RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 January 2005
      DOCKET NUMBER:  AR2004106890


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 waiver of completion of the Military
Intelligence (MI) branch Officer Advanced Course (OAC) and reconsideration
for promotion to major.

2.  The applicant states that during mobilization for Operation Enduring
Freedom, he could not attend the resident phrase of the OAC, even though he
had completed the correspondence phrase.  He relates that, shortly after
mobilization at Fort Huachuca, Arizona, he and other MI officers were told
that they could not attend resident courses, even though they were located
on the same installation. After assignment to the Combined Joint Task Force-
Horn of Africa he tried to get temporary additional duty to complete the
OAC but was too busy.  Prior to mobilization he had been unable to complete
the course because of commitments to his civilian employer and his efforts
to complete a Masters in Business Administration and to become qualified as
a Certified Public Accountant.

3.  The applicant provides, an Officer Evaluation Report (OER) for the
period 3 May 2003 through 16 February 2004, orders to and from active duty
with the Combined Joint Task Force-Horn of Africa, his  DD Form 214
(Certificate of Release or Discharge from Active Duty) for the period 1
March 2003 through 28 February 2004, a Certificate of Completion for the MI
Career Captains Course phases 1 and 3, and the citation for his Joint
Service Commendation Medal for the period 3 May 2003 to 16 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant completed the Reserve Officer Training Corps requirements
and was appointed an MI branch Army Reserve (USAR) second lieutenant in May
1988.  He entered  Initial Active Duty for Training (IADT), completed the
MI Basic Officer Course and was released from IADT in April 1989.  He
served in various USAR Troop Program Units, was promoted to captain in May
1995 and completed the MI Security Management Course in July 1995.  He was
voluntarily transferred to the USAR Control Group (Reinforcement) in
November 1997.  An official college transcript in his record shows he was
enrolled in a graduate school accounting program in 1996 and 1997.

2.  In March 2002 the applicant was notified that he had been considered
but not selected for promotion by a mandatory Reserve Components Selection
Board.  He was informed that he could not have been selected because he had
not completed the military education requirement [the MI OAC].

3.  13 February 2003 orders from the Army Reserve Personnel Command
(ARPERSCOM) notifies that he was being mobilized in support of Operation
Enduring Freedom.  He was to report to Fort Huachuca, Arizona between
1 and  3 March 2003.

4.  In August 2003 he was notified of the second non-selection for
promotion and informed that he was subject to be mandatory discharge unless
he was eligible for transfer to the Retired Reserve.  His discharge was
scheduled on or about 1 February 2004.

5.  The OER submitted by the applicant shows that from 3 May 2003 through
16 February 2004 he served as the Joint Intelligence Center Fusion Chief
for Somalia and was personally selected by the Commander, Combined Joint
Task Force-Horn of Africa to command the task force's element in Ethiopia.

6.  The citation which he submitted shows he was awarded the Joint Service
Commendation Medal for his "outstanding professionalism and leadership" in
the above assignment.  He was released from active duty and transferred to
the USAR Control Group (Reinforcement) on 28 February 2004.

7.  The Chief, Special Actions Branch, Office of Promotions, Reserve
Components, Human Resources Command, St. Louis noted that the applicant was
not considered for promotion to major by the 2004 RCSB and that, if he had
completed the OAC, he would have a basis for reconsideration by a Special
Selection Board under the 2004 criteria.  The opinion noted that the Office
of Promotions can only grant waivers prior to the convening date of the
board; therefore, the applicant's request had to be denied.  Accordingly,
the applicant had correctly applied to the Army Board for Correction of
Military Records.  Since the applicant was mobilized for almost a year the
Chief, Special Actions Branch, Office of Promotions recommended that the
OAC be waived and the applicant be considered for promotion by a special
selection board under the 2004 criteria.  If he is selected for promotion
to major he should be given 18 months to complete the OAC.

8.  The opinion was forwarded to the applicant for his
acknowledgment/rebuttal on 14 June 2004.  He did not respond.

9.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  This regulation specifies that promotion
reconsideration by a special selection board 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 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.

10.  The regulation also specifies that completion of an OAC not later than
the day before the selection board convening date is required for promotion
qualification to major.

11.  The regulation also specifies that a captain who has failed selection
for promotion to major for the second time will be removed from active
Reserve status unless the officer can be credited with 18 or more but less
20 years of qualifying service for retired pay.

12.  Army Regulation 135-155 also specifies that the Chief, Office of
Promotions, Reserve Components, PERSCOM is the approval authority for all
requests for exception to non-statutory promotion requirements and that
requests must contain complete justification.

DISCUSSION AND CONCLUSIONS:

1.  In this case, the applicant requested an education waiver and
consideration by a special selection board because he could not complete
the OAC while he was mobilized.

2.  As a matter of equity, because he did not have a reasonable opportunity
to complete the OAC,  the applicant should be granted a waiver of military
education requirement and promotion reconsideration to major by an SSB
under the 2004 criteria.  If the applicant is considered and selected for
promotion by a SSB he will have 18 months from the board approval date to
complete the military education.

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

BOARD VOTE:

__ BPI __  __LCB __  __DRT___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing that the military educational requirement for
promotion to major is waived.

2.  That, following administrative implementation of the foregoing, his
records be submitted to a duly constituted special selection board for
promotion reconsideration under the 2004 criteria.

3.  That, if selected and provided he was otherwise qualified, 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.

4.  That, if selected he has 18 months to complete the OAC or be
selectively separated.

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

      a.  that his discharge, 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 Ready Reserve
status, 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 by the 2004 RCSB, and his discharge be expunged from his official
military records.

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





                                  _     _Bernard P. Ingold______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106890                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050119                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |133.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]