RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050016368


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, in effect, adjustment to promotion to
lieutenant colonel to 22 December 2004.

2.  The applicant states, in effect, that participation in Operation Iraqi
Freedom (OIF) prevented him from being educationally qualified for the 2004
Lieutenant Colonel Reserve Components Selection Board (RCSB).  He also
states that several officers attending the resident course of the Command
and General Staff Officers Course (CGSOC) were allowed to continue their
education instead of being returned to their units in support of OIF.  He
further states that he was not afforded that opportunity.  In late January
2003, he was activated with his unit to execute OIF and resulted in his
involuntary disenrollment from the CGSOC.  He returned from OIF in February
2004 and his promotion board was meeting later that same year.  Because he
was considered not educationally qualified (NEQ), he had to submit a
request for a waiver of the education requirements to the board.  He was
granted the waiver.  He was selected for lieutenant colonel on 12 December
2004 and received a promotion order effective 22 December 2004.

3.  The applicant further states that because he had not completed 50
percent of the CGSOC at that time, he was unable to be promoted and the
promotion order was rescinded effective 8 March 2005.  Although he was in
the process of completing the correspondence course for Phase I (the
United States Army Reserve (USAR) School option was no longer available
for him or for his former fellow students), he did not get promoted until
28 June 2005, shortly after finishing 50 percent of the CGSOC via
correspondence.  He is supported by the Chief of Staff, Colonel _______,
who believes that the applicant being considered NEQ by the 2004 RCSB was
the direct results of mobilizing for OIF.

4.  The applicant also states that the Chief of Staff explained to him,
that his not being considered educationally qualified until June 2005 had
absolutely no bearing whatsoever on this matter.  The specific problem
being addressed was that his mobilization for OIF resulted in him being
considered NEQ by the promotion board.  On this basis, there seems to be
just cause for requesting his promotion order be backdated.  The Chief of
Staff also advised him that he had precedent for his request since several
officers in the resident course of the CGSOC were allowed to stay and
complete their educational requirements, rather than being returned to
their units for deployment to OIF.  Further, this precedent was documented
in an Army Times article sometime in 2003, wherein a representative of the
CGSOC school's resident course at Fort Leavenworth was quoted as saying,
that the school took steps to ensure students were not disenrolled,
to protect them from OIF delaying their eligibility for promotion.
5.  In summary, the applicant states that his 2002-2003 enrollment in the
non-resident program for the CGSOC would have allowed him to complete Phase
I at the beginning of May 2003, attend Phase II at the end of May 2003, and
he would have been educationally qualified for promotion to lieutenant
colonel by the middle of June 2003.  This being the case, his promotion
order with the effective date of 22 December 2004 would not have been
rescinded.

6.  In support of his request, the applicant provides copies of his request
for an educational waiver memorandum, his promotion memorandum for
lieutenant colonel, his revocation of promotion memorandum for lieutenant
colonel, and his promotion orders for lieutenant colonel.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR,
Armor Branch, as a second lieutenant, effective 15 March 1985.  He was
promoted to first lieutenant effective 14 March 1988.

2.  He was promoted to captain effective 13 March 1992 and to major
effective 28 September 1998.

3.  He was released from active duty effective 27 March 2004 for return
from deployment/completion of required active duty.

4.  In a memorandum, dated 13 July 2004, the Chief, Office of Promotions,
Reserve Components, Human Resources Command (HRC), St. Louis, Missouri,
advised that in accordance with Army Regulation 135-155, paragraph 2-15b,
he was granted a waiver of the military educational requirement for
promotion to lieutenant colonel for the 2004 promotion board.  The
memorandum also advised that if selected for promotion, he had 18 months
from the approval date of the board to complete the education requirements.
 He would not be promoted until he completed 50 percent of the CGSOC and
his date of rank would be the completion date.

5.  He was considered and selected for promotion to lieutenant colonel by
the 2004 RCSB that convened on 8 September and recessed on 1 October 2004.
The President approved the board results on 1 December 2004.

6.  He was issued a promotion memorandum, dated 11 February 2005,
indicating his promotion to lieutenant colonel with a promotion effective
date and date of rank of 22 December 2004.

7.  In a memorandum, dated 8 March 2005, the Director, Personnel Actions
and Services, HRC, St. Louis, advised the applicant, and his command, that
the applicant was erroneously promoted to the rank of lieutenant colonel.
Information was received that he was considered for promotion based on a
waiver granted for his military education.  Unfortunately, there was no
provision to promote the applicant to lieutenant colonel until that
education was completed. The memorandum requested that if the applicant had
completed the required education, he must submit documentation of
completion to the HRC.

8.  He completed 50 percent of the CGSOC effective 28 June 2005.

9.  He was issued a promotion memorandum, dated 7 July 2005, indicating his
promotion to lieutenant colonel with a promotion effective date and date of
rank of 28 June 2005.

10.  In an advisory opinion, dated 20 April 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, Human Resources
Command – St. Louis, Missouri, stated that the applicant was promoted to
major on 28 September 1998.  He could have enrolled in the CGSOC anytime
after he was promoted to major.  Information has been received that he
applied for the course on 7 June 2002 and that the course would be in
session from 4 October 2002 to 18 May 2003.  The applicant was a member of
a unit and attended the course one weekend a month in lieu of drill.  The
applicant's situation was different from the officers attending the
resident course in that he was not attending the course on a daily basis
nor that his attendance required either a permanent change of station or a
temporary change of station.  It should be noted that the applicant had the
option of applying for the resident CGSOC; however, he opted for the
weekend course.  In view of the foregoing, it was recommended his request
be denied.

11.  The opinion was forwarded to the applicant for
acknowledgement/rebuttal on 12 July 2006.  He did not respond.

12.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that in order to
be promoted to lieutenant colonel an individual must have completed 7 years
of time in grade as a major and 50 percent of the CGSOC on or before the
convening date of the respective promotion board.

13.  Army Regulation 135-155, paragraph 2-15b, also specifies that the
Chief, Office of Promotions, is the approval authority for all current
criteria requests for exception to non-statutory promotion requirements
(i.e., civilian and/or military education), and that requests must contain
complete justification and be received prior to the board convening date.
The ABCMR has the authority to grant a waiver for the civilian and/or
military education for past criteria.

14.  Army Regulation 135-155, paragraph 3-18,c.(1), further specifies that
an officer whose promotion has been announced will be notified immediately
on preliminary determination that the promotion was unauthorized.  The
notice will inform the officer of the basis for the preliminary
determination.  The officer may submit matters in rebuttal, in writing,
within 30 days from the date of delivery.  Headquarters, Department of the
Army (HQDA), will review any rebuttal materials submitted by the officer.
HQDA will then make the final determination regarding the validity of the
promotion and if the officer served in a de facto status in the grade to
which he was invalidly promoted.  Revocation of promotion orders, if
appropriate, will occur after these final HQDA determinations.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to adjustment to his date of rank for lieutenant colonel to 22
December 2004.  He has not shown error, injustice, or inequity for the
relief he now requests.

2.  The applicant contends that participation in OIF from January 2003 to
February 2004 prevented him from being educationally qualified for the 2004
RCSB.  However, by his own admission he did not enroll in the CGSOC until
2002, leaving him with a little less than 2 years to complete the course in
order to be found educationally qualified for promotion to lieutenant
colonel in 2004.  Based on information received by HRC, the applicant
attended the course one weekend a month in lieu of drill.  It was also
noted that the applicant had the option of applying for the resident CGSOC;
however, he opted for the weekend course.  Therefore, it appears by
choosing the weekend course, the applicant may have denied himself the
opportunity to stay and complete the CGSOC, the same as other officers in
the resident course, and complete the educational requirements rather than
being deployed with their units.

3.  The applicant has not satisfactorily shown that his deployment in
January 2003 delayed his enrolling in and completing 50 percent of the
CGSOC in a timely manner.  The requirement for 50 percent completion of
CGSOC is a long-standing requirement for promotion to lieutenant colonel.
The applicant was promoted to major in 1998 and could have enrolled in the
CGSOC anytime after he was promoted to major.  Therefore, he would have had
at least 7 years to complete the required military education.  There was
ample time for him to complete the educational requirement before he could
expect promotion consideration to lieutenant colonel and in advance of the
2004 RCSB.  Therefore, the applicant is not entitled to the relief he is
now requesting.

4.  Based on the fact that the applicant was granted a waiver of the
education for the 2004 RCSB and had not completed his military education by
the convening date of the 2004 RCSB, he was not qualified for promotion
until he had completed 50 percent of the CGSOC.  Therefore, his promotion
to lieutenant colonel was appropriately rescinded in accordance with
pertinent regulations.  He was correctly promoted to lieutenant colonel on
28 June 2005, the date he completed 50 percent of the CGSOC.  In order for
the applicant to be promoted on 22 December 2004, based on his selection,
he must have completed the required military education on or before that
date.  He was not eligible for promotion until this requirement was met.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JLP____  __LDS___  ___J____  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.




                                  ___Linda D. Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016368                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.05                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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