MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 11 MARCH 2003
         DOCKET NUMBER: AR2002076597

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Shirley L. Powell		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: That he be reinstated to an active Reserve component status in order to complete Phase 2 of his Army Medical Department (AMEDD) Officer Advanced Course. He also asks that upon completion, he be reconsidered for promotion to major.

APPLICANT STATES: In effect, that his records were “flagged” between January 1999 and September 2001 because of civil court proceedings. He states that because his records were flagged he was precluded from enrolling in, and completing his officer advanced course, a requirement for promotion to major. He notes that his civil conviction was reversed and that in July 2001 the charges were dismissed. He states that in September 2001 his flag was lifted. He indicates that he successfully completed Phase 1 of the advanced course in June 2002 but was subsequently discharged as a result of being passed over twice for promotion to major. In support of his request he submits a copy of a court document which dismissed his civil charges, a copy of the document which lifted his suspension of favorable personnel actions (flag) in September 2001, and a copy of his completion certification for Phase 1 of the advanced course. He also submits a statement of support from the commanding general, 804^th Medical Brigade in Ayer, Massachusetts.

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

He was commissioned as a United States Army Reserve second lieutenant in July 1980 and successfully completed his officer basic course in April 1981. He was promoted to first lieutenant in July 1983 and to captain in September 1987 with a date of rank of July 1987. Orders promoting him to captain were published on 9 November 1987.

The applicant’s limited personnel records indicate that he was initially assigned to a unit in Illinois, and subsequently to troop program units in Indiana, Rhode Island, and Massachusetts. An order, published in October 1987, indicated that he was transferred to the United States Army Reserve Control Group (Reinforcement), at his request, effective 29 September 1987. Although he was subsequently assigned to a troop program unit in Rhode Island, there is no indication in available files when that action occurred. In June 1999 he was assigned from the Rhode Island unit to the 804^th Medical Brigade in Ayer, Massachusetts.

According to the applicant’s civil court documents, provided in support of his request, it appears his civil court action occurred after a 14 December 1998 “motion for trial…” The applicant was charged with several different counts of indecent assault and battery upon two adult women in his capacity as their treating chiropractor.

Although the applicant states that his records were flagged in January 1999 there were no documents, contained in available records, which confirmed that information.

The civil court document indicates that upon appeal the “judgments are reversed and the findings of guilt are set aside.” An undated document, provided by the applicant, indicates that ultimately the Commonwealth of Massachusetts entered a “nolle prosequi in the interest of justice” in the applicant’s case. Black’s Law Dictionary (Sixth Edition) indicates that “nolle prosequi” is the “voluntary withdrawal by the prosecuting attorney of present proceedings on a criminal charge.” The applicant’s flag was lifted on 8 September 2001 and the reason listed for lifting the flag was “case closed favorably.”

In February 2002 the applicant enrolled in Phase 1 of the AMEDD Officer Advanced Course. He completed Phase 1 in June 2002. An information sheet, provided by officials from the Army Reserve Personnel Center in St. Louis, indicates the applicant was discharged on 30 July 2002 as a result of being passed over twice for promotion.

Department of the Army Pamphlet 351-4 states that the AMEDD Reserve Component Officer Advanced Course is a two-phased course designed to provide general and specific advanced-level military education and training for AMEDD officers in military medical support operations. Phase 1 consists of 110 hours of AMEDD branch-specific correspondence courses. The correspondence phase must be completed within 1 year of enrollment. Phase 2 is a 2 week resident course and must be completed within 3 years of enrolling in Phase 1. The prerequisites for participation include commissioned officers of the Army National Guard or Army Reserve who have completed the AMEDD Officer Basic Course, or its equivalent, and are in the grade of first lieutenant or above.

Army Regulation 135-155 states that completion of the advanced course is a requirement for promotion to major. The regulation also notes that an individual will be considered for promotion to major by a mandatory promotion board when the individual has 7 years of service in the grade of captain and 12 years of commissioned service.

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. For reasons not fully explained, or apparent in the available evidence, it appears that the applicant should have initially been considered for promotion to major by a mandatory promotion board in 1994 or 1995, when he had 7 years of service as a captain and more than 12 years of commissioned service. His second consideration should have occurred the following year.
2. The applicant maintains that he was precluded from enrolling in Phase 1 of the AMEDD Officer Advanced Course because his records were flagged in January 1999, but offers no explanation why he took no action to enroll in the course long before that occurrence. Information available to the board indicates that the applicant would have been eligible to enroll as early as 1983, after he was promoted to first lieutenant.

3. The Board is not convinced that the applicant does not bear some responsibility for his situation. The fact that he may not have been able to enroll when it became clearly a necessity does not serve, as a basis to now grant him additional time to complete a course of instruction, which it appears, should have been completed much earlier. In the absence of an explanation for what appears to have been an excess delay in his enrollment in the advanced course, on the applicant’s part, the Board is not convinced that an error or injustice occurred in this case.

4. 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 that requirement.

5. 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

__SAC__ __TSK __ __SLP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076597
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030311
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.