RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 February 2004
         DOCKET NUMBER: AR2002075153


         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
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Curtis L. Greenway		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his nonselections for promotion to major by the 1998 and 1999 Reserve Components Selection Board (RCSB) be removed from his records. This is, in effect, a request for reinstatement in the Ready Reserve and promotion reconsideration.

2. The applicant states that he was not provided sufficient time to complete the military education requirements for promotion. In his attached statement he says he was informed that he would have at least 2 years to complete the military schooling. He completed Phase I of the Chaplain Officer Basic Course and began Phase II by correspondence. When he discovered that he already knew the material from his service as a Chaplain in the Navy he requested a waiver of the remainder of the course. When his request was disapproved he had to complete the remainder of the course.

3. The applicant goes on to state that he completed his basic and advanced course in 2 ½ years, which normally takes 6 years. He was about to be placed in a major's position for unit vacancy promotion when it was discovered he was not selected by the mandatory RCSB for promotion to major in March 1998. He was again not selected for promotion to major in February 1999. He was never notified that the Georgia Army National Guard (ARNG) forwarded his promotion packet for consideration. Since his military education requirements could not possibly have been completed by the promotion board convening dates his nonselections should be expunged.

4. The applicant provides copies of documents from his Army records, his request and the denial for waiver of the officer basic course, and a biographical sketch.

CONSIDERATION OF EVIDENCE:

1. On 12 December 1995, the applicant submitted an application for ARNG appointment and Federal Recognition as a captain, Chaplain Corps. He acknowledged that he was at the time a Chaplain in the Naval Reserve in the grade of lieutenant and answered "No" to the question if he had ever been separated from the military by reason of board action. On 9 January 1996, he signed his Oath of Office for the Georgia ARNG. The orders assigning him to the Georgia ARNG shows his promotion service date as 1 May 1985 and his promotion eligibility date as 30 April 1997.





2. On 7 March 1996, the applicant completed Phase I of the Chaplain Officer Basic Course, in residence. On 18 December 1996, the applicant requested a waiver of his remaining Phase II correspondence work for the Chaplain Officer Basic Course based on his Navy service. On 22 April 1997, the Chaplain Center and School denied his request, stating that the Phase II correspondence work for the Chaplain Officer Basic Course was Army specific.

3. On 23 June 1997, the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), issued a memorandum notifying the applicant, through the Mississippi ARNG, that he had been considered and not selected for promotion to major by a board that convened on 10 March 1997.

4. Effective 27 August 1997, the applicant executed an Oath of Office for appointment in the Mississippi ARNG. On 10 September 1997, the National Guard Bureau issued orders extending Federal Recognition to the applicant effective 9 January 1996.

5. On 2 August 1998, the Office of Promotions, Reserve Components, PERSCOM, issued a memorandum notifying the applicant, through the Mississippi ARNG, that he had been considered and not selected for promotion to major based on the lack of required military education by a board that convened on 9 March 1998.

6. The applicant's available records contain a diploma for completion of the Chaplain Officer Basic Course, dated 13 September 1998. It is presumed that he completed the course requirements at an earlier date because his records also show that he completed the 12-day Chaplain Officer Advanced Course effective 11 September 1998.

7. Based on the applicant's second nonselection for promotion and his completion of 18 years of qualifying service for retirement, the Mississippi ARNG issued a 31 March 2000 memorandum notifying the applicant's commander that the applicant could be retained until completion of 20 years of qualifying service.

8. Effective 26 March 2002, the applicant was notified of his eligibility for retired pay upon application at age 60. Effective 31 March 2002, the applicant was separated from the ARNG and transferred to the Retired Reserve in the grade of captain on orders issued by the Mississippi ARNG.

9. On 4 June 2003, the Office of Promotions, Reserve Components, PERSCOM, issued a memorandum notifying the applicant that he had been considered and not selected for promotion to major under 1999 criteria by a special selection board that convened on 25 October 2002. The reason for his nonselection was not based on the lack of military education.

10. In the processing of this case an advisory opinion was provided by the Office of Promotions, Reserve Components, PERSCOM. The opinion noted that the applicant was properly considered as required under Title 10 US Code, section 14301 for promotion to major by the 1997 and 1998 Chaplain, Reserve Components Selection Board (RCSB) and not selected based on the lack of required military education. In the applicant's rebuttal to the advisory opinion he states that the time it takes to complete the military education for promotion was not taken into consideration, just a regulatory response. The Army should not force him to complete the schooling without allowing him the time to complete them, otherwise he has been set up for failure. The applicant goes on to discuss the many problems with the 1999 Chaplain RCSB and ends his statement that it would only be fair for this Board to show that he was given adequate time to complete the military education prior to any promotion consideration.

11. Additional records made available to the staff of the Board provide details of the applicant's promotion consideration history while in the Naval Reserve. These records show that he was considered for promotion to lieutenant commander five times between June 1991 and September 1995 and not selected. The June 1991 and 1992 boards occurred while he was on active duty as a Naval Reserve Chaplain. The 1993 through 1995 boards occurred while a member of the Naval Reserve not on active duty.

12. Effective 4 September 1996, the Naval Reserve Personnel Center issued orders that involuntarily separated the applicant for at least twice failure of selection for promotion. There is no record of a conditional release by the Navy to the Army on file at the Naval Reserve Personnel Center.

13. Department of Defense Instruction 1200.15 provides policy and guidance to the Military Departments under the authority of Title 10, US Code on transfer to the Retired Reserve of personnel who have completed the service required for nonregular retirement and the notification of members who have completed the years of service required for retired pay at age 60. It provides that after a person has been notified, in accordance with this Instruction that the member has completed the years of service required for eligibility for retired pay at age 60, that eligibility may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from fraud or misrepresentation by the individual concerned.

14. Army Regulation 135-100 provides the policy on appointment of Army Reserve Component commissioned officers including Chaplains. It provides that a former Reserve commissioned officer that was twice passed over for promotion is ineligible for appointment. Additionally, an applicant whose appointment in an Army Reserve Component would cause them to hold more than one Reserve status simultaneously is ineligible for appointment.
15. The regulation also provides that members of Reserve Components of other services not on active duty must submit a conditional release obtained through official channels. Appointment as an Army Reserve Component Chaplain of a commissioned officer of another Armed Force approved for interservice transfer will be given the same grade and date of rank as held in the former Armed Force.

16. Army Regulation 135-155 provides the policy for promotion of Reserve Component officers. This regulation specifies that mandatory selection boards will consider Reserve officers to grades of major in an active status. First consideration will occur well in advance of the date the officer will complete the time in grade requirements of 7 years. The next board considering his or her grade and/or branch will reconsider those officers who were not selected for promotion on the first consideration, and who remain in an active status. Respective designees will notify each officer in the zone of consideration for mandatory promotion board consideration at least 90 days before the convening date of the board, and will include the date on which the board is to convene.

17. The regulation also specifies that in order to be qualified for promotion to major, an individual must have completed an officer advanced course or have an approved waiver for the required military education on or before the convening date of the respective promotion board.

18. Army Regulation 135-155 further specifies that officers who twice fail to be selected for promotion to the grade of major will not be considered again for promotion, and will be transferred to the Retired Reserve, if they are eligible and request such transfer, or discharged. If the officer has 18 or more but less than 20 years of qualifying service for retirement, the officer may be retained for a maximum of 3 years to obtain 20 years of qualifying service for retirement.

19. This regulation also specifies that an officer’s name may be removed from a non-recommended list if he or she was not in an active status, or in an active status in error at the time of consideration. Promotion policy does not provide for the removal of non-selections by a RCSB except when directed by this Board.

DISCUSSION AND CONCLUSIONS:

1. The applicant was not selected for promotion to lieutenant commander three times between 1993 and 1995 while in the Naval Reserve and was ineligible for his appointment in the ARNG on 9 January 1996.





2. There is no evidence of record that the applicant was approved for a conditional release from the Naval Reserve prior to his signing his Oath of Office in the ARNG on 9 January 1996. This resulted in his holding more than one Reserve status simultaneously and provides a second reason that he was ineligible for his appointment in the ARNG on 9 January 1996. He was not separated from the Naval Reserve until 4 September 1996.

3. Although the applicant was erroneously appointed in the Army Reserve Components, he was required to be timely considered for promotion to the next higher grade while in an active status. Because he had not completed the required officer advanced course, or had an approved waiver for the course, he was not eligible for promotion selection.

4. The applicant was assigned to the Retired Reserve effective 31 March 2002 and he is not eligible for removal of his promotion nonselections and return to an active status. He has not shown error, injustice, or inequity for the relief he now requests.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__sc____ ___rs__ ___cg_____ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  ___Samuel A. Crumpler__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075153
SUFFIX
RECON
DATE BOARDED	20040203
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.10
2.	110.03
3.
4.
5.
6.