________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) AR20080001161
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ABCMR Record of Proceedings (cont) AR20090000159
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