RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            13 APRIL 2004
      DOCKET NUMBER:   AR2003094219


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Roger W. Able                 |     |Chairperson          |
|     |Mr. Robert J. Osborn II           |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier appeal to void
his non-selection for promotion to lieutenant colonel and submit his
records to a Special Selection Board.

2.  The applicant states, in effect, that it is not his intent to argue
that there was an error in his record that precluded his selection for
promotion to lieutenant colonel.  Rather, he states he feels that the Board
should consider the “extra ordinary circumstances that [he] has faced, and
the duress that followed….”

3.  The applicant states that he was repeatedly harassed by his civilian
supervisor regarding his attendance at reserve commitments, was pressured
by his civilian supervisor to quit the reserve, and because of the
inflexibility of his civilian supervisor to modify or change his civilian
work schedule in order for him to participate in reserve unit activities,
he was “working under extreme duress.”

4.  He states that the “issue of [his] command college was not considered
by [him] because if [he] could not perform [his] reserves, [he] effectively
had no reason to continue [his] military education.”

5.  He states that it was not until 2000 when his civilian supervisors
changed and he was able to locate a Reserve unit whose mission did not
conflict with his civilian job that he was able to meet his Reserve
obligations.

6.  The applicant points out positive comments in his military performance
evaluation reports and cites various snippets from a conversation with his
civilian supervisor, which took place in a parking lot in 1991 to support
his argument that the Board should grant his request.  He also cites an
adverse evaluation report, for the period 9 August 1991 through 8 August
1992, which was appealed and removed from his records, as evidence of the
duress he was under at the time.

7.  In addition to his self-authored statement, the applicant submits a
copy of the voice recording between him and his civilian supervisor from
1991, a transcript of that same conversation, copies of his performance
evaluation reports, and an extract from Houston Police Policy general order
regarding military leave.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002076397, on 13 May 2003.

2.  The applicant’s self-authored statement and conversation with his
civilian supervisor constitutes new evidence which requires consideration
by the Board.

3.  The applicant was promoted to major in January 1994.  He was
nonselected for promotion to lieutenant colonel in 2000 and again in 2001.
He was notified in June 2002 that the reason for his nonselection was
failure to meet the military education requirements for promotion to
lieutenant colonel.

4.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers other than General Officers of the Army National Guard and United
States Army Reserve) states that to qualify for promotion to lieutenant
colonel an individual must have completed 50 percent of the Command and
General Staff Officers Course not later than the day before the selection
board convening date.

5.  According to information contained in the Board’s previous memorandum
of consideration, the applicant completed 50 percent of the Command and
General Staff Officer Course on 14 November 2001 which was after the
convening dates of both the 2000 and 2001 lieutenant colonel selection
boards.

6.  The recording and transcript of the recording between the applicant and
his civilian supervisor occurred in June 1991.  The conversation centered
around the applicant’s need to have his work schedule rearranged in order
to attend drills, his exhaustion of his annual military leave, and
apparently his lack of civilian leave time.  The applicant’s civilian
supervisor reminded the applicant that he (the civilian supervisor) was not
required to alter the applicant’s work schedule in order for him to attend
his reserve training.  The civilian supervisor also reminded the applicant
that he had exhausted his military leave and that the “department” would
not “ok anymore.”  He noted that the applicant needed “time on the books”
in the event that he was “called in” or if an emergency situation came up
for him or his family.  His supervisor states that the applicant may be
spreading himself too thin (between work, school, and military service) and
reminded him he had a family to think about.  The supervisor stated that if
“something comes up and you have to be with the kids in the hospital two or
four days with the kids, and you didn’t have those are [sic] days, those
are three or four day[s] you would not get pay for.”  Ultimately the
supervisor indicated that he was going to adjust the applicant’s days off
to permit him to attend drill and asked that the applicant keep the
supervisor informed in the future so he could “put it in the ‘red book’
(time off book).”

7.  The performance evaluation report, for the period 9 August 1991 to 8
August 1992, which the applicant indicated had been removed from his record
upon appeal, indicated that the applicant “often complained about being
under great



mental stress and unable to perform well.”  His rater assigned a rating of
3 (on a scale of 1 to 5 with 1 being the highest rating) for his ability to
perform under physical and mental stress and for his ability to adapt to
changing situations.  The report noted that he had attended 36 of 48 drills
and that he claimed “conflict with school, work or family obligations” as
the reason for not participating in assigned exercise preparation sessions.
 It also noted that he had failed to complete “an assigned requirement for
the preparation of an information briefing on Personnel Inprocessing
Center.”

8.  Performance evaluation report rendered in September 2000 following a
brief period of active duty for training, and a report completed in June
2002 were both highly complimentary.

DISCUSSION AND CONCLUSIONS:

1.  The information contained in the recording between the applicant and
his civilian supervisor appears to indicate that the supervisor was
attempting to work with the applicant as much as possible and was advising
him (the applicant) of his need to balance the commitments in his life.

2.  The applicant’s conflict with his work situation existed as early as
1991 when he recorded a conversation between him and his civilian
supervisor.  However, the evidence indicates that the applicant was
promoted to the rank of major nearly 3 years later, suggesting that the
applicant’s stressful work situation was not impacting on his military
service to point that it was precluding his advancement.

3.  The reason the applicant was not selected for promotion to lieutenant
colonel in 2000 and 2001 was because he had failed to meet the education
requirements for promotion to that rank.  The applicant himself admitted
that he essentially gave up on his military education because he did not
feel he would be able to continue his Reserve service in light of his work
situation.  He would now argue that the Board should excuse that choice and
enable him to be reconsidered for promotion because he was having a tough
time balancing all the demands on his time several years ago and no longer
has those same demands.

4.  The fact remains that the applicant had more than sufficient time to
complete the education requirements prior to the convening date of the
lieutenant colonel selection board and he has not presented a compelling
argument which would warrant excusing his failure to complete the
requirement in order to permit him to be reconsidered.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RWA__  __RJO__  __YM ___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2002076397, dated 13 May 2003.





            ____ Roger W. Able______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003094219                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040413                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |