RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 JUNE 2004
      DOCKET NUMBER:   AR2003095269


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. William Powers                |     |Member               |
|     |Ms. Mae Bullock                   |     |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 previous request that his
transfer to the Retired Reserve be revoked, that he be reinstated to active
reserve status as an Individual Mobilization Augmentee (IMA), and that he
be reconsidered for promotion to lieutenant colonel.

2.  The applicant states, in effect, that while Army regulations mandate
the involuntary retirement of “a Reserve major twice non-selected for
promotion” he was mobilized at the time of his involuntary retirement and
as such, should have been afforded the treatment prescribed for “active
duty” majors and “retained in our Army of One.”

3.  He states that the requirement for discharge for “a two-time non-
selectee” is not hard and fast and that the Board previously noted the
selective retention of medical professionals and also discussed “that the
policy requiring discharge/retirement has since been rescinded.”

4.  The applicant also argues that he has recently learned that officers in
a similar predicament as him (mobilized officers performing duty for
extended hours each day) wrote to the president of the promotion selection
board requesting that the requirement to have completed at least 50 percent
of the Command and General Staff College for promotion to lieutenant
colonel be waived.  He notes that he has learned that some of those
requests were approved and that officers were “conditionally promoted based
upon this request.”  He states that he was not aware that such an allowance
was being made until after the promotion board results were published.

5.  The applicant provides no new evidence in support of his request.

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
AR2002081331, on
3 June 2003.

2.  The applicant’s recent submission, while not containing any new
evidence, is a new argument which requires referral to the Board.

3.  During the applicant’s initial period of military service, as a member
of the Adjutant General’s Corps Branch, he served in both the enlisted and
officer personnel management arena.  He was promoted to the grade of major
in July 1994.

4.  Seven years later, in 2001 he was considered and not selected for
promotion to the grade of lieutenant colonel.  He was mobilized in support
of Operation Nobel Eagle in November 2001.  His second non-selection
occurred in 2002.  In August 2002 he met the military education requirement
for promotion to the grade of lieutenant colonel by completion of 50
percent of the Command and General Staff Officer Course.

5.  Army Regulation 135-155 states that to qualify for selection,
commissioned officers must complete certain military educational
requirements, not later than the day before the selection board convening
date.  For promotion to the grade of lieutenant colonel, the education
requirement is completion of 50 percent of the Command and General Staff
Officer Course.  The regulation also notes that requests for exceptions to
nonstatutory promotion requirements may be submitted to the Chief, Office
of Promotions (Reserve Component) in St. Louis.  Waiver requests must
contain complete justification, including recommendations of intermediate
commanders when applicable.  In similar cases, however, the Office of
Promotions (Reserve Component) has opined that retroactive waiver requests
for past criteria will not be approved by that organization.  Additionally,
they have noted that a waiver of an education requirement was not a
guarantee that the individual would be selected for promotion, but if
selected, the earliest date for promotion would be the date the individual
completed the educational requirement for which the waiver was granted.

6.  Telephonic information obtained by a member of the Board’s staff from
the Office of Promotions (Reserve Component) indicated that occasionally an
officer would submit a letter to the President of the Promotion Board in
which they are, in effect, requesting a waiver of the education
requirement.  The individual’s letter is then forwarded to the Chief,
Office of Promotions, and, providing that the letter is received prior to
the Promotion Board convening date, the Chief, Office of Promotions could
grant a waiver.  In such cases, again providing the process is completed
prior to the convening date of the board would result in an individual
being considered for promotion with a waiver.  However, should the
individual be selected for promotion, he/she would not be promoted until
completion of the education requirement.  The Office of Promotion, in
notifying the individual that an education waiver has been granted, informs
him/her that they have 18 months in which to complete the education
requirement.

7.  Army Regulation 135-155 also states that an officer under consideration
may write to the selection board inviting attention to any matter of record
deemed vital to his or her consideration.  Appropriate written
communications to a selection board will be considered if received not
later than the day before the selection board convening date.

8.  Army Regulation 135-155 states that an officer who twice fails to be
selected for promotion to the grade of captain, major, or lieutenant
colonel will be removed from active status unless subsequently placed on a
promotion list, selected for continuation, or retained under any other
provision of law.

9.  Army Regulation 600-8-29, which applies to officers on the active duty
list (ADL), also states, in effect, that an officer on the ADL who has
failed to be selected for promotion to captain, major, or lieutenant
colonel a second time will be subjected to separation unless selected for
continuation or retained under any other provision of law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had nearly 7 years between the date of his promotion to
major and his initial consideration for promotion to lieutenant colonel in
which to complete the educational requirement for promotion consideration.
He was not mobilized until November 2001, well after his initial
nonselection, and did not complete the education requirement until August
2002, several months after his second consideration.

2.  The regulation governing the promotion of Reserve Component officers
clearly defines the educational requirements for promotion and provides an
avenue for requesting an education waiver and for communicating with
promotion board.  Clearly the applicant, who, it has been noted did serve
in the capacity as chief of both enlisted and officer management at one
point during his career, should have been aware of not only the education
requirements but the procedure for requesting a waiver, or at the very
least should have been able to contact someone who might have been able to
provide him with such guidance.  His contention that he was not aware of
such an avenue is not sufficiently mitigating to warrant either
reinstatement to an active reserve status or reconsideration for promotion.

3.  The applicant’s argument that because he was in a “mobilized” status at
the time of his second non-selection, he should be afforded the same
treatment of an “active duty” major and be “retained in our Army of one” is
without foundation.  Officers twice not selected for promotion to
lieutenant colonel, whether in a Reserve Component or on Active duty, are
equally subjected to separation action.

4.  The applicant is correct in noting that discharge/retirement is not a
“requirement” for a two-time non-selectee.  However, he was considered and
not selected for retention.  He has not provided a sufficiently compelling
argument for retention that would justify affording him retention while
denying other individuals that same benefit.

5.  There is no evidence of any error or injustice in the applicant’s non-
selection for promotion and subsequent release from an active status and as
such there is no basis for relief.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MP ___  __WP___  ___MB __  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 AR2002081331, dated 3 June 2003.




            ___Margaret Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003095269                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040617                                |
|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.                      |                                        |