PROCEEDINGS


         IN THE CASE OF:
       

         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2002069404


         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. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Harry B. Oberg		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 during the months from October 2000 to January 2001, she attempted to obtain approximately 12 sub-courses to complete the correspondence phase of the Adjutant General Officer Advance Course (OAC). An agent of the service school advised her that she would have to wait for some of the sub-courses. In January 2001, she informed her personnel management officer (PMO) of the difficulty she was encountering completing Phase I of the OAC. The PMO advised her to continue completing the sub-courses as received and enroll in the next available Phase II course, which was in June 2001. The applicant also states that she enrolled in Phase II on 10 June 2001 and passed the course. She submits a copy of the Active Enrollment Sub-Course Status Sheet, an official transcript from the Philadelphia University, her Service School Academic Evaluation Report dated 22 June 2001 for the OAC and a letter dated 3 January 2002 from the Chief, Office of Promotions, Total Army Personnel Command (PERSCOM) in support of her application.

4. The applicant’s military records show that she was appointed in the Reserve, Adjutant General’s (AG) Corps as a second lieutenant effective 16 May 1986.

5. Her records show she completed her baccalaureate degree on 18 May 1986.

6. She was promoted to first lieutenant effective 20 May 1989 and to captain effective 26 May 1993.

7. She was considered and not selected for promotion to major by the 2000 and 2001 Reserve Components Selection Boards (RCSB's). The boards convened on 6 April 2000 and 5 April 2001, respectively. She was not qualified for promotion based on the lack of the required military education, completion to an OAC.

8. She completed the OAC effective 22 June 2001.

9. On 24 October 2001, she was granted a military education waiver. She was also approved for consideration by a special selection board (SSB) under 2001 criteria, scheduled for March 2002. She was also advised that she had been granted SSB consideration based on her records not showing her highest civilian education (baccalaureate degree) and an officer evaluation report for the period ending 16 October 2001.

10. On 3 January 2002, the Chief, Office of Promotion, PERSCOM, advised the applicant that she had been removed from that SSB consideration based on coordination with the Deputy Chief of Staff for Personnel (DCSPER).



11. Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, 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 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.

13. The regulation also specifies that a baccalaureate degree and completion of the OAC is required for promotion to major.

14. On 26 March 2002, the Chief, Special Actions, Office of Promotions, expressed the opinion that the applicant was appointed as a 2LT and completed the Officer Basic Course in 1987, and was thereafter eligible to enroll in an OAC. She was promoted to captain on 26 May 1993 and her first mandatory board consideration for major was in March 2000; she was non-selected for not meeting the military or civilian education requirements of completion of an OAC or having completed a baccalaureate degree by the convening date of the board. She was again non-selected by the 2001 board for the same reason.

15. He also stated that the applicant originally enrolled in the AG OAC in 1996; however, she did not complete the course. She re-enrolled in November 1999 and completed the correspondence portion in May 2001, based on the fact the applicant had significant problems with the Army Correspondence Course Program in receiving her books in a timely manner. This did not allow her to attend OAC Phase II, the active duty phase, until 6 June 2001, which was after the convening date (6 March 2001) of the 2001 promotion board. The applicant completed Phase II on 22 June 2001. It is not known why the applicant did not request a waiver prior to the convening date of the 2001 board. She did however, request a waiver after the board due to the extenuating circumstances, and was granted a waiver for criteria 2001, by the Chief, Office of Promotions, in accordance with Army Regulation 135-155, paragraph 2-15b. The applicant was then to be considered under the 2001 criteria by an SSB to convene in April 2002, the basis being the military education waiver, providing proof of a baccalaureate degree and a missing officer evaluation report ending 16 October 2000. If selected by the SSB, the earliest date for promotion would be the date she completed the OAC, 22 June 2001, providing she met all other eligibility requirements.

16. He also stated that just prior to the SSB, the Chief, DA Secretariat, Office of Promotions, Reserve Components, expressed an opinion that military education waivers, as referred to in Army Regulation 135-155, could only be granted to a current criteria and not for any past criteria. Further guidance was requested from the 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 it was, therefore, determined that education waivers for past criteria would not be granted. The applicant, as well as many other officers who had already been granted waivers, was then removed from the SSB consideration based on the aforementioned determination. All of the officers were then notified of the determination.

17. He also stated that even though the applicant had not completed his military education in a timely manner, it is an injustice to the applicant to have been granted a waiver, scheduled for an SSB and then removed from the board. At the time the Chief, Office of Promotions, made the decision to grant the waiver it was known to be a valid and proper decision. Cases such as these have been previously processed. The aforementioned determination should have been put into effect after any 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 her records be considered by an SSB.

18. The opinion was forwarded to the applicant for her acknowledgment/rebuttal on 22 April 2002. She did not respond.

CONCLUSIONS:

1. The Board concludes in this case that based on the education waiver previously granted to her on 24 October 2001, the applicant is entitled to promotion reconsideration to major under 2001 criteria by an SSB.

2. The Board notes that the Chief, Office of Promotions, is the approving authority for granting all requests for exceptions 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 is also noted 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 notes that the applicant was also granted SSB consideration based on providing proof of a baccalaureate degree and a missing officer evaluation report ending 16 October 2000, which have been provided to the Office of Promotions. She is also entitled to SSB reconsideration on that basis.

5. 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 accepted. The determination to cease granting waivers for past year criteria was made after the approval of her reconsideration. The decision to disapprove and withdraw the applicant's reconsideration was administrative, through no fault of the applicant, and she should not be penalized.

6. 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 an approved waiver for the educational requirements for promotion to major, effective 24 October 2001, and by including the civilian education and all of the officer evaluation reports of the individual concerned on her OMPF microfiche.

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

3. That, if selected, her records be further corrected by showing she was promoted to the next higher grade on her date of eligibility therefor, as determined by appropriate Departmental officials using the criteria cited, provided she was otherwise qualified and met all other prerequisites for promotion.

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




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

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

         c. that all documents related to her now-voided non-selection for promotion by the 2001 RCSB, and her discharge or transfer be expunged from her official military records.

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

BOARD VOTE:

__HBO____ _CJP___ _MKP_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  MARGARET K. PATTERSON
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069404
SUFFIX
RECON
DATE BOARDED	20020829
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.00
3.
4.
5.
6.