PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002071120


         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. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		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, in effect, promotion to major.

3. The applicant states that he was considered for promotion to major by the Reserve Components Selection Board (RCSB) that convened on 6 March 2001. He had not completed the required military education for promotion because the final phase of the Officer Advanced Course (OAC) for which he held a valid quota for attendance, which was prior to the convening date of the board, was cancelled due to instructor shortages. He also states that he immediately acquired new quotas for the next available class and he completed the OAC on 27 April 2001. On 5 September 2001, he was advised that he had been granted a military education waiver. In addition, he was informed that an officer evaluation report (OER) was missing from his file that created a material error and an incomplete picture of his qualification during the 6 March 2001 board. He submits copies of letters dated 15 and 27 February 2001 to the President of the 2001 RCSB, a Class Statistics Quota Source Sheet, his Academic Evaluation Report for completion of the OAC on 27 April 2001, his Notification of Promotion Status dated 26 July 2001, his request for a military education waiver dated 31 July 2001, an electronic mail dated 5 September 2001 granting him a military education waiver, a certified "True Copy" of his OER for the period 1 June 1998 through 31 May 1999 and his Biographical Summary in support of his request.

4. The applicant’s military records show that he was appointed in the New York Army National Guard (NY ARNG), Signal Corps, as a second lieutenant effective 21 June 1985.

5. He was promoted to first lieutenant effective 20 June 1988 and to captain 9 November 1992. Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for major was 8 November 1999.

6. He was considered and not selected for promotion to major by the 1999 RCSB that convened on 2 April 1999. He was not qualified for promotion based on the lack of the required military education, completion of an OAC.

7. He was not identified and omitted from promotion consideration by the 2000 RCSB that convened on 6 April 2000.

8. He was considered and not selected for promotion to major by the 2001 RCSB that convened on 5 April 2001. He was not qualified for promotion based on the lack of the required military education, completion of an OAC.

9. He completed the OAC effective 27 April 2001.




10. On 31 July 2001, he requested a military education waiver for the OAC.

11. On 5 September 2001, he was granted a military education waiver for promotion reconsideration by a special selection board (SSB) under 2001 criteria. He was also advised that an OER for the period 1 June 1998 through 31 May 1999 was not in his consideration file. He was further advised to forward a copy of the OER certified "True Copy" to the National Guard Bureau for profiling.

12. On 12 December 2001, the Chief, Office of Promotions, Total Army Personnel Command (PERSCOM), advised the applicant that he had been removed from that SSB consideration based on coordination with the Deputy Chief of Staff for Personnel.

13. Army Regulation 135-155 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.

14. 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.

15. The regulation also specifies that completion of the OAC is required for promotion to major.

16. Official records and promotion board procedures required that Departmental Senior Rater profiles be affixed to OER's prior to filing in individual's records and completed 90 days prior to review by a scheduled selection board for review by that board.





17. On 24 May 2002, the Chief, Special Actions, Office of Promotions, expressed the opinion that the applicant was appointed as a 2LT in the National Guard on 21 June 1985 and completed the Officer Basic Course in March 1987, and was thereafter eligible to enroll in an OAC. He was promoted to captain in November 1992. His first mandatory board consideration for major was in March 1999; he was non-selected for not meeting the military education requirement of completion of an OAC. For reasons unknown, he was not identified for the 2000 promotion board, but he was identified for the 2001 board and again non-selected for not meeting the military education requirement of completion of an OAC.

18. He also stated that the applicant originally enrolled in the Phase I of the Signal OAC in 1998. He was dis-enrolled by the school in 2000 for non-completion. He re-enrolled in Phase I of the OAC in March 2001 and completed Phase I on 10 April 2001; he subsequently enrolled in Phase II and completed that on 27 April 2001 which was after the convene date of the 2001 promotion board. He later requested a military education waiver and an SSB under the 2001 criteria. The Chief, Office of Promotions, granted him the waiver in August 2001 and he was scheduled for the next available SSB.

19. 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 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, Reserve Components, 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 that had already been granted waivers, was then removed from the SSB based on the aforementioned determination. All of the officers were then notified of the determination.

20. 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, assigned to an SSB and then removed from consideration. 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 his records be considered by an SSB as previously scheduled.

21. The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 17 June 2002 and he concurred on 24 June 2002.

CONCLUSIONS:

1. The Board concludes in this case that the applicant is not entitled to promotion without selection by an RCSB; however, he is entitled to promotion reconsideration to major under 2001 criteria by an SSB based on the education waiver previously granted to him on 5 September 2001.

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. This includes 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 noted 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, while Departmental officials no longer permit waivers under these conditions, pertinent regulations did not specify current or past criteria at the time.

4. The Board also notes that the applicant was also granted SSB consideration based on providing a senior rater profiled OER for the period ending 31 May 1999, which he provided to the Office of Promotions on 1 October 2001. He is also entitled to 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 his reconsideration. The decision to disapprove and withdraw the applicant's reconsideration was administrative, through no fault of the applicant, and he should not be penalized.

6. The Board notes that while the applicant was omitted from the 2000 RCSB, he was still not qualified for promotion based on the lack of the OAC, and need not be considered under that criteria.

7. 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 5 September 2001, and by including all of the officer evaluation reports of the individual concerned on his OMPF microfiche.

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 by the 2001 RCSB, and his discharge or transfer be expunged from his official military records.




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

6. That so much of the application as is in excess of the foregoing be denied.

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	AR2002071120
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.	131.01
3.
4.
5.
6.