RECORD OF PROCEEDINGS


      IN THE CASE OF:             .


      BOARD DATE:            15 SEPTEMBER 2005
      DOCKET NUMBER:         AR20050000003


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 the restoration of his commission as a captain
in the United States Army Reserve (USAR).

2.  The applicant states, in effect, that he was discharged because he had
not completed his officer advanced course prior to being considered for
promotion to the rank of major and was twice nonselected for promotion.  He
goes on to state that he was deployed to Bosnia when his second selection
occurred and contends that the relook board ignored the fact that there was
no scheduled Civil Affairs Officer Advanced Course until June 2000.  He
continues by stating that he believes it to be materially unfair to
penalize him in this manner since he is filling a need that is in the best
interest of the Army, in an area that is currently experiencing severe
stress and shortages of personnel due to the current operational tempo.  He
also states that he worked very hard to achieve his Civil Affairs
qualifications and believes that his restoration as a Civil Affairs captain
would be in the Army’s best interest.

3.  The applicant provides a copy of his completion certificate for the
Civil Affairs Officer Advanced Course, a copy of his waiver for military
education, copies of his last two officer evaluation reports before his
discharge, a copy of his last enlisted evaluation report, a partial article
from the October 2004, Soldiers Magazine, a biographical summary, and
documents/correspondence related to his administrative attempts to have his
commission reinstated.

CONSIDERATION OF EVIDENCE:

1.  He was born on 31 October 1954 and enlisted in the Maryland Army
National Guard (MDARNG) on 28 August 1982.  He attained the pay grade of E-
6 on 1 May 1984 and was honorably discharged on 10 August 1985, upon
completion of officer candidate school (OCS), to accept an appointment as a
commissioned officer.  On 11 August 1985, he was commissioned as a National
Guard second lieutenant with a waiver for age.

2.  He was ordered to active duty for training (ADT) at Fort Benning,
Georgia, to attend the infantry officer basic course on 14 September 1985.
He completed that course and was released from ADT on 15 February 1986.  He
subsequently attended and completed the Field Artillery Officer Basic
Course in September 1987.

3.  He was honorably discharged from the MDARNG on 23 July 1986 and was
subsequently commissioned in the Florida Army National Guard (FLARNG).

4.  He was promoted to the rank of first lieutenant (1LT) on 10 August 1988
and on 17 October 1990, he was honorably discharged from the FLARNG and was
transferred to the USAR Control Group (Reinforcement) on 17 October 1990.

5.  On 9 August 1992, he was promoted to the rank of captain.  He was still
serving as a USAR Field Artillery officer in the Reinforcement Control
Group and on 19 April 1999, he was transferred to a USAR Troop Program Unit
in Atlanta, Georgia, for the purpose of mobilization.

6.  Meanwhile, the applicant was considered for promotion to the rank of
major by the 1999 Reserve Components Selection Board and was not selected.
The applicant was also not eligible for selection because he did not meet
the education requirements for promotion, which was completion of an
officer advance course.

7.  He was ordered to active duty on 2 May 1999, in support of Operation
Joint Forge and remained on active duty until 1 March 2000, when he was
released from active duty and was transferred to the USAR Control Group
(Individual Ready Reserve (IRR)).  He served as a field artillery officer
performing the duties of a G3 Battle Captain.

8.  The applicant had enrolled in the Civil Affairs Officer Advance Course
(correspondence studies) and completed that course and was transferred to a
Civil Affairs unit in St Perrine, Florida, on 19 July 2000.

9.  Meanwhile, the Reserve Component Major Selection Board convened on
7 March 2000 and the applicant was again non-selected.  The letter
notifying the applicant that he was then twice nonselected was dispatched
on 10 August 2000 with instruction to the applicant that he must be
separated no later than 1 February 2001.

10.  However, on 5 April 2000, the applicant was granted an educational
waiver for promotion and a determination was made that he was entitled to
reconsideration for promotion by a Special Selection Board (SSB).



11.  On 16 April 2001, a memorandum was dispatched to the applicant from
the Total Army Personnel Command in St. Louis, Missouri, advising him that
a SSB had convened to consider him for promotion to the rank of major under
the 2000 criteria and he was again nonselected.

12.  On 1 May 2001, he was honorably discharged from the USAR under the
provisions of Army Regulation 135-175, due to being twice nonselected for
promotion.

13.  On 1 July 2002, he enlisted in the USAR in the pay grade of E-5 for a
period of 2 years in military occupational specialty (MOS) 55b
(Ammunition/Stock Control and Accounting Specialist).  He was assigned to
an Area Support Group in St. Petersburg, Florida.

14.  On 29 September 2003, the Total Army Personnel Command – St Louis
notified the applicant that his application for reappointment was being
returned without action because he had been twice nonselected for promotion
and was ineligible for reappointment.  He was advised that he could apply
for appointment as a warrant officer.

15.  In the processing of this case a staff advisory opinion was obtained
from the Office of Promotions, Reserve Components, Human Resources Command
(HRC) – St Louis, which opines, in effect, that while the reasons for his
nonselection are unknown, the applicant could not be selected based on the
fact that he had not completed the Officer Advance Course by the convene
date of the boards that nonselected him.  Additionally, after he received a
waiver of the educational requirements, he was still nonselected by a SSB.
Officials at the HRC also noted that the applicant was separated from the
National Guard in 1990 and was assigned to the USAR Control Group (IRR)
from October 1990 through May 1999 and had over 7 years to complete an
advance course.  The HRC officials recommended that his request be denied.

16.  The advisory opinion was provided to the applicant for comment and he
responded to the effect that he did not realize at the time he began the
Civil Affairs Officer Advance Course that he could not complete it before
the second selection board convened and that he exercised due diligence to
complete the course as quickly as possible.  He goes on to explain the
difficulties his deployment to Bosnia had on his ability to ensure
everything was on track.  He also contends that he did not receive a fair
relook by the SSB because they did not allow any new documents that were
not previously reviewed to be added to his file, which was unfair because
his service in Bosnia should have been considered.  He continues by stating
that the true reason that he was nonselected was not being educationally
qualified, a condition he since corrected and the SSB did not consider the
fact that he was actively enrolled in the course at the time of the Board’s
deliberations.  Therefore, the Board based its decision on incorrect
information regarding his military education.  He submits 11 exhibits with
his rebuttal in a bound folder.

17.  Army Regulation 135-100 establishes the responsibility and provides
procedures for the appointment of commissioned officers in the Reserve
Components of the Army.  It provides in paragraph 1-7 that commissioned
officers twice passed over for promotion or otherwise released from active
duty or active status are not eligible for appointment unless a waiver is
authorized.

18.  Army Regulation 135-100 provides the policies and procedures for the
selection and promotion of commissioned officers in the USAR.  It provides,
in pertinent part, that selection boards will recommend a specified number
of commissioned officers from the zones of consideration who are best
qualified to meet the needs of the Army.  Soldiers who are not selected for
promotion will not be provided specific reasons for nonselection.  Board
members may not record their reasons or give reasons for selection or
nonselection.  It further provides that no Soldier may appear in person
before a Department of the Army (DA) Selection Board; however, a Soldier
within the announced zone may write to the president of the board inviting
attention to any matter he or she feels is important in considering his or
her record.  Standby Boards are not constrained by selection quotas in
their deliberations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was discharged because he had not
completed his officer advance course has been noted and found to be without
merit.  While his first two nonselections may very well have been because
he was not educationally qualified, he received a waiver of his educational
requirements prior to being reconsidered by a SSB, which essentially took
the education requirements out of the equation when being considered by the
SSB.

2.  However, even after taking the education requirements out of
consideration, the applicant was still not selected for promotion.

3.  The applicant’s contention that he was not given fair consideration by
the SSB because the SSB did not consider that he was enrolled in the
advance course and did not review his service in Bosnia has been noted and
also found to be without merit.  The applicant received an education waiver
which took that element out of consideration and the SSB was obligated to
review only those records that were previously reviewed and those added
documents that were in effect before the original board convened.  Any
documents dated after the convene date of the board were not authorized for
consideration.  Additionally, it was the applicant’s responsibility to
ensure that all documents that were authorized to be reviewed were in his
records to be reviewed by the selection board.

4.  It is also noted that the applicant had the option to write to the
selection boards to bring to the attention of the president of the
selection boards any information he deemed important to the consideration
of his records.

5.  The applicant’s contention that the first available Civil Affairs
Advance Course was not scheduled until June 2000, three months after the
selection board convened has also been noted.  However, it is also noted
that the applicant waited until after he had been passed over once to begin
his advance course, which was essentially too late.

6.  The applicant had sufficient time during his service in the USAR
Control Group after his promotion to the rank of captain in 1992 to
complete an advance course in his career field (field artillery) or any
other career field.  Therefore, the fact that he waited until the last
minute to change his career field and pursue a different career path at the
time he was being considered for promotion does not constitute an error or
injustice on the part of the Department.

7.  While it cannot be determined why he was not selected for promotion by
the SSB, the fact that he received an education waiver clearly rules out
that he was passed over for not meeting education requirements.

8.  Accordingly, it appears that he was properly considered for promotion
to the rank of major and after being twice nonselected, he was properly
discharged from the USAR.  Therefore, there appears to be no basis to grant
his request to have his commission reinstated.

9.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS  __  ___EA __  ___CK __  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                 |AR20050000003                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/15                              |
|TYPE OF DISCHARGE       |N/A USAR TPU SM                         |
|DATE OF DISCHARGE       |N/A USAR TPU SM                         |
|DISCHARGE AUTHORITY     |N/A USAR TPU SM                         |
|DISCHARGE REASON        |N/A USAR TPU SM                         |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |14/reinstate commission                 |
|1.102.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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