RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JULY 2004
      DOCKET NUMBER:   AR2003097212


      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. John Slone                    |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |

      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, in effect, a military education waiver and
promotion reconsideration to major.

2.  The applicant states that he was assigned to a unit from the IRR
(Individual Ready Reserve) in January 2000 and notified of his assignment
in March 2000.

3.  He states that he requested material for the Aviation Advanced Officer
Course (OAC) and in September 2000 received two correspondence books, which
he completed and returned.  He notes that he never received another book or
notification that he had failed to complete the course.  He states that he
contacted the school to determine what the problem was and ultimately was
told that his name was misspelled and that they had a wrong address and
wrong SSAN (Social Security Account Number).  He was advised to sign up
again.

4.  The applicant states that problems in the unit, and disenrollement by
PERSCOM (Personnel Command) contributed to his inability to complete the
OAC and finally he signed up for the Transportation OAC.

5.  In support of his request, the applicant provides a copy of a school
reservation roster for the Aviation OAC, a September 2002 e[electronic]-
mail concerning enrollment in the Aviation OAC, a September 2003 e-mail
concerning completion of Phase I of the Transportation Corps OAC,
enrollment in the final phase of the Transportation Corps OAC, letters of
support from members of his chain of command, activation orders for
Operation Noble Eagle, and a copy of a message concerning Soldiers
activated for military operations.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant was
commissioned as a United States Army Reserve (USAR) officer in May 1988
upon completion of the ROTC (Reserve Officer Training Corps) program at the
University of Dubuque.  He was promoted to first lieutenant in May 1991.

2.  Performance evaluation reports for the period ending in December 1991
and again in January 1995 recommended that the applicant attend the
Aviation OAC. In May 1995 the applicant was promoted to the rank of
captain.

3.  Orders in the applicant’s file indicate that in September 1996 he was
involuntarily transferred from a troop program unit (TPU) in Columbus,
Ohio, to the USAR Control Group (Reinforcement) because of “MTA
Transfer/Inactivation.”

4.  In January 2000, orders were issued reassigning the applicant from the
USAR Control Group (Reinforcement) to a TPU located in Blacklick, Ohio.
The reassignment, according to the orders, was voluntary.

5.  According to entries on a TADLP (The Army Distance Learning Center)
Enrollment History, provided by the applicant, he was enrolled in the
Reserve Component Aviation Officer Advanced Course Phase I on 18 July 2000.
 That document indicated that five courses were issued on 18 July 2000, but
none were completed; that a sixth course was issued in May 2001, but not
completed, and that as of 18 July 2001 the document indicated “no response
from student within specified time frame.”

6.  On 4 March 2002 a selection board convened which considered the
applicant for promotion to the rank of major.  The selection board
adjourned on 4 April 2002.  The applicant was not selected.  The basis for
his non-selection was because his records failed to show that he met the
education requirements for promotion.

7.  A 15 July 2002 copy of a application for training, provided by the
applicant, contains some computer generated information and some
handwritten information.  The document, however, appears to indicate that
the applicant was attempting to enroll in the Aviation OAC.

8.  According to e-mail traffic, provided by the applicant, members of his
chain of command began inquiring into procedures for enrolling the
applicant in the Aviation OAC in September 2002.

9.  In January 2003 the applicant was ordered to active duty in support of
Operation Noble Eagle.  His initial activation order was for 365 days.  The
activation has since been extended for a total of more than 700 days.

10.  On 3 March 2003 a selection board convened which considered the
applicant for promotion to the rank of major.  The selection board
adjourned on
4 April 2003.  The applicant was not selected.  Again, the basis for his
non-selection was because his records failed to show that he met the
education requirements for promotion.  He was notified of his second
nonselection in August 2003.

11.  The TADLP Enrollment History, provided by the applicant, indicates
that in July 2003, just prior to receiving notification that he had been
considered and not selected for promotion to major a second time, the
applicant enrolled in the Reserve Component Transportation Officer Advanced
Course Phase I.  All 12 courses associated with that OAC were issued to the
applicant on 10 July 2003 and by 29 September 2003 the applicant had
completed all of the course requirements.  A completion certificate was
issued on 29 September 2003.

12.  On 3 October 2003 the applicant was scheduled to attend Phase II of
the OAC commencing on 4 January 2004 and ending on 15 January 2004.

13.  On 3 October 2003 the applicant also initiated a request for a waiver
of the education requirement for promotion to major.  He noted in his
request that he had twice enrolled in the Aviation OAC but was disenrolled
twice by PERSCOM.  In order to meet the education requirement, he noted
that he had completed Phase I of the Transportation OAC and was scheduled
to attend Phase II in January 2004.

14.  Twelve days later, on 15 October 2003, he submitted an application to
this Board.

15.  On 15 January 2004 the applicant completed Phase II of the
Transportation OAC and was issued a completion certificate.

16.  In the processing of this application, an advisory opinion was
provided by the United States Army Human Resources Command-St. Louis.  The
opinion recommended denial of the applicant’s request.  It noted that the
while the applicant was found educationally not qualified for promotion to
major because his records failed to show that he had the required military
and civilian education (OAC and Bachelor’s Degree), the applicant did
provided evidence that he had completed his civilian education requirement
in 1988.  However, he continued to be ineligible for promotion because he
had not completed an OAC by the convening date of the promotion boards.
They also noted that they did not have the authority to grant education
waivers “after the boards have convened” and stated that if the applicant
was granted a military education waiver he could be eligible for a special
selection board.

17.  The applicant was provided an opportunity to respond to the advisory
opinion and did so on 14 March 2004.  He continued to argue that he was
unable to complete OAC before the promotion board convened due to a “number
of administrative errors on the part of US Army and my unit” and that
because of his mobilization he was unable to complete the OAC until January
2004.  He states that he has continued with his military education and that
the Army has a critical shortage of officers.  He states that he “can
continue to leverage [his] knowledge and experience for the Army benefit”
and that his “orders keep [him] mobilized until 29 Jan 05.”  He submits
copies of the same documents submitted with his original application.

18.  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 major, the education requirement is
completion of an advanced course (OAC).  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.

19.  Army Regulation 135-155 also states that an individual will be
considered for promotion to major by a mandatory promotion selection board
when the individual has 7 years of service in the grade of captain and at
least 12 years of commissioned service.

20.  Army Regulation 135-155 specifies that promotion reconsideration by a
SSB may only be based on erroneous non-consideration 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
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 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to a military education waiver and
promotion reconsideration to major.  He was fairly considered twice for
promotion to major and not selected.
 
2.  The applicant’s contentions that he was unable to complete his military
education because of unit and Army errors has been noted but is not fully
supported by the evidence available to the Board.

3.  The evidence available to the Board indicates that the applicant was
advised as early 1991 to attend OAC.  He was promoted to captain in 1995
and yet did nothing about enrolling in an OAC until after he was assigned
to a TPU in 2000.  The documents available to the Board indicate that the
aviation OAC subcourse materials were issued in July 2000 but by July 2001
none were returned and no response from the applicant was received.  As
such, he would have rightfully been disenrolled from the course.

4.  The documents available to the Board indicate that the applicant did
not attempt to enroll in the OAC again until July 2002, after he would have
been nonselected for promotion the first time and that his unit did not get
involved until September 2002.  Ultimately, in July 2003, after his second
nonselection, the applicant enrolled in an OAC and then completed Phase I
within 3 months.

5.  The applicant has not satisfactorily shown that he was prevented from
completing an OAC in a timely manner from the time of his promotion to
captain in 1995 and his second non-selection in 2003.  The evidence
indicates that the applicant did not become aggressive regarding completion
of an OAC until after his non-selection for promotion.
 
6.  Based on the fact that the applicant had not completed his military
education by the convening dates of the 2002 and 2003 promotion boards, he
was not qualified for promotion.  The requirement for OAC is a long-
standing requirement for promotion to major.
 
7.  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 Reserve Component Selection Board
(RCSB) dates and promotion zones are widely published in official, quasi-
official and unofficial publications, and in official communications.
 
8.  Given that the applicant became a captain in 1995 and that he had to be
considered by a RCSB so that, if selected, he could be promoted by the time
he had served 7 years in the lower grade, the applicant knew, or should
have known, that he would be considered by an RCSB as early as 2002 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.
 
9.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___RD __  ___TO __  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 for correction of the
records of the individual concerned.





            ______John Slone _______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097212                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040729                                |
|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.                      |                                        |


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