RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 July 2005
      DOCKET NUMBER:  AR20040010417


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 that he be granted a military education waiver
and promotion reconsideration by a special selection board (SSB).

2.  The applicant states that he had attempted to complete the Captain
Career Course (CCC); however, due to a lack of New York State funding and
civilian employment constraints, timely completion was not accomplished.

3.  The applicant provides a DA Form 1059 (Service School Academic
Evaluation Report), his Military Police CCC diploma; and a letter from the
Commanding General of the 42d Infantry Division.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Army National Guard
(ARNG), the applicant accepted a commission in the ARNG on 1 June 1989.  He
was promoted to captain effective 9 July 1996.

2.  By letter dated 7 August 2003, the applicant was notified that he had
been considered but not selected for promotion to major.  His records
indicated he had not completed the required [military] education.

3.  Orders dated 26 May 2004 ordered the applicant to active duty in
support of Operation Iraqi Freedom with a report date of 27 September 2004
for 560 days.  (These orders were amended in June 2005 to show an active
duty period through 7 December 2005).

4.  By letter dated 1 July 2004, the applicant was notified that he had
been considered but not selected for promotion.  As a result of his second
nonselection, he would be discharged not later than 1 January 2005.

5.  The DA Form 1059 provided by the applicant shows he attended the
resident phase (phase II) of the Military Police CCC from 17 May 2004
through               29 September 2004 and successfully completed the
course.

6.  Per email from the National Guard Bureau dated 21 July 2005 and
conversation with the New York ARNG on 27 July 2005, the applicant will
complete phase I (the non-resident phase) of the Military Police CCC upon
his return from his deployment.

7.  In the processing of this case, an advisory opinion was obtained from
the National Guard Bureau.  The advisory opinion noted that the applicant
was not properly briefed by his State military personnel office on the
proper procedures on how to inform the president of the promotion board(s)
that he was enrolled in the Military Police CCC with an expected completion
date of 29 September 2004. The National Guard Bureau recommended that, if
the applicant is not selected for promotion by the selection board that
adjourned on 1 April 2005 (since he was affected by STOP-LOSS he was
considered by that board), then his records should be forwarded to an SSB
for promotion reconsideration.

8.  A copy of the advisory opinion was provided to the applicant.  He
concurred with the advisory opinion.

9.  Army Regulation 135-155 prescribes policy and procedures used in the
selection and promotion of commissioned officers of the Army National Guard
of the United States and commissioned and warrant officers of the U. S.
Army Reserve.  Table 2-1 states that service requirements for promotion
from captain to major by a mandatory board are 7 years in the lower grade.
In pertinent part, it states that, to qualify for selection, commissioned
officers must complete the educational requirements in table 2-2 not later
than the date the selection board convenes.

10.  Army Regulation 135-155, table 2-2 states that, to qualify for
promotion from captain to major, the officer must complete any officer
advanced course not later than the day before the selection board convening
date.  It also states that Headquarters, Department of the Army is the
approval authority for all requests for exception of nonstatutory promotion
requirements.  Requests for exception to nonstatutory promotion
requirements will be forwarded to Headquarters, Department of the Army,
Office of Promotions (Reserve Components).

11.  Army Regulation 135-155 also specifies that promotion reconsideration
     by an 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
that time the individual was considered a reasonable chance would have
resulted that the individual would have been recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1.  It is recognized that the applicant could have begun the steps
necessary to complete an advanced course, at least the non-resident phase,
as early as 1996 when he was promoted to captain.  The applicant does not
explain how a lack of State funding or civilian employment constraints
prevented him from completing the non-resident phase of the Military Police
CCC.

2.  Nevertheless, completion of the required military education is a
regulatory and not a statutory requirement.  The regulation provides for
waivers of nonstatutory promotion requirements.

3.  Notwithstanding the advisory opinion, informing the president of the
promotion board(s) that he was enrolled in the Military Police CCC with an
expected completion date of 29 September 2004 would not have sufficed to
make the applicant eligible for promotion selection (not to mention the
fact he still has not completed the full course).  In addition, since he
still has not completed the full course, he will not be eligible for
promotion selection by the promotion board that adjourned on 1 April 2005.

4.  The applicant has been ordered to active duty in support of Operation
Iraqi Freedom.  Considering his current deployment status, it would be
equitable to show he requested a waiver of the military education
requirement prior to the convening date of the 2003 (and, if necessary, the
2004 and 2005) promotion board and that his waiver was granted.  Promotion
reconsideration to major by an SSB under the 2003 (and, if necessary, the
2004 and 2005) criteria would also be equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __lcb___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the discussion and conclusions in this case, the Board
determined that the evidence presented was not sufficient to warrant a
recommendation for relief.

2.  The Board noted that the applicant has not yet completed the Military
Police CCC – he completed only the resident phase but has not completed the
non-resident phase.  Since he had 6 years to complete the non-resident
phase, distance learning that should not have been constrained by a lack of
State funding or civilian employment considerations, his argument is not
supported by the evidence.




            __William D. Powers___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010417                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050728                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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