MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001058654

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi	Chairperson		Chairperson
Mr. Harry B. Oberg	Member		Member
Mr. Arthur A. Omartian	Member		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, reconsideration for promotion to lieutenant colonel and that he be afforded the opportunity to remain in the Ready Reserve in order to complete 20 years of qualifying service for retirement.

APPLICANT STATES: That he was non-selected for promotion to lieutenant colonel in the US Army Reserve due his non-completion of Command and General Staff College (CGSC). He also states that his Academic Evaluation Report (AER) states that he successfully completed 65 percent of CGSC; however, he did not complete the course. In support of his application, he submits a personal statement and a copy of his DA Form 1059 (Service School Academic Evaluation Report).

He states that he was enrolled in the CGSC by correspondence in 1989 and was later selected to attend the resident course at Fort Leavenworth, Kansas. However, his orders were amended to attend the CGSC at the School of Americas (SOA), Fort Benning, Georgia as an accredited school for military education level (MEL) 4. He did not agree and inquired to the US Total Army Personnel Command (PERSCOM) to reconsider this action. In January 1991,
he began CGSC at the SOA. While attending CGSC, he was under personal difficulties with divorce and was disillusioned with the quality of instruction at SOA.

In August 1991, he completed 65 percent of the CGSC with a class standing
of 7 of 38 students. He was disenrolled from the course due to driving under the influence (DUI) and received a letter of reprimand (LOR). He was selected for separation from the Army by the 1991 Majors Reduction in Force (RIF) Board.

In 1997, he was informed of his nonselection for promotion to lieutenant colonel due to his LOR for DUI. In 1998, he received a second notice of his nonselection for promotion and was later transferred to the Inactive Retired Reserve because of his nonselections. In May 2000, he prepared a Warrant Officer Accession packet for entry into the Army National Guard based on a personnel message seeking retired officers in the grades of 0-4, 0-5, and warrant officers for return
to active duty. He was informed that he was ineligible for the program due to his nonselection for promotion based on education requirements. He was later advised to contact promotions at the Army Reserve Personnel Command
(AR-PERSCOM) for additional information. AR-PERSCOM informed him that his AER should not have been written in the manner it was prepared, and that he was not entitled to partial credit for CGSC.






He stated that he was led to believe that he had met the requirements for completion of CGSC based on preparation of his AER, and based on that decision; he decided not to complete the CGSC by correspondence. He was never truly informed or advised as to why he was non-selected. However, if he had been informed that his non-selection was due to education, he would have enrolled in CGSC correspondence and would have completed 50 percent of the course by the time the next promotion board convened. He was made to believe that his nonselection was due to his LOR which was an unjust action committed against him.

In December 2000, he contacted the Inspector General (IG) at the Training and Doctrine Command (TRADOC) for assistance and was referred to the IG at
AR-PERSCOM. He contacted AR-PERSCOM and explained his situation.
AR-PERSCOM conducted an investigation and determined that he had been fairly treated and had no cause for relief. However, he disagrees with the findings of AR-PERSCOM and feels that his nonselection should not be based on his MEL status. He admits to making a mistake and was informed that he did not qualify for retention in service in order to obtain 20 years of qualifying service.

EVIDENCE OF RECORD: The applicant's military records show he was commissioned as second lieutenant in the Regular Army on 4 August 1978.

He was promoted to the rank of major/0-4 on 1 July 1990.

The applicant provided a copy of his AER for the period 15 January 1991 to 14 August 1991, which shows that he failed to achieve course standards and completed 60 percent of the CGSC before being dropped for disciplinary reasons.

A Mandatory Release or Discharge from Active Duty memorandum was issued
to the applicant on 29 May 1992, which notified him that he was selected for involuntary separation from active duty by the Fiscal Year 1992 Majors RIF
Board. It also stated that he would be separated from active duty no later than 29 September 1992.

On 15 September 1992, the applicant was discharged under the provisions of Army Regulation 635-100, paragraph 3-58, due to reduction in authorized strength.

He was appointed as a Reserve commissioned officer in the rank of major effective 16 September 1992, with his original date of rank of 1 July 1990.




Informal coordination with the staff of the Promotions and Notifications Branch, Office of Reserve Components Promotions, revealed that the applicant was considered, but was not selected, for promotion to lieutenant colonel by the 1996 Reserve Component Selection Board (RCSB). He was again not selected by the 1997 RCSB because he did not meet military education requirements. The applicant was subsequently considered for promotion to lieutenant colonel by the 1998 RCSB, but was not selected again because he did not meet military education requirements.

The applicant’s records show that he had not met the military educational requirements prior to the convening dates of the RCSB’s.

On 7 December 1998, the applicant was released from the USAR Control Group (Reinforcement) and was assigned to the Retired Reserve under the provisions of Army Regulation 140-10, due to his removal from an active status.

Information provided by the CGSC staff at Fort Leavenworth, Kansas revealed that students who are disenrolled from CGSC for failure to achieve course standards are not authorized to reenroll.

A copy of the applicant’s chronological Statement of Retirement Points
(Summary Points/Inquiry/Update) was provided by AR-PERSCOM to a staff member of the Board. The document indicated that the applicant had completed 16 years of qualifying service for retirement purposes and over 14 years of active duty service.

Army Regulation 635-100 prescribes policy and procedures governing transfer and discharge of Army officer personnel from the Active Army. Paragraph 3-58
provided for the involuntary release of officers from active duty for misconduct, moral or professional dereliction, and/or when their degree of efficiency and manner of performance requires release from active duty or elimination from the service.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to lieutenant colonel an individual must have completed 50 percent of the CGSC, 7 years of time in grade (TIG) as a major, and an officer advanced course (OAC) on or before the convening date of the respective promotion board.




Title 10, U.S. Code, section 14506, states that an officer in the grade of major
who twice fails to be selected for promotion to lieutenant colonel will be removed from an active status when he completes 20 years of commissioned service.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or,
if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.

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. The evidence of record shows that the applicant was disenrolled from the CGSC due to his DUI and was involuntary separated from active duty under the provisions of Army Regulation 635-100, paragraph 3-58, due to reduction in force.

2. The applicant accepted a commission as a major in the USAR where he continued to serve. He was properly considered for promotion by the 1996,
1997, and 1998 RCSB’s. The Board also notes that he was not selected for promotion and that he was subsequently removed from the Ready Reserve based on his nonselections. The Board further notes that, as a major, he was
required to complete 50 percent of the CGSC prior to the convening date of the RCSB’s.

3. There is no evidence of record, and the applicant has provided no evidence,
to show that his disenrollment from CGSC was in error or unjust. Based on the reason for his disenrollment he was not eligible at anytime thereafter to reenroll to complete 50 percent of CGSC. Therefore, the applicant is not entitled to reinstatement to the Army Reserve or promotion reconsideration to lieutenant colonel.

4. 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.




5. 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

__ca___ ___ho__ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058654
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011030
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19981208
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310
2.
3.
4.
5.
6.