MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2002078832

         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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: An exception to policy by waiver of the professional military education requirement for major. He also requests that his pending discharge be voided until resolution of this issue.

APPLICANT STATES: That he completed the required military education 4 days following the convening date of the 2002 major selection board. In support of his application he submits a letter of explanation dated 8 August 2002, his officer advanced course (OAC) Phase I completion form, his OAC Phase II diploma and his Service School Academic Evaluation Report.

EVIDENCE OF RECORD: The applicant's military records were not provided to the Board. Information herein was obtain from the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) that show:

While serving as a member of the Reserve the applicant was promoted to captain effective 20 August 1994. Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for major was 19 August 2001.

He was considered and not selected for promotion to major by the 2001 and 2002 Reserve Components Selection Boards (RCSB’s), which convened on 6 March 2001 and 4 March 2002, respectively. He was not qualified for promotion based on the lack of the required military education, the OAC.

Documentation submitted by the applicant shows he completed OAC Phase l effective 8 February 2002 and the OAC Phase ll effective 8 March 2002.

The Office of Promotions, PERSCOM verified that on 8 August 2002 he requested an educational waiver. His request was denied on 26 November 2002 and he was advised to apply to this Board for a waiver.

The applicant submits a letter of explanation dated 8 August 2002, wherein he states that his tardiness in completing the OAC resulted from an extended period in the Individual Ready Reserve (IRR) and poor information from his school section. He completed the Infantry OAC Phase l and learned too late that no resident portion (Phase II) was available until June following the major selection board. He was able to rapidly complete the Ordnance OAC Phase l and enroll, but did not complete, Phase ll prior to the promotion board.

The Chief, Special Actions Branch, Office of Promotions, PERSCOM, stated that their office had the authority to grant an educational waiver for an upcoming RCSB only and the request must be received in their office prior to the convening date of the selection board. The applicant did not request a waiver prior to the convening date of the 2002 board; therefore, their office denied his request. The


Army Board for Correction of Military Records is the approving authority for a waiver for a past criteria. In view of the facts, it was recommended that the applicant’s request be returned to this Board for final decision concerning the applicant’s request for an educational waiver.

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 15 May 2003. In his rebuttal dated 21 May 2003, he states that it was certainly true that he did not request an educational waiver prior to the convening date of the board. In fact, he was never aware that a waiver for the education requirement was remotely possible and had he known a waiver was feasible he would have submitted the appropriate request with no delay. He also states that he desires to continue to serve and he would be honored to be considered for promotion to major.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the records 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 boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. The regulation also states completion of the OAC is required for promotion to major.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve Component officers. The law was implemented 1 October 1996. The ROPMA 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, an OAC, and a baccalaureate degree on or before the convening date of the respective promotion boards.

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. In view of the circumstances in this case, the applicant is not entitled to an educational waiver and promotion reconsideration to major. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board notes the applicant’s contentions that due to his extended period in the IRR and poor information about service schools he was unable to complete the OAC Phase II in time. However, based on the fact that the applicant had not completed his military education by the convening date of the 2001 promotion board, he was not qualified for promotion without the OAC, and he is also not entitled to promotion reconsideration to major under the 2002 criteria. The requirement for the OAC is a long-standing requirement for Reserve appointment on or after 1987 and promotion to major.

3. The applicant was fairly considered by two selection boards. He was not educationally qualified for promotion. The Board further notes that the applicant did not complete the required military education prior to the convening dates of the 2001 and 2002 major selection boards; therefore, he is also not entitled to voiding of his discharge.

4. Implicit in the Army's promotion system is the universally accepted and frequently discussed principle 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 RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications. Given that the applicant became a captain in 1994 and that he had to be considered by an RCSB so that, if selected, he could be promoted by the time he had served 7 years in grade, the applicant knew, or should have known, that he would be considered by an RCSB as early as 2001 and that he needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.

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

_ELP____ _JPI____ _RVO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078832
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.01
3.
4.
5.
6.