MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002078288

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Gail J. Wire		Member
Mr. Stanley Kelley		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, waiver of his military education requirement for promotion to major and appearance before a Special Selection Board (SSB).

APPLICANT STATES: That he had orders to report to the Transportation Officer Advanced Course (TOAC) on 6 January 2002 that would have made him educationally qualified for promotion to major. However, he was activated and his orders were revoked; therefore, depriving him from the opportunity to become educationally qualified for promotion. He requested to attend, even at his own expense, but was denied. He is now asking that he be given another chance for consideration for promotion after he is allowed to attend the required schooling. In support of his application, he submits a copy of his active duty for training (ADT) orders, dated 27 November 2001, mobilization orders dated 17 October 2001, and revocation orders dated 5 December 2001.

EVIDENCE OF RECORD: The applicant's military records show he was commissioned as a second lieutenant in the USAR on 30 July 1986, with prior military service.

He was promoted to captain (CPT/0-3) on 28 July 1994. Army training reservation records pertaining to the applicant show that he was scheduled for the final phase of the TOAC in 1999 and 2000. He was denied attendance at both scheduled courses because he failed to meet the height/weight standards.

He was not selected for promotion to major by the 2001 RCSB that convened on 6 March 2001, based on his not having completed the required military education. He did not complete Phase I of the TOAC until 18 September 2001.

Army Reserve Personnel Command (AR-PERSCOM) Orders Number T-11-118367, dated 27 November 2001 ordered the applicant to ADT for a period of 12 days to attend the final phase of the TOAC with a reporting date of 6 January 2002.

Headquarters, 77^th Regional Support Command Orders Number 01-290-040, dated 17 October 2001, voluntarily ordered the applicant to active duty for 12 months in support of Operation Noble Eagle.

AR-PERSCOM Orders Number T-11-118367R, dated 5 December 2001,
revoked Orders Number T-11-118367, dated 27 November 2001.

He was again not selected for promotion to major by the 2002 RCSB that convened on 4 March 2002, based on his not having completed the required military education. He has been retained in an active status to complete 20 years of qualifying service for retirement.

The Chief, Special Actions Branch, Office of Promotions, Reserve Components, US Total Army Personnel Command (PERSCOM) provided an advisory opinion. The opinion stated that, based on the applicant's order to active duty on 19 October 2001 for 12 months, and the revocation of his order to attend the TOAC, it was recommended that he be granted an education waiver for the 2002 criteria. If the applicant is granted a waiver his case would be returned to PERSCOM for consideration by an SSB. If selected for promotion by an SSB he would have 18 months from the approval date of the SSB to complete his military education.

The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of this case. The applicant responded within the timeframe allotted and concurred on 18 November 2002.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to major an individual must have completed 7 years of time in grade as a captain and an officer advanced course on or before the convening date of the respective promotion board. There are no waiver provisions provided in the regulation.

Army Regulation 135-155 also prescribes the policies and procedures for promotion reconsideration by a standby promotion advisory board. Standby consideration may only be based on erroneous nonconsideration 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 judgement of the reviewing official (or body), it caused an individual's nonselection 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 nonselection, except if an individual is not qualified for noncompletion of required military schooling.

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 evidence of record clearly shows that the applicant was scheduled in 1999 and 2000 to attend the TOAC that would have made him educationally qualified for promotion to major. He was not allowed to attend either course because he failed the height/weight standards. The applicant was voluntarily mobilized and his orders for the TOAC were revoked. The applicant knew that this was his final opportunity to become educationally qualified for promotion.

2. The Board notes that PERSCOM recommended that this Board grant a military education waiver for the 2002 criteria for promotion consideration to major based on the sequence of events.

3. Implicit in the Army's promotion system is the universally accepted principal 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 selection board dates, eligibility requirements, and promotion zones are widely published in official and quasi-official publications and official communications. Given that the applicant became a captain on 28 July 1994 and had entered the Reserve Component in 1986 he knew, or should have known, that he must complete an OAC prior to either the 2001 or 2002 promotion boards.

4. Notwithstanding the PERSCOM advisory opinion, the applicant was provided all of the requisite time and opportunities to complete his required military education as other officers similarly situated.

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

__ro___ ___gw__ __sk___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078288
SUFFIX
RECON
DATE BOARDED	20030522
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	310
2.
3.
4.
5.
6.