MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002072705

         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. 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. Lutz		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, promotion reconsideration to major.

APPLICANT STATES: That the Office of Promotions, Reserve Components, granted him a military educational waiver and submitted his promotion package to a special selection board (SSB). He submits a detailed letter dated 22 April 2002 to the Board, copies of a letter dated 21 February 2002 from the Chief, Office of Promotions, a letter dated 16 October 2001 from The Adjutant General and a memorandum dated 16 October 2001 to his commander in support of his request.

EVIDENCE OF RECORD: The applicant's military records show:

He was appointed in the Reserve from the Reserve Officers Training Corps, Infantry Branch, as a second lieutenant effective 19 May 1984.

He was appointed in the Massachusetts Army National Guard (MAARNG) effective 20 May 1984. He was promoted to first lieutenant effective 18 May 1987 and to captain 9 July 1993.

His officer evaluation reports (OER's) ending 27 February 1992, 14 April 1993, 30 June 1995 and 31 May 2000 show that several raters advised him that he needed to enroll in the Officer Advanced Course (OAC) as soon as possible.

An OER for the period 1 July 1995 through 14 April 1996 shows that he was advised by his senior rate to complete Infantry OAC as soon as possible.

He was considered and not selected for promotion to major by the 2000 and 2001 Reserve Components Selection Boards (RCSB's). He was not qualified for promotion based on the lack of the required military education.

On 15 October 2001, the Director, Human Resources, MAARNG requested a waiver of the military education for the applicant. He stated that the applicant was a special individual because of his professionalism and consistently outstanding performance. The applicant had been trying for a branch transfer since June 1999 and because of the turnover of personnel in the military personnel office (MILPO) and their lack of experience with officer matters had a direct impact on the applicant's promotion. He also stated that over the past few years, the MILPO has provided the applicant with inaccurate information, which led to his promotion to major being denied. He has created a Finance Officer position for the applicant with an authorized grade of lieutenant colonel earmarked for the applicant.

On 15 November 2001, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command approved this request and granted a waiver for the military educational requirement for promotion to major for the 2001 criteria.
In a letter dated 21 February 2002, the Chief, Office of Promotions advised the applicant that it was determined by the Chief of the Department of the Army Secretariat, Office of Promotions, Reserve Components and the then Departmental Deputy Chief of Staff for Personnel that a military education waiver referred to in Army Regulation 135-155, can only be granted for a current criteria year and not for any past criteria. He also stated that the applicant's request must have been received in the Office of Promotions prior to the convening of the selection board. He stated that the applicant's request dated 15 October 2001, was after the 6 March 2001 convening date of the 2001 RCSB; therefore, he must deny the applicant's request for a military education waiver.

His records do not show and the applicant has not submitted evidence that he was scheduled for an SSB and later removed.

In a memorandum dated 22 April 2002 to the Army Board for Correction of Military Records, the applicant stated that on 15 November 2001, he was granted a military education wavier for criteria year 2001 and based on the granting of this waiver, his military record was scheduled to go before an SSB for consideration of promotion to major. He also stated that on 21 February 2002, he received notification that the waiver granted on 15 November 2001 had been denied. This determination caused further irreparable harm by an unprecedented re-interpretation of the education waiver process with an opinion of Army Regulation 135-155. He also stated that he feels that the determination incorrectly interprets Army Regulation 135-155. This determination causes not only an injustice to himself but to everyone else that relies on fair and reasonable interpretation of Army Regulations.

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.

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

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. In view of the circumstances in this case, the applicant is not entitled to reinstatement of his military education waiver and promotion reconsideration to major by an SSB. He has not shown error, injustice, or inequity for the relief he now requests.

2. His contentions that he was granted a military education waiver and scheduled to go before a SSB for promotion consideration to major have been noted by the Board. However, the applicant has not demonstrated to this Board that he was scheduled for an SSB. The Board also notes that the applicant has not adequately explained his reason for his delay in pursuing his military education and also has not shown that he has since completed a OAC to be eligible for promotion to major.

3. The Board also notes his contentions that the Regulation does not specifically show that educational waivers can only be granted for a current criteria year. However, at the time the Chief, Office of Promotions, made the decision to grant the applicant the waiver it was known to be a valid and proper decision and cases such as these have previously been processed. In light of the fact that his waiver has since been denied and that the applicant's records show that for five rating periods he was advised to enroll in an OAC as soon as possible, the Board concludes he had ample opportunity to complete an OAC and qualify for promotion. The memorandum from the Director, Human Resources requesting the education waiver states that the applicant had been trying for a branch transfer since June 1999 and was provided inaccurate information by the MILPO that led to his promotion to major does not satisfactorily explain to the Board the extenuating circumstances that prevented the applicant from completing an OAC.

4. He was advised as early as 1992 and did not attempt completing an OAC. The applicant could have completed Infantry OAC and long been eligible for promotion to major prior to his desire to switch branches and his promotion consideration in 2001. Given that the applicant became a captain in 1993, and that he had to be considered by a promotion board so that, if selected, he could be promoted by the time he had served 7 years in grade, the applicant knew, or should have known, that he would be considered by a promotion board as early as 2000 and that he needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light. He did not complete an OAC through his own volition. Therefore, the Board concludes that the applicant does not have a basis for reinstatement of his military education waiver or an SSB promotion reconsideration.

5. The Board also concludes that his SSB waiver was properly approved and later denied. The applicant has not shown otherwise.
6. The Board further notes that as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade. Promotion and retention is keenly competitive, and many officers will not be selected.

7. Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers. The general requirements and workings of the system are widely known and specific details such as promotion board dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.

8. 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.

9. 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

_JHL____ _BJL____ _RVO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072705
SUFFIX
RECON
DATE BOARDED	20020822
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.