PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002068379


         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Raymond V. O'Connor, Jr.		Member
Ms. Barbara J. Ellis		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, in effect, promotion reconsideration to major.

3. The applicant states that on 18 October 2001, he was notified that he had been granted a waiver by the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) for his military education and that his request for a special selection board (SSB) had been approved. He also states that on 7 January 2002, he was notified that the Chief, Office of Promotions, did not have the authority to grant him this waiver and that he had no recourse. He believes that this is an injustice to him and that his records should be allowed to go before the SSB. He submits copies of his electronic mail notification of his approval for a waiver, his civilian education diploma, a letter dated 4 September 2001 from his commander to the Office of Promotions, his letter dated 15 February 2001 to the Office of Promotions, his Service School Evaluation Report dated 1 April 2001, and his honor graduate certificate for the Signal Officer Advanced Course (OAC) in support of his application.

4. The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 12 June 1987.

5. He was promoted to first lieutenant effective 2 August 1989 and to captain effective 1 August 1993. His maximum time in grade (MTIG) date for promotion to major was 31 July 2000.

6. He was considered and not selected for promotion to major by the 2000 Reserve Components Selection Board (RCSB) that convened on 7 March 2000. He was not qualified for promotion based on the lack of the required military education, the OAC.

7. On 15 February 2001, he requested a waiver of the military education. He stated that he has been the sole income earner since 1994 for his wife and himself; that in March 1994, his wife suffered an accident, which resulted in her having three separate back surgeries between 1995 and 1999; that he had to remain in his immediate area due to both proximity to doctors and availability of work; that during this time he was selected for, and served as a company commander for a 3-year period; and that with all this time spent caring for his wife, working his civilian job and participating in his Reserve unit, it was impossible for him to complete his OAC until April 2001.

8. He was considered and not selected by the 2001 RCSB that convened on 6 March 2001. He was again not selected based on the lack of the OAC completion.

9. On 1 April 2001, he completed the Signal Branch OAC.

10. On 18 October 2001, the Chief, Office of Promotions, Reserve Components, approved his request and granted a waiver for the military educational requirement for promotion to major for the 2001 criteria.

11. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material, which existed in the record 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.

12. The regulation also specifies that records of officers will be referred for SSB action when the Office of Promotions, determines that a material error caused the non-selection of an officer by a promotion board. The Office of Promotions will not use a special board when an administrative error was immaterial, or the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the official military personnel file. A special board will also not be used if the officer could have taken timely corrective action such as notifying the Office of Promotions of the error and providing any relevant documentation.

13. The regulation also specifies that the Chief, Office of Promotions, is the approval authority for all requests for exception to non-statutory promotion requirements and that requests must contain complete justification. The regulation does not specify that only current year criteria will be considered nor that past year criteria will be considered when an exception has been granted with referral to an SSB.

14. The regulation also specifies that completion of an OAC not later than the day before the selection board convene date is required for promotion qualification to major.

15. The Chief, Special Actions, Office of Promotions, expressed the opinion that based on conflicts with the applicant's civilian education, he had not enrolled in, or completed an OAC prior to his second mandatory consideration. He then requested an exception (waiver) of the military educational requirement, based on extenuating circumstances, and was granted a waiver for criteria year 2001,


by the Chief, Office of Promotions, in accordance with Army Regulation 135-155. The applicant was then to be reconsidered under the 2001 criteria by an SSB to convene in December 2001, the basis being the military education waiver. The waiver does not guarantee selection and if selected by the SSB, the earliest date for promotion would be the date the applicant completed the OAC.

16. He further stated that just prior to the SSB review, the Chief, Department of the Army (DA) Secretariat, expressed the opinion that military education waivers, as referred to in Army Regulation 135-155, could only be granted to current criteria and not for any past criteria. Further guidance was requested from the Deputy Chief of Staff for Personnel (DCSPER) for a more definitive determination. The DCSPER's determination agreed with that of the DA Secretariat, and stated that the Office of Promotions, should cease and desist, and determined that education waivers for past criteria would not be granted. The applicant, as well as many other officers that had already been granted waivers, were then removed from the SSB review based on the aforementioned determination. All of the officers were then notified of the determination and that they were no longer to be reconsidered by an SSB.

17. The Chief further opined that even though the applicant has not completed his military education in a timely manner, it is an injustice to the applicant to have been granted a waiver, assigned to an SSB and then removed from the review. At the time the decision was made to grant the waiver it was known to be a valid and proper decision. Cases such as these have previously been processed. The aforementioned determination should have been put into effect only after the instant cases already approved had been boarded. The regulation only addresses that exceptions may be granted, it does not specify current or past criteria. Based on the information presented, it is recommended that the applicant's request be approved and his records be considered by an SSB under 2001 criteria.

18. The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 17 June 2002 and he concurred on 10 July 2002.

CONCLUSIONS:

1. The Board concludes in this case that the applicant is entitled to promotion reconsideration to major under 2001 criteria by an SSB based on the education waiver previously granted him on 18 October 2001.

2. The Board notes that the Chief, Office of Promotions, is the approving authority for granting all requests for exception to non-statutory promotion requirements and referral for SSB action when that office has determined that a


material error caused the non-selection of an officer by a promotion board under past and current criteria. As in previous cases such as this, other officers have been granted waivers with appropriate consideration by SSB’s.

3. The Board also notes that the applicant was granted a waiver and scheduled for an SSB and subsequently removed from review; however, the determination to cease and desist this practice does not appear to appropriately evaluate the cases already having been approved. It also notes that the determination appears to be based on whether or not an exception is granted for current or past criteria; however, pertinent regulations do not specify current or past criteria.

4. The Board also concludes that as a matter of equity, the applicant's approved request for a waiver and approval for reconsideration by an SSB should be granted. The determination to cease granting waivers for past year criteria was made after approval for reconsideration. The decision to disapprove the applicant's reconsideration was administrative, through no fault of the applicant, and he should not be penalized.

5. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing a waiver for the educational requirement for promotion to major, effective 12 September 2001, for the individual concerned.

2. That, following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration under 2001 criteria.

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

4. That if selected for promotion and the applicant was separated, his records be further corrected to show:

         a. that his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve;

         b. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of 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

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

5. That if not selected, the applicant be so notified.

BOARD VOTE:

_JHK___ _BJE____ _RVO___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Joann H. Langston
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR200206879
SUFFIX
RECON
DATE BOARDED	20020822
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.