PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2003087480


         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, promotion reconsideration to major.

3. The applicant states that he was granted an education waiver and the promotion board did not honor his waiver. He also states all supporting documents are currently in his promotion file.

4. The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 18 May 1986.

5. He was promoted to first lieutenant effective 20 May 1989 and to captain effective 26 May 1993.

6. He was considered and not selected for promotion to major by the 2000 Reserve Components Selection Board (RCSB), which convened on 7 March 2000. He was not qualified for promotion based on the lack of the required military education, completion of an officer advanced course (OAC).

7. On 20 October 2000, he requested promotion reconsideration due to lack of military and civilian education certification in his promotion file. He was granted promotion reconsideration by a special selection board (SSB) and not selected.

8. He was considered and not selected for promotion to major by the 2001 RCSB, which convened on 6 March 2001. He was not qualified for promotion based on the lack of the required military education, completion of an officer advanced course (OAC).

9. In a memorandum dated 16 August 2001, the Office of Promotions, Total Army Personnel Command (PERSCOM) granted the applicant a military education waiver for promotion to major for the 2001 criteria.

10. Based on his two non-selections he was given an established removal date of 1 January 2002. He was reassigned from the USAR effective 22 January 2002 and assigned to a troop program unit.

11. The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that the applicant completed the officer basic course in 1989 and was thereafter eligible to enroll in an OAC. He was promoted to captain on 20 May 1993 and his first mandatory board consideration for major was in March 2000; he was non-selected for not meeting the military educational requirement of an OAC by the convening date of the board. He was again non-selected by the 2001 mandatory board for the same reason, not completing the military educational requirement.



12. He also stated that based on conflicting information from his personnel management officers in the Military Police Branch and the Military Intelligence Branch he never completed the required military education of an OAC. He was then requested an exception (waiver) of the military education requirement, based on his extenuating circumstances, and was granted a waiver for criteria year 2000, by the Chief, Office of Promotions, Reserve Components, in accordance with Army Regulation 135-155, paragraph 2-15b. He was again non-selected. The applicant then enrolled in the Civil Affairs OAC and completed the first phase and was awaiting orders to attend the resident phase. Once again, the applicant requested and was granted a waiver of the military educational requirement. He was then to be reconsidered under the 2001 criteria by an SSB to convened in December 2001, the basis being the military education waiver and a missing officer evaluation report ending 13 August 2000. The waiver did not guarantee selection and if selected by the SSB, the earliest date for promotion would be the date the applicant completed the OAC.

13. He further stated that just prior to the SSB, the Chief, DA Secretariat, Office of Promotion, Reserve Components, expressed an opinion that military education waivers, as referred to in Army Regulation 135-155, could only be granted for a current criteria and not for any past criteria. Further guidance was requested from the Deputy Chief of Staff for Personnel (DCSPER) for a more definitive determination. The DCSPER determination agreed with that of the DS Secretariat, and stated that the Office of Promotions, should cease and desist and it was, therefore, determined that education waivers for past criteria would not be granted. The applicant, as well as many other officers, was then removed.

14. He further opined that even though the applicant had not completed his military education in a timely manner, it is an injustice to the applicant to have been granted a waiver, assigned to an SSB and then removed from the board. At the time the Chief, Office of Promotions made the decision to grant the waiver, it was known to be a valid and proper decision. Cases such as these have been previously processed. The aforementioned determination should have been put into effect after any cases already approved for an SSB had been boarded. The regulation only addressed that exceptions may be granted, it does not specify current or past criteria. Based on the information presented, he recommended that the applicant's request be approved and his records be considered by an SSB.

15. The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 30 May 2003. He concurred on 3 June 2003 and states that regarding the missing officer evaluation report from his tenure in classified status, he has attempted unsuccessfully to find the classified reports from 1994 and 1995. He


has been advised that they cannot be located in the security facility in St. Louis nor through his previous classified unit. He was never in possession of these OER’s due to their classified nature.

16. Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material, 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 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.

17. The regulation also specifies that the Chief, Office of Promotions, is the approval authority for all requests for exception to non-statutory promotion requirements and that requests must contain complete justification. The regulation does not specify that only current year criteria will be considered nor that past year criteria will be considered when an exception has been granted with referral to an SSB.

18. The regulation also specifies that completion of an OAC is required for promotion to lieutenant colonel.

CONCLUSIONS:

1. The Board concludes in this case that the applicant is entitled to promotion reconsideration to major under 2001 criteria by an SSB based on the education waiver previously granted to him on 16 August 2001.

2. The Board notes that the Chief, Office of Promotions, is the approving authority for granting all requests for exception to non-statutory promotion requirements and referral for SSB action when that office has determined that a material error caused the non-selection of an officer by a promotion board under past and current criteria. As in previous cases such as this, other officers have been granted waivers with appropriate consideration by SSB’s.

3. The Board also notes that the applicant was granted a waiver and scheduled for an SSB and subsequently removed from review; however, the determination to cease and desist this practice does not appear to appropriately evaluate the cases already having been approved. It also notes that the determination appears to be based on whether or not an exception is granted for current or past criteria; however, pertinent regulations do not specify current or past criteria.
4. The Board also notes that the applicant was also granted SSB consideration based on a missing officer evaluation report that was not seen by the original board, and if and when the report can be located he is also due reconsideration on that basis.

5. The Board also concludes that as a matter of equity, the applicant's approved request for a waiver and approval for reconsideration by an SSB should be accepted. The determination to cease granting waivers for past year criteria was made after the approval for his reconsideration. The decision to disapprove and withdraw the applicant's reconsideration was administrative, through no fault of the applicant, and he should not be penalized.

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing an approved waiver for the educational requirement for promotion to major, effective 16 August 2001, for the individual concerned.

2. That, following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration under 2001 criteria.

3. That, if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

4. That if selected for promotion and the applicant was separated, his records be further corrected to show:

         a. that his discharge as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge to the date of his return to the Ready Reserve;

         b. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge to the date of return to the Ready Reserve, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         c. that all documents related to his now-voided non-selection for promotion, and his discharge be expunged from his official military records.

5. That if not selected, the applicant be so notified.

BOARD VOTE:

_BJE____ _LCP____ _RWA__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Roger W. Able_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087480
SUFFIX
RECON
DATE BOARDED	20030710
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.10
3.
4.
5.
6.