RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003090452


         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. John N. Slone		Chairperson
Ms. Linda M. Barker		Member
Mr. Richard T. Dunbar		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).


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 provisional position teaching Army Reserve Officer Training Corps (ROTC) since 1998. During this time he received no battalion, brigade or division staff support informing him of any of the pending promotion boards or that he was unable to get an advanced officer course (OAC) assignment. He first learned of his pending discharge without ever being notified of any promotion boards.

3. He also states that he received a confirmation letter in December 2001, stating that he was not eligible for promotion to major due to non-completion of the Infantry OAC (IOAC). He talked with his supervisor and the supervisor encouraged him to get his IOAC completed. He immediately completed the IOAC Phase I and attempted to get scheduled for Phase II. The Summer 2002 course was completely full and he scheduled himself for the next available course starting in June 2003. He was never informed that he was considered or passed over the first time for promotion. He also was never informed that he was in danger of being passed over a second time. In fact the letter dated 1 November 2001 was the first time he had ever been informed that he was eligible for promotion.

4. The applicant provides letters of support from his brigade, battalion, and company commander and his letter from the Chief, Special Actions Branch, Total Army Personnel Command (PERSCOM).

CONSIDERATION OF EVIDENCE:

1. The applicant's military records show he was appointed in the Reserve as a second lieutenant effective 8 June 1989 and entered on active duty effective 10 June 1989.

2. The applicant completed the infantry officer basic course effective 1 December 1989.

3. The applicant was promoted to first lieutenant effective 24 May 1991.

4. He was separated from active duty by reason of unqualified resignation effective 30 September 1992.




5. The applicant was appointed in the Reserve effective 1 October 1992 and appointed in the Nevada Army National Guard (NVARNG) effective 5 November 1992.

6. The applicant was promoted to captain effective 9 September 1994.

7. The applicant's records show he received officer evaluation reports (OER) for the periods ending 5 May 1992, 14 April 1994, and 4 November 1994, in which each rater stated the applicant should be selected for and attend OAC. His OER for the period ending 8 September 1996, Part IV (Performance Evaluation – Professionalism) shows in the comments section a9. (Seeks self-improvement) Enrolled in OAC. The applicant acknowledged receipt of each OER.

8. The applicant was separated from the NVARNG effective 30 December 1997 and transferred to the USAR Control Group (Reinforcement).

9. Based on the required 7 years time in grade, his maximum time in grade date for promotion to major was 8 September 2001.

10. The applicant was considered and not selected for promotion to major by the 2001 and 2002 Reserve Components Selection Boards (RCSB). He was not qualified for promotion based on the lack of the required military education, completion of an OAC.

11. A Notification of Promotion Status memorandum dated 26 July 2001, was mailed to the applicant's current address. The memorandum advised the applicant of his first non-selection for promotion to major due to non-completion of the required military education. The applicant was also advised that he would be considered for promotion the next year.

12. On 17 October 2002, the applicant requested promotion consideration by a special selection board (SSB) through the Office of Promotions, Reserve Components, PERSCOM. On 10 January 2003, that office advised the applicant that since he still had not completed an OAC, he did not have a basis for consideration by a SSB. The applicant was also advised that the provisions for retention no longer exits; therefore, he must be discharged no later than 1 January 2003.

13. In a letter of support dated 2 November 2002, the applicant's brigade commander, in effect, stated that the unit the applicant worked for had no support, no staff officers or noncommissioned officers assigned to manage the Reservists. He also stated that he never received notice of the applicant's non-selection. When verbally notified of the applicant's second non-selection he was


given the impression that the applicant's remedies had been exhausted. He respectfully requested an exception to policy and the opportunity for the applicant to attend the IOAC.

14. In a letter of support dated 10 October 2002, the applicant's battalion commander stated that the applicant's unit never received notification of the applicant's first non-selection or notification that the applicant was in danger of being a two-time non-select. The applicant was a part of a test program that began in 1998 and the brigade had no assigned staff to take care of it. He also stated the brigade submitted a request for the applicant to attend the OAC in May, but the applicant was put on a waiting list. The applicant was scheduled to attend in June 2003.

15. In a letter of support dated 10 October 2002, the applicant's company commander stated that the applicant's non-select letter dated 30 July 2002, was mailed to the unit with a suspense date of 22 September 2002. He requested the applicant be granted a 7-month extension starting 5 October 2002, to allow him the opportunity to get the applicant into an OAC.

16. 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.

17. Army Regulation 135-155 also specifies that in order to be promoted to major an individual must have completed 7 years of time in grade as a captain and an OAC on before the convening date of the respective promotion board.

18. The regulation further specifies that individuals twice not selected for promotion to major will be transferred to the Retired Reserve if they are eligible and request such transfer, or discharged.

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 and his brigade, battalion and company commanders' contentions that they and the applicant never received notification of the applicant's first non-selection and they could not schedule the applicant for an OAC until June 2003 have been noted. However, the applicant was notified on 26 July 2001, at his current address of his first non-selection and the reason. This notification also advised the applicant that he would be considered for promotion the next year in 2002. In fact the applicant was made aware of the need to complete an OAC in 1992 and 1994. Also, his OER for the period ending 8 September 1996, indicated he was enrolled in OAC. It appears the applicant delayed completing an OAC prior to the convening date of the 2001 promotion selection board or earlier in the intervening years from his promotion to captain in 1994.

3. The applicant had not completed his military education by the convening dates of the 2001 and 2002 promotion boards, he was not qualified for promotion without an OAC, and he is also not entitled to promotion reconsideration to major under the 2002 criteria. The requirement for an OAC is a long-standing requirement for promotion to major.

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.

5. Given that the applicant became a captain in 1994 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 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.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__js____ ___lb____ ___rd_____ DENY APPLICATION


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 N. Slone___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090452
SUFFIX
RECON
DATE BOARDED	20040210
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.10
3.
4.
5.
6.