IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090017407 


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 he be reconsidered for promotion to lieutenant colonel (LTC) by a special selection board (SSB).

2.  The applicant states upon notification of his non-selection for promotion to LTC, he contacted the promotions office to determine the reason.  He was informed that the probable reason for his non-selection was the absence of recent officer evaluation reports (OER's) in his official military personnel file (OMPF).  He claims his career manager advised him that because he was not in an Individual Mobilization Augmentee position and was attached only for the purpose of training and points, evaluation reports were not required.  Based on this information he felt confident he had a competitive promotion packet before the LTC promotion board.

3.  The applicant provides:

* civilian resume
* chronology of military service
* Request for Reserve Component Assignment or Attachment, dated 25 September 1995
* U.S. Army Reserve Personnel Center attachment orders to Aberdeen Proving Ground, Maryland, for the purpose of training/points only effective 1 April 1996
* U.S. Army Reserve Personnel Command (ARPERSCOM) notification of promotion status memorandum, dated 9 May 2000
* ARPERSCOM memorandum, subject:  Options Upon Non-selection for Promotion after Second Consideration, dated 23 May 2000
* five DA Forms 7222 (Senior System Civilian Evaluation Reports) covering the periods from 1 November 1995 through 31 October 2000
* five DA Forms 7222-1 (Senior System Civilian Evaluation Report Support Form) covering the periods from 1 November 1995 through 31 October 2000
* miscellaneous awards, certificates, and letters of appreciation

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The civilian performance evaluations and support forms submitted by the applicant will not be addressed.  There are no regulatory provisions to allow civilian performance evaluation to be considered by Army promotion selection boards and these types of reports are not authorized for filing in the OMPF.

3.  The applicant's military records show he was appointed as a second 
lieutenant in the U.S. Army Reserve on 29 May 1977.

4.  The applicant was promoted to major on 12 May 1991.

5.  Effective 1 April 1996, the applicant was attached to the Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, for the purpose of training/points only.

6.  On 8 September 1999, he was considered but not selected for promotion to LTC by the 1999 Reserve Components Selection Board (RCSB).

7.  On 23 May 2000, the applicant was notified of his second non-selection for promotion to LTC.  In lieu of mandatory retirement, the applicant elected to accept an appointment in the Maryland Army National Guard as a chief warrant 
officer two on 15 August 2000.

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he did not receive an OER for the period 1 May 1991 through 31 May 2000 in item 34 (Record of Assignments).

9.  On 20 January 2006, the applicant was transferred to the Retired Reserve.
 
10.  During the processing of this case, an advisory opinion was obtained from the Special Actions Branch, U.S. Army Human Resources Command (HRC), St. Louis, Missouri.  This opinion recommends denial of the applicant's request.  It indicates the applicant was considered and not selected for promotion to LTC by the 1998 and 1999 RCSB's and the specific reasons for his non-selection are not known.  However, because the applicant's last OER seen by the RCSB was for 1991, it may have been a contributing reason for his non-selection.

11.  On 24 February 2010, the applicant was provided a copy of the HRC advisory opinion in order to have the opportunity to reply to or rebut its contents.  To date, the applicant has failed to respond to the opinion, but he did submit OER's for periods subsequent to the RCSB's in question.

12.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  It specifies promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the records 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 also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for promotion reconsideration for LTC by an SSB has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  By regulation, promotion reconsideration is authorized only in cases of erroneous non-consideration or material error which existed in the record at the time of consideration.

3.  Promotion is based on the best-qualified officer method of selection and the specific reasons for non-selection are not identified by the RCSB or known.  Any reasons for non-selection provided to the applicant by his career advisors were only educated guesses.

4.  There is no evidence of record that supports the theory the absence of an OER for a period of active duty performed for points only was the basis for his non-selection by two consecutive RCSB's.  Further, there is no evidence to show the applicant met the regulatory criteria to warrant submission of a report during the time he was attached for the purpose of training/points.  Therefore, the fact evaluations were never submitted does not equate to missing reports and does not satisfy the definition of a material error.  Without such evidence, regulatory compliance is assumed.

5.  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 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)                                         AR20090017407



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ABCMR Record of Proceedings (cont)                                         AR20090017407



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