MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
       


         BOARD DATE: 13 May 2003
         DOCKET NUMBER: AR2002076397

         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Lawrence Foster		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, that his non-selections to lieutenant colonel (LTC) be voided and his records be considered by a Special Selection Board (SSB).

APPLICANT STATES: In effect, that neither selection board reviewed his record, since it did not contain the required “Phase two Command College” credits. He states that he tried diligently to have his educational credits done, but was delayed entering his college courses. He adds that he did complete the educational requirements, even though he received and sent in his final grades two months after the board convened. He further states that he was under constant pressure and harassed by his civilian supervisors to stop going to Reserve drills. He was virtually forced to quit the Reserve in order to stop the harassment. He maintains, that he reported these actions to Army personnel, who in-turn contacted the Police Department, who agreed to allow him to complete his Reserve duty. He states he lost hope of completing 20 years of Reserve duty, but did request another assignment from the Army. He contends that 7 years later, regardless of the continued harassment, he stayed in the Ready Reserve, never resigned his commission, and served when called upon by his Country. He states that he now stands to lose his promotion and most importantly his Army pension, because of two months delay in receiving his school qualifications. In support of his claim he submits a detailed summary of the above events, a copy of his Non-Resident Studies, and a copy of his educational certificate of completion.

EVIDENCE OF RECORD: The applicant's military records are not complete, however, the available records show:

That the applicant, after having had prior enlisted service in the Regular Army, was commissioned a second lieutenant on 16 January 1981 in the USAR and transferred to the USAR Control Group (Annual Training).

On 2 August 1981, the applicant was ordered to Active duty for a 3-year period of obligated voluntary service as an Air Defense Artillery Officer. On 2 February 1983, the applicant was promoted to first lieutenant. On 29 November 1983, he was approved for a one-year extension on active duty, under the provisions of paragraph 8, Army Regulation 135-215.

On 1 August 1984, he elected not to remain on active duty and was released from active duty. He was credited with 3 years, 8 months and 1 day of net active service. He was then transferred to the USAR Control Group (Reinforcement).

On 1 February 1987, the applicant was promoted to the rank of captain, USAR, after being found medically qualified for retention. On 12 May 1987, the applicant entered the Texas, Army National Guard.

On an unknown date he was transferred back to the Individual Ready Reserve (IRR). Effective 9 August 1989 he was assigned to a USAR unit.

According to the United States Total Army Personnel Command (PERSCOM) Office of Promotions, Reserve Components, he was not selected for promotion to LTC by the 2000 and 2001 Reserve Component Selection Boards.

On 3 April 2002, a notification from the Non-Resident Studies program advised the applicant, that he satisfactorily completed 50% of the Command and General Staff Officer Course (CGSOC) course of 11-14-2000.

On 7 June 2002, the PERSCOM, Office of Promotions, Reserve Components responded to the applicant’s inquiry concerning his promotion status in the USAR. The applicant was informed that his record was considered, but he was not selected by the 2000 and 2001 LTC Department of the Army Reserve Component Selection Board (RCSB), based on not meeting the military educational requirements.

In an opinion to the Board the PERSCOM notes that the applicant was not selected for promotion to LTC by the 2000 & 2001 promotion boards and recommended denial of his request due to not being educationally qualified for promotion prior to the 2000-2001 boards. In addition, the PERSCOM noted that the applicant had been promoted to major on 31 January 1994, that he had
7 years to complete the required military education, which he did on
14 November 2001, after the convening dates of both boards.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He stated that the advisory committee’s recommendation of denial for his promotion was the only recommendation that they could have rendered. The applicant states that the mitigating circumstances were not considered.

The applicant’s records also contain a copy of his Summary of Points for the period 15 January 1981 through 1 September 2002. This statement shows that the applicant had 13 years of qualifying service. He therefore, would not be qualified to be retained to complete 20 years of qualifying service for retirement.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby promotion advisory board 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 educational requirements for promotion must be met prior to the convening date of the board.

Army Regulation 140-10 provides the policy for USAR assignments, attachments, details, and transfers. Chapter 7 provides the policy on removal from an active status and paragraph 7-12, provides the exceptions for removal after failure to be selected for promotion. Officers having 18 years of qualifying service will be retained in an active status until 3 years from the earlier required removal date or on the date they complete 20 years of qualifying service, which ever is earlier.

Department of the Army Pamphlet 600-3 is intended as a professional development guide for individual officers. It applies to all commissioned officers of the Active Army, the Army National Guard, and the USAR. In pertinent part, it states that officers in many respects are ultimately their own career managers. The key is to be involved in career development by making informed logical decisions and acting on them.

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. The applicant is not entitled to promotion reconsideration by a SSB. His case was reviewed and he was not selected for promotion to LTC in accordance with regulations in effect at that time.

2. The applicant knew, or should have known, that the military educational requirement for promotion to LTC had to be completed no more than 7 years after promotion to major.

3. Notwithstanding the applicant’s rebuttal to the PERSCOM Advisory Opinion, the Board concurs that the applicant failed to meet the required military education requirements for promotion to LTC as stated in Army Regulation 135-55 and prior to the convening date of the boards.

4. Notwithstanding, his assertion, that he was under constant pressure by his civilian supervisors to stop going to Reserve drills or he would be forced to quit the Police Department, that is not a compelling argument to have his promotion requirement waived.

5. 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.

6. 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

___MKP_ ___TSK _ __LF ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074858
SUFFIX
RECON
DATE BOARDED	20030513
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.