PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002072587


         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. Irene N. Wheelwright		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Thomas Lanyl		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 the promotion board did not honor his waiver. He also states that the Chief of Officer Promotions denied him consideration for promotion to lieutenant colonel due to a mid-board decision to not honor the waiver granted. This waiver gave him credit for 50% completion of the Command and General Staff College (CGSC). He has subsequently continued with the course and completed 100% of the CGSC. He submits a copy of a memorandum dated 24 July 2001 in support of his request.

4. The applicant’s military records show that he was appointed in the Vermont Army National Guard (VT ARNG) as a second lieutenant effective 9 August 1980.

5. He was promoted to first lieutenant effective 8 August 1983, to captain 17 December 1986 and to major effective 17 November 1993.

6. He was honorably separated from the VT ARNG effective 29 July 1998 and transferred to the USAR Control Group (Reinforcement).

7. He was considered and not selected for promotion to lieutenant colonel by the 1999 and 2000 Reserve Components Selection Boards (RCSB's)

8. He completed 50% of the CGSC effective 20 September 2000.

9. In a memorandum dated 24 July 2001, the Office of Promotions, Total Army Personnel Command (PERSCOM) granted the applicant a waiver for completing 50% of the CGSC for the year 2000 criteria. The memorandum also advised that a special selection board (SSB) under the 2000 criteria would consider the applicant. The applicant was also advised that before he could be considered by an SSB, all of his officer evaluation reports (OER's) must be received, and that when his reports have been senior rater profiled and returned to the Office of Promotion, his file would be submitted to the earliest available SSB.

10. 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.
11. 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.

12. The regulation also specifies that completion 50% of the CGSC is required for promotion to lieutenant colonel.

13. Official records and promotion board procedures require 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 selection board.

14. The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant was considered for promotion to lieutenant colonel by the 1999 and 2000 RCSB's and non-selected for not meeting the required military education requirements, i.e., completion of 50% of the CGSC. The applicant originally enrolled in the CGSC in 1992 and was disenrolled in 1997 for non-completion in the required timeframe. The applicant states he did not complete the course or submit a promotion packet for the 1999 board as he was planning to retire. In 1999, he located and joined a troop program unit that could utilize his military and civilian skills and decided to continue with his military career. He re-enrolled in the CGSC in 1999 and completed 50% of the course on 20 September 2000 which was after the convene date (6 September 2000) of the 2000 promotion board for lieutenant colonel. The applicant completed 100% of the CGSC in February 2002. It is not known why the applicant did not request a military education waiver prior to the 2000 board. He did however, request a waiver after the board and was granted a waiver for the 2000 criteria, by the Chief, Office of Promotions, in accordance with Army Regulation 135-155 paragraph 2-15b. The applicant was then to be reconsidered under the 2000 criteria by an SSB to convene in December 2001, the basis being the military education waiver and three officer evaluation reports (OER’s) that were not seen by the original board. If selected by the SSB, the earlier date for promotion would be the date the President approved the original board or the date the officer was in a higher graded position, providing he met all other eligibility requirements.

15. He further stated that just prior to the SSB, the Chief, DA Secretariat, Office of Promotion, Reserve Components, expressed an opinion that military education waivers, as referred to in Army Regulation 135-155, could only be granted for 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 determination agreed with that of the DS

Secretariat, and stated that the Office of Promotions, should cease and desist and it was, therefore, determined that education waiver for past criteria would not be granted. The applicant, as well as many other officers, was then removed.

16. He further opined 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 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 addressed that exceptions may be granted, it does not specify current or past criteria. Based on the information presented, he recommended that the applicant's request be approved and his records be considered by an SSB.

17. The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 15 July 2002. He concurred on 8 August 2002 and stated that he was not previously aware of an education waiver. He also stated that his waiver would have indicated that his CGSC diploma was forthcoming pending normal grading and administration and would have precluded this waiver process.

18. In previous cases such as this, this Board has granted relief for Chief, Office of Promotions waivers.

CONCLUSIONS:

1. The Board concludes in this case that the applicant is entitled to promotion reconsideration to lieutenant colonel under 2000 criteria by an SSB based on the education waiver previously granted to him on 24 July 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 notes that the applicant was also granted SSB consideration based on three OER’s that were not seen by the original board, and he is also due 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 for 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. 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 requirement for promotion to lieutenant colonel, effective 24 July 2001, and by including all of the OER’s 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 2000 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 or 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:

_INW___ _AAO___ _TL_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Irene N. Wheelwright
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002072587
SUFFIX
RECON
DATE BOARDED	20020827
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.