MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002077003

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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 he be reconsidered for promotion to major (MAJ).

APPLICANT STATES: In effect, that he believes that he was unfairly denied the opportunity to attend the required officer military education course, in the required time period, and therefore, he was not selected for promotion. He claims that he was attending Phase II of his Reserve Component (RC) Adjutant General (AG) Officer Advance Course (OAC) at the time of the Department of the Army (DA) RC MAJ Promotion Selection Board. He states that since that time, he has completed more the necessary military education required for promotion. He further states that at the time of the board, his civilian education exceeded that required for promotion.

The applicant also asks that the Board consider his overall service record and his military education record of accomplishments. He claims that he has graduated in the top three of every military course that he has ever attended. He claims that he was recognized as a distinguished graduate from the Ordnance Officer Basic Course (OBC) and he was third in his class at the AG OAC. He states that while attending Phase II of the OAC, he enrolled in the Combined Arms & Services Staff School (CAS3), and completed Phase 1 of the course on
27 January 1998. He also highlights some of his accomplishments in company grade officer duty positions that he has served in, and he states that his evaluation reports show that he has always exceeded requirements. He further states that he has completed 112 hours of college credit, and he is enrolled in a Bachelor of Science program and should complete his degree requirements in September 2002.

In support of his application, the applicant provides copies of the following documents: Promotion Status Memorandum, dated 1 March 2002; Promotion Reconsideration Status Memorandum, dated 8 January 2002; Promotion Reconsideration Request, dated 17 December 1997; National Guard Bureau (NGB) Office Policy & Liaison Letter, Congressional Inquiry, dated 22 July 1998; AG OAC Training Application; Course Reservation; NIDMAVA Form 33, Military Leave Request; DA Form 145 (RC) AG AOC Phase I, ACCP (805C A11); Personnel Qualification Record; DA Photo; OBC Diploma; AOC Diploma;
DA Form 1059, two Service School Academic Evaluation Reports; CGSC Form 128 (CAS3) Phase I completion notice; two Officer Evaluation Reports (OER); MCCC Student Transcript; a Report of Separation (NGB Form 22); and a
NGB Form 22 correction sheet.

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

While serving in the New Jersey Army National Guard (ARNG), the applicant was considered for promotion to MAJ by the DA RC Promotion Selection Boards in 1996 and 1997. He was not recommended for promotion by either board because he had not met the military education requirement for promotion.

On 1 March 1998, the applicant was honorably separated from the New Jersey ARNG and transferred to the USAR Control Group. The ARNG separation record issued to the applicant confirms that he held the rank of CPT and that he had completed a total of 17 years, 6 months, and 13 days of total service for Retired Pay.

The applicant provides memorandums, with supporting documents, which he claims were submitted in December 1997, January 2002, and March 2002, requesting promotion reconsideration. The first reply to these requests is dated 14 June 2002, and was sent by the Chief, Office Promotions, RC, Total Army Personnel Command (PERSCOM), St. Louis, Missouri. This reply indicated that he had been considered and not recommended for promotion in 1996 and 1997 because he failed to meet the military education requirement prior to the convening dates of the boards in question. These requirements were the CAS3 in 1996 and the OAC in 1997. He was further advised that because he failed to meet the basic education requirement, he was not eligible for reconsideration for promotion by a SSB. On 1 March 1998, the applicant was separated from the ARNG and transferred to the USAR Control Group accordingly.

In connection with the processing of this case, the Board requested of and received an advisory opinion from the PERSCOM, St. Louis, Chief, RC Promotions. It stated that a review of the applicant’s record revealed that he was considered by the 1996 and 1997 DA RC MAJ Promotion Selection Boards, and was not selected for promotion by either board. It further stated that the applicant could not be promoted based on the fact that in 1996, he had not completed the required military education, CAS3, by the convening date of the board. In 1997, he could not be selected because he again failed to meet the military education requirement, OAC, by the convening date of the board, it further clarified that CAS3 was waived for the 1997 board. Although the applicant provided information to show he completed the OAC on 25 April 1997, this was after the convening date of the board, which was 11 March 1997. It finally stated that by regulation an officer must meet the required military education requirements prior to the convening date of promotion boards. Thus, because the applicant failed to meet the basic education requirement for promotion, he has failed to provide a basis for promotion reconsideration by a SSB.

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The applicant was provided a copy of the PERSCOM, St. Louis, advisory opinion and on 29 October 2002, he provided his rebuttal. He stated that he strongly disagreed with the opinion because in his conversations with RC promotion officials he was informed that his request for promotion reconsideration had been denied based on a strict interpretation of the regulations, and they would not considered extenuating or mitigating circumstances. After providing additional information, he was informed that he could apply to this Board for an evaluation and consideration of the extenuating and/or mitigating circumstances surrounding his promotion eligibility.

In his application to the Board, the applicant asserts that he was unfairly denied the opportunity to attend the required courses within the necessary time period. He claims that this was the result of his chain of command imposing several official delays to his attendance at a resident OAC, and its denial of his application to attend the resident OAC in December 1994, and that these official actions directly resulted in his non-selection for promotion. He claims that had he been informed by members of his chain of command that he would be denied resident course attendance prior to 1995, he would have easily completed a
non-resident course. However, this was not the case, and he was continually led to believe he would be allowed to attend a resident course right up to the final denial in 1994. He claims that these actions, along with the relocation of his branch school during this timeframe made it impossible for him to complete the course by the convening date of the promotion board. He again comments on the same issues he presented in his original application to the Board, which he would like considered.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the applicant’s contention that he was unfairly denied the opportunity to attend the required military education course required for promotion in the necessary timeframe, and it carefully considered the supporting evidence he provided with his application. However, the Board finds the evidence provided is not sufficient to support this claim.

2. By regulation, an officer is required to meet the basic military education requirement for promotion prior to the convening date of the promotion board in order to be eligible for promotion selection by that board. The evidence of record confirms that the applicant was considered and not selected for promotion by both the 1996 and 1997 DA RC MAJ Promotion Selections Boards because he failed to meet the basic military education promotion requirement.

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3. The military education requirement for promotion is clearly established in the applicable regulation and it is every officer’s individual responsibility to ensure this requirement is met prior to the convening date of promotion boards in order to be eligible for selection by those boards. In the opinion of the Board, although the applicant may have been denied the opportunity to attend a resident course by his chain of command at some point during this timeframe, he has failed to provide clear and convincing evidence that this was the determinate factor in his failure to meet the regulatory military education requirement for promotion.

4. Further, while the Board notes the applicant’s outstanding record of service and his service school accomplishments, these factors are not sufficiently mitigating to warrant the requested relief. The Board finds that the applicant was required to meet the same standards required of all RC officers that competed for promotion during the promotion boards in question, and granting his request would provide him an unfair advantage that was not available to these officers, who were also required to meet the same standard.

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

__ FNE _ __JEA___ ___CC__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077003
SUFFIX
RECON
DATE BOARDED	2002/12/03
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.