MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001057264

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

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Joe R. Schroeder		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that his retirement orders be amended to read that he was retired for reaching his maximum years of service; that he be awarded unit training points for the period June1993 to October 1993; that he be considered for promotion to the rank of colonel (COL) under the criteria used in July 1993; and that he be placed on the Retired List in that rank and pay grade.

APPLICANT STATES: In effect, that at the time he was transferred to the United States Army Reserve (USAR) Retired Reserve he was unaware of the policy that would have allowed him to request a waiver to continue to serve in the active USAR until his mandatory retirement date (MRD) of 27 October 1993, which was authorized under the provisions of exception 13, paragraph 7-12, Army Regulations 140-10. He stated that he was reassigned to the Retired Reserve on 3 June 1993, which was the third anniversary of his promotion to lieutenant colonel (LTC) based on his not having completed Command and General Staff College (CGSC). He also indicates that in March 1993, he requested reenrollment in the in CGSC in order to complete the remaining 50 percent of the course he had not finished prior to his MRD but was not granted the time to complete the course. In addition, he claims that he was notified in April 1993 that he was in the zone for consideration for promotion to COL/0-6 and had he been granted the waiver to remain until his MRD he would have had the opportunity to complete CGSC by the deadline for submission of his promotion packet, which was 20 July 1993. He also indicates that in March 2001, while discussing a correction to his retirement points with an Army Reserve Personnel Command (ARPERSCOM) official, he was asked why he received retirement orders so close to his MRD and why a waiver, which was authorized for up to six months, had not been granted. Further, he stated that this was the first time he became aware that a waiver was authorized. At that time he reviewed his records and discovered he had never been afforded the opportunity for a waiver. In support of his application, he submits a copy of his retirement order, dated 9 February 1993; a memorandum he submitted, dated 12 February 1993, in which he stated his intention to complete CGSC prior to the third anniversary of his promotion to LTC; a CGSC enrollment/reenrollment form (CGSC Form 59-R); and an ARPERSCOM memorandum, dated 22 April 1993, Subject: Consideration for Promotion in the USAR.

EVIDENCE OF RECORD: The applicant's military records show:

On 28 September 1965, he was commissioned a second lieutenant in the USAR and concurrently entered active duty in that status. He served on active duty until 19 August 1970, when he was honorably separated, in the rank of captain, and transferred to the USAR. He continued to serve in an active status in the USAR until he was transferred to the Retired Reserve, effective 3 June 1993, in the rank of LTC. At that time his MRD had been established as 27 October 1993, based on his age and appointment date.
On 9 February 1993, the applicant’s retirement order was published by the United States Army Reserve Command (USARC), Fort McPherson, Georgia. This order verifies that he was transferred to the Retired Reserve, effective
3 June 1993, based on his not having completed CGSC by the third anniversary of his promotion to LTC.

On 12 February 1993, the applicant submitted a memorandum to the USARC, in which he stated his intention to complete CGSC prior to the third anniversary of his promotion to LTC, which would fulfill the requirements of paragraph 7-5b (2), Army Regulation 140-10.

On 10 March 1993, the applicant completed a CGSC Form 59-R, in which, he requested reenrollment to the school of corresponding studies to complete his remaining CGSC academic requirements.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that the educational requirement for individuals selected for promotion to LTC is 50 percent completion of CGSC.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers. Chapter 7 contains guidance on mandatory removal from an active USAR status and paragraph 7 outlines the policy for mandatory removal upon reaching the maximum length of service. It states, in pertinent part, that a LTC is to be removed after 28 years of commissioned service if they were under the age of 25 at commissioning or they have reached their 53^rd birthday if they were older than 25 on the date of their initial appointment.

Paragraph 7-5b(2) of the same regulation states, in pertinent part, that CGSC will be completed within 3 years of the date an officer is promoted or appointed to LTC. Paragraph 7-12m, of the same regulation provides for requesting a waiver of this requirement if it appears they cannot complete CGSC within 3 years for justified reasons. This waiver request must be submitted not later than 60 days prior to the 3 year anniversary date and must be completely justified and will only be approved when it is in the best interest of the Army.

Army Regulation 600-8-29 provides the policy for determining if individuals are entitled to promotion reconsideration by a Special Selection Board (SSB). It states, in pertinent part, that eligibility for review by an SSB requires that a determination be made that a material error existed and had been corrected prior to the time the officer was considered by a board that failed to recommend promotion. In addition, correction of the error would result in a reasonable chance the officer would have been recommended for promotion.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. By regulation, USAR officers promoted to LTC must complete CGSC not later than 3 years after the effective date of their promotion. The evidence of record confirms the applicant was promoted to LTC on 4 June 1990, and that he had only completed 50 percent of CGSC at the time. It also verifies that he did not complete the remaining 50 percent of his CGSC requirement within 3 years of that promotion date and as a result he was transferred to the Retired Reserve on 3 June 1993.

2. The Board notes the applicant’s contention that he was unaware and was not afforded the opportunity to request a waiver to complete CGSC prior to his MRD. However, by his own admission he was aware of the requirement to complete CGSC within 3 years of his promotion to LTC. In addition, the record makes clear he committed to complete CGSC within the allotted 3 year period of time in a memorandum he submitted to USARC in February 1993.

3. While the applicable regulation does allow members to submit waivers requesting an additional 6 months to complete CGSC, it also is clear that these regulatory waiver provisions require a member to provide justified reasons for a waiver and stipulate that waivers are only approved if they are in the best interest of the Army. Lacking any evidence of record to show that approval of a waiver for the applicant would have been in the best interest of the Army and given he has failed to provide any independent evidence to show he had justified reasons for not fulfilling the commitment he made in writing to complete CGSC within the allotted time, the Board finds granting a waiver at this time is not warranted.

4. By regulation, in order to eligible for promotion reconsideration by a SSB, there must be evidence that a material error existed in a member’s record at the time he was considered by a board that failed to recommend him for promotion.

5. The evidence of record clearly shows that the applicant was never considered for promotion to COL. In addition, since the Board finds no error or injustice related to the applicant’s transfer to the Retired Reserve, it concludes there is no basis for granting the applicant’s request to be considered for promotion to COL by an SSB.

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.

7. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__WTM__ __REB __ __JRS __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057264
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/14
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	135.00
2.
3.
4.
5.
6.