PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 August 2001
         DOCKET NUMBER: AR2001055753


         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. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Thomas F. Baxter		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reconsideration of his previous appeal to be considered by a special selection board for promotion to major.

3. The applicant states, in effect, that his record was incomplete when it was considered by the 1994 and 1995 Reserve Component, Selection Boards (RCSB) as it did not show completion of either his civilian or military education military education requirements.

4. The Memorandum of Consideration reflecting the Board’s 8 June 2000 review of the case (AR1999034881) is incorporated herein by reference as if wholly set forth.

5. The applicant submits a copy of his academic transcript from the University of Tennessee, Knoxville. This document shows that the applicant was awarded a Bachelor of Science Degree on 15 December 1989.

6. The applicant also submits a copy of a Service School Academic Evaluation Report (DA Form 1059) showing successful completion of the AMEDD Officer Advanced Course, Phase II, on 1 July 1994.

7. These documents were not previously available to the Board and constitute new evidence that requires Board review.

8. The applicant’s record shows he was appointed as a second lieutenant on 30 June 1978. He was promoted to first lieutenant effective 21 July 1984 and captain effective 15 April 1988. He was considered and not selected for promotion to major by the 1994 and 1995 RCSBs. The promotion board did not see verification that he completed the required civilian and military education. He was honorably separated from the Kentucky Army National Guard in the rank of captain effective 17 July 1995. He was honorably discharged from the USAR effective 26 February 1997.

9. Incorporated in this Board’s prior review was an opinion from the Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM. They stated that when the 1994 and 1995 RCSBs considered the applicant’s file there was no verification that he had completed the required civilian and military education; therefore, he was not selected for promotion. Based on the fact the applicant did not send in copies of his education with his DD Form 149, he was not eligible for special board consideration at that time. In their opinion it was stated that if the applicant provided verification of his education, he could request a SSB for promotion reconsideration. Based on the facts presented, at that time, PERSCOM recommended that the applicant’s request be disapproved.


10. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous non-consideration or material error that 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 schooling. The regulation also requires completion of an officer advanced course for promotion qualification to major.

11. Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence had been submitted.

CONCLUSIONS:

1. The staff of the Board has determined that the evidence submitted by the applicant was not previously available to the Board and as such this case should be referred to the Board for additional review.

2. The applicant has provided copies of documents showing that he had completed both of his civilian and military training requirements prior to the convening of the 1994 and 1995 RCSB.

3. While it can not be determined why these documents were not previously a part of the applicant’s records, inasmuch as the stated reason for his non-selection was the absence of this documentation of his education, the Board concludes it would be in the interest of equity and justice to grant relief in this case.

4. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing the civilian and military education of the individual concerned on the official military personnel file (OMPF) microfiche.

2. That, following administrative implementation of the foregoing, his records be submitted to a duly constituted special selection board for the years of 1994 and 1995.

3. That, if selected, his records be further corrected by showing:

         a. that he was promoted to the next higher grade on his date of eligibility therefor, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion;

         b. that his discharge is void and of no force or effect; that he be credited with qualifying service;

         c. that he be granted Reserve retirement points equal to the points he earned on the average for the last three complete retirement years prior to his now-voided discharge to the date of his return to the active Reserve;

         d. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the date of his now-voided discharge to the date of his return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         e. that all documents related to his now-voided non-selection for promotion, and his discharge or transfer be expunged from his official military records.

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4. That, if not selected, the applicant be notified of the results of his reconsideration for promotion.


BOARD VOTE:

_JH____ ___TFB__ __JTM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___ June Hajjar_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001055753
SUFFIX
RECON
DATE BOARDED	20010816
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.