RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 March 2006
      DOCKET NUMBER:  AR20050008844


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas H. Reichler            |     |Member               |
|     |Mr. Scott W. Faught               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request for
promotion reconsideration by a Special Selection Board (SSB).

2.  The applicant arguments and supporting documents are provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be reconsidered for
promotion by a new SSB, and if promotion is denied, that he be provided the
rationale for his non-selection.

2.  Counsel states, in effect, that based on a recommendation of the Army
Board for Correction of Military Records (ABCMR), the applicant’s corrected
records were sent to an SSB for promotion reconsideration under the
criteria used by the Fiscal Year (FY) 2000 Lieutenant Colonel (LTC)
Promotion Selection Board (PSB).  The applicant was notified that he was
not selected for promotion by the SSB in an Army Personnel Command
(PERSCOM), now known as Army Human Resources Command (HRC), memorandum that
simply stated that “Regretfully, the board did not recommend you for
promotion”.  Counsel claims this is insufficient rationale because the
reasons for the denial are unknown and opaque to scrutiny by the ABCMR, the
applicant or a Federal court upon judicial review.

3.  Counsel claims that in the opinion of the Federal District Court for
the District of Columbia, as outlined in two cases provided, a supplemental
board must provide a rationale for its decision.  He claims no rationale
was provided by the SSB in the applicant’s case and as a result the SSB
results were defective.  Counsel further claims that the applicant is
entitled to a new SSB where, if denied, a rationale is provided for the
denial.

4.  Counsel provides the PERSCOM SSB denial memorandum and the two court
opinions he cites in his statement in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous considerations of the applicant's case by the
ABCMR in Docket Number AR2001056368 on 29 January 2002 and in Docket Number
2003099314 on 28 September 2004.

2.  In his first application to this Board, the applicant requested that an
Officer Evaluation Report for the period 7 May 1996 through 9 May 1997 be
made a part of his record, and that his record be placed before a SSB for
reconsideration for promotion to LTC under the criteria used by the FY 2000
PSB.  The Board found merit in the applicant’s case and recommended the
requested relief be granted.

3.  On 10 January 2003, the Deputy Chief, Promotion Branch, PERSCOM
notified the applicant that he had been reconsidered for promotion by a
Department of the Army (DA) SSB under the same criteria and instructions
established for the regularly constituted FY 2000 LTC PSB that recessed on
30 March 1999.  This official further stated that “Regretfully, the board
did not recommend you for promotion.  Your promotion status as determined
by the regularly constituted board remains unchanged”.

4.  In his second application to this Board, the applicant again requested
promotion reconsideration to LTC by a SSB under the criteria used by the FY
2000 PSB because his Officer Records Brief (ORB) did not reflect that he
had been redesignated into Functional Area 49 (Operations Research/Systems
Analysis).  The Board found insufficient evidence to support granting the
requested relief.

5.  Counsel now provides two court decisions on United States Air Force
(USAF) officers given in the United States District Court for the District
of Columbia.  In the first case, a USAF LTC filed suit seeking a direct
appointment to the War College.  The court denied the plaintiff’s request
for a direct appointment to the War College, and granted the plaintiff’s
request for a reasoned decision from the SSB that reconsidered his request
to attend the senior service school.

6.  In the second court case, a USAF LTC filed suit challenging the USAF’s
refusal to promote him to colonel.  The court found it was powerless to act
on the plaintiff’s request for direct promotion, and that the authority to
promote him rested exclusively with the USAF.  However, it did remand the
case to the USAF, which it indicated was free to reaffirm its previous
decision to keep the plaintiff at his present rank; however, in order to do
so, the USAF would have to articulate its reasons for leaving him there.

7.  The United States Court of Appeals for the Federal Circuit held in
Richey v. United States, 322 F .3d 1317 (2003) (at 1326) that the courts
"could not require SSBs to meet additional reporting requirements beyond
those that were mandated by the statute."  The court further held that
absent record evidence to rebut the presumption of regularity suggesting
the agency's decision was arbitrary or capricious, the agency or SSB is not
required to provide an explanation of its decision.

8.  Army Regulation 600-8-29 (Officer Promotions) prescribes the Army's
officer promotion policy.  This regulation stipulates that one of the
following methods of selection as directed in the MOI will be used by PSBs:

      (a) The "fully qualified" method when the maximum number of officers
to be selected, as established by the Secretary, equals the number of
officers above, in, and below the promotion zone. Although the law requires
that officers recommended for promotion be "best qualified" for promotion
when the number to be recommended equals the number to be considered, an
officer who is fully qualified for promotion is also best qualified for
promotion. Under this method, a fully qualified officer is one of
demonstrated integrity, who has shown that he or she is qualified
professionally and morally to perform the duties expected of an officer in
the next higher grade. The term "qualified professionally" means meeting
the requirements in a specific branch, functional area, or skill.

      (b) The "best qualified" method when the board must recommend fewer
than the total number of officers to be considered for promotion. However,
no officer will be recommended under this method unless a majority of the
board determines that he or she is fully qualified for promotion. As
specified in the MOI for the applicable board, officers will be recommended
for promotion to meet specific branch, functional area or skill
requirements if fully qualified for promotion.

9.  Chapter 7 of the officer promotions regulation contains guidance on
SSBs.  It states that SSBs are governed by the same instructions provided
to the boards that considered or should have considered an officer for
promotion.  Paragraph 7-4 contains guidance on SSB notification.  It states
that officers considered or reconsidered by an SSB will be informed of the
results, in writing, through their chain of command.  Notice will be sent
on approval of the board's recommendations by the appropriate authority.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant is entitled to promotion
reconsideration by a second SSB because he was not provided a full
explanation of why he was not selected by the SSB in 2003, and the
supporting evidence he provided, were carefully considered.  However, the
evidence submitted provides an insufficient evidentiary basis to support
granting the requested relief.

2.  By regulation, PSBs will base their recommendations on impartial
consideration of all officers in the zone of consideration as instructed in
the MOI provided them by the Secretary of the Army.  PSBs select officers
for promotion using either the "fully qualified" or "best qualified"
method.  The "fully qualified" method is used when the maximum number of
officers to be selected equals the number of officers in the zones of
consideration.  The "best qualified" method is used when the PSB must
recommend fewer than the total number of officers to be considered for
promotion.

3.  In the applicant's case, the "best qualified" method was used, and in
the collective judgment of both the original PSB members and the SSB
members that considered his record, he was not found to be among the "best
qualified" officers based on the criteria established by the Secretary of
the Army MOI.

4.  The governing regulation also requires PSB members to keep confidential
their reasons for recommending or not recommending any officer considered.
As a result, the specific reasons for the applicant's non-selection were
not provided and are not available.  However, there is a rational
explanation for his non-selection, which is that in the collective best
judgment of the PSB and SSB members, although he was fully qualified, he
simply was not competitive with those officers in the zones of
consideration who were selected for promotion under the "best qualified"
method.

5.  In view of the facts of this case, it is clear the applicant was fully
and fairly considered for promotion by the SSB that reviewed his records
for promotion.  Further, the promotion non-selection notification he
received was the same that is provided to every officer who is not selected
for promotion.  There was no evidence of irregularity in the SSB
proceedings, nor is there evidence the applicant has been denied discovery
concerning the record before the SSB.  As a result, notwithstanding the
court decisions rendered on the USAF officers provided by counsel, there
does not appear to be any error or injustice related to either the
promotion consideration or non-selection notification processes in this
case. Thus, there is an insufficient evidentiary basis to amend the
original Board decision in his case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA  _  __THR  _  __SWF__  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 AR2003099314, dated 28 September 2004.




                                  _____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008844                           |
|SUFFIX                  |                                        |
|RECON                   |AR2003099314    2004/09/28              |
|DATE BOARDED            |2006/02/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/05/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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