RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         17 October 2006
      DOCKET NUMBER:  AR20060001662


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, reconsideration of his request that
he be granted a military education waiver; that he be reconsidered for
promotion to colonel by a Special Selection Board (SSB) under the 2002
criteria; and that he be given a Formal Hearing before the Army Board for
Correction of Military Records (ABCMR).

2.  The applicant states, in effect, that he received the ABCMR's Record of
Proceedings on 11 January 2005, and has obtained independent legal reviews.
 He indicates that he has been advised to appeal in Federal Court; however,
in an effort to minimize costs to both sides, he is making this final
request for reconsideration.  He states that his reconsideration request is
based on new evidence, which includes both new facts and arguments, and on
mistake of law and manifest error.  He further states that as part of his
reconsideration request, he is renewing his request for a personal hearing
before an ABCMR formal board.  He claims the regular ABCMR panel of three
members received an inaccurate and legally erroneous presentation of the
evidence for their decision, as reflected in the Record of Proceedings
prepared by the ABCMR staff for approval by the three-member panel.  He
claims this is a violation of his due process rights under law and the
United States Constitution.  He claims the staff opinion approved by the
Board ignores the overwhelming and conclusive evidence.  It misinterprets
one relevant regulation, erroneously applies regulations not in effect at
the time of the events in question, and fails to apply regulations there
were in effect at the time.

3.  The applicant argues that numerous regulations in effect during the
times relevant to his appeal clearly establish that his resident completion
of the Armed Forces Staff College (AFSC) in 1998 resulted in credit
equivalent to the Command and General Staff Officers Course (CGSOC) for
Army Reserve professional schooling and promotion purposes.  He claims that
failure to follow these regulations constitutes legal error, which must be
remedied.  He claims that Army Regulation 351-1 (Individual Military
Education and Training), effective 1 March 1982, clearly stated that
resident completion of the AFSC (along with four other courses) equated to
the CGSOC for career schooling purposes (Paragraph 6a (3) c-5).  He also
claims there is no requirement or provision for additional approval by the
CGSOC Registrar's Office, or any other body, and the regulation provides
all that is necessary to receive the credit is for the course completion to
be entered in appropriate personnel records under pertinent
Army regulations (Paragraph 1-9a (6)).  It further states that once so
entered, personnel will be considered for assignment, promotion, and other
personnel actions on the same basis as resident students of the course
concerned (Paragraph 1-9a (5)).
4.  The applicant claims the promotion board erroneously refused to
recognize his AFSC credit and thus erroneously failed to consider him for
promotion because he had not met the military education requirement.  He
claims that since this version of Army Regulation 351-1 was in effect at
the time he was considered for promotion in 2002, it was binding and
following its provisions was required.  He claims that only after 9 May
2003, this regulation was superseded by the new Army Regulation 350-1,
which deleted the AFSC as an
intermediate-level school equivalent to the CGSOC (Paragraph 3-8).  He
claims this reflects the fact that in late 2000, the AFSC was replaced by
Joint Forces Staff College.

5.  The applicant provides a self-authored letter, extract of Army
Regulation
135-155, dated 1 September 1994, and his 7 January 2003 request for
equivalent credit for the CGSOC in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004103083, on 21 December 2004.

2.  The Record of Proceedings published to document the Board's review of
the case under Docket Number AR2004103083 shows that the applicant attended
and successfully completed a 12-week Joint Combined Warfighting School
(JCWS) at the AFSC from 29 June through 18 September 1998 as a civilian,
which resulted in his being credited with completion of Joint Professional
Military Education (JPME), Phase II, without having completed Phase I.

3.  Paragraph 3-6 a (3) (c) of Army Regulation 351-1 (Individual Military
Education and Training), dated 15 October 1987, in effect at the time the
applicant completed his AFSC course, provided that AFSC served as an
equivalent course to CGSOC for career schooling purposes.  In 1987, the
AFSC JPME consisted of a 6-month resident course.

4.  Army Regulation 351-1 was superseded by Army Regulation 350-1 (Army
Education and Training), dated 9 April 2003.  Pursuant to Army Regulation
350-1, AFSC no longer served as an equivalent course to CGSOC for career
schooling purposes.

5.  In 1986, Congress passed the Goldwater Nichols Department of Defense
Reorganization Act.  This Act included requirements for the DoD to
establish a program of joint military education.  In 1987, Congress
established a working group entitled the Professional Military Education
Panel (the Skelton Panel) to assess DoD’s implementation of the joint
educational requirements specified in the Act.  In 1990, based on the
recommendations of the Skelton Panel, the AFSC retooled the 6-month
curriculum with a 2-phased program for JPME.  Phase I was accomplished by
the intermediate service colleges.  Phase II, consisted of a 12-week
curriculum taught at the AFSC.

6.  The Record of Proceedings also cites Chairman of the Joint Chiefs of
Staff Instruction (CJCSI) 1800.01A, which provides officer Joint
Professional Military Education (JPME) policy and states, in pertinent
part, that completion of JPME Phase II is for sequencing purposes and does
not remove the requirement to complete JPME Phase I.

7.  The Record of Proceedings further indicated that the governing Army
regulation states that USAR officers may submit requests for acceptance of
constructive or equivalent military education credit to the Chief, Army
Reserve, and that acceptance of constructive credit or equivalent credit
for filling academic requirement is subject to approval of the commandant
of the service school having course proponency.  It also indicates the
CGSOC proponent office at
Fort Leavenworth, Kansas (Registrar) determined the applicant's completion
of the 12-week JCWS at the AFSC was not an equivalent course for CGSOC.

8.  In his reconsideration request, the applicant claims that the governing
Army regulations state, in pertinent part, that completion of the AFSC
(along with four other courses) equates to the CGSOC for career schooling
purposes, and the requirement for application to the Chief, Army Reserve
and approval of the Commandant of the service school are applicable to
requests for equivalent courses for schooling other than these identified
courses.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers), dated 13 July 2004, prescribes
policy and procedures used for selecting and promoting commissioned
officers (other than commissioned warrant officers) of the Army National
Guard of the United States (ARNGUS) and of commissioned and warrant
officers (WO) of the United States Army Reserve (USAR).  Paragraph 2-8
outlines military education requirements and lists courses, which includes
the resident AFSC, that provide equivalent credit for CGSOC for promotion
purposes.  This paragraph lists service courses, such as Air Command and
Staff College and the United States Marine Corps Command and Staff College,
both 10-month resident courses, as also qualifying for CGSOC.
10.  The promotion regulation further stipulates, in pertinent part, that
equivalent credit may be awarded to USAR officers by the Chief, Army
Reserve, and that acceptance of constructive credit or equivalent credit
for filling academic requirements is subject to approval of the Commandant
of the service school having course proponency.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records)
 prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  Section IV
contains guidance on hearings and the disposition of applications.  It
states, in pertinent part, that applicant's do not have the right to a
hearing before the ABCMR.  The Director or the ABCMR may grant a formal
hearing whenever justice requires.

12.  CJCSI 1800.01A contains officer professional military education
policy, and is applicable to the Joint Staff, National Defense University,
and the Military Services.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that the clear intention of the governing
regulations is to provide an additional means beyond the CGSOC to obtain
educational credit qualification for Reserve promotion, and these
regulations must be construed in order to give effect to their intent, and
not to defeat it, and the supporting documents he submitted were carefully
considered.  However, there is insufficient evidence to support amendment
of the original Board decision in this case.

2.  The applicant implies that he completed the AFSC and as a result he
should have automatically been granted equivalent credit for the CGSOC for
promotion purposes in accordance with the governing regulations and
policies regarding military education equivalency for CGSOC in effect at
the time he was considered for promotion in 2002.  However, this argument
ignores that the operative provisions of the regulations the applicant
relies on were written before the change to AFSC curriculum in 1990.  The
provisions concerning equivalency of AFSC for CGSOC were later taken out of
these applicable regulations.  This stands as further proof that the AFSC
course attended by the applicant was not equivalent to the 6-month AFSC
curriculum in existence before 1990 or the CGSOC.  The applicant attended a
class at the AFSC, but did not complete the entire AFSC course, which was
the equivalent of CGSOC.

3.  The applicant also took issue with citing CJCSI 1800.01A regarding this
issue because this policy was applicable to only joint staff officers.
This instruction requires joint officers to complete Phase 1 and Phase II
PME.  This instruction underscores the fact that PME, following changes
brought on by the
Goldwater-Nichols Act, became a two-phased program.  The JPME attended by
the applicant was not the equivalent to the 6-month AFSC in existence prior
to 1990.  Likewise, it was not the equivalent to the intermediate level
Service schools.

4.  The evidence of record confirms the applicant completed only one of two
phases of the JCWS, and that that the completion of both Phases of the JCWS
was required to meet the intermediate PME standard for military officers,
and to support automatic CGSOC equivalency for promotion purposes.  Absent
completion of both phases of the course, granting equivalent credit was
subject to approval by the commandant of the service school proponent, who
determined that the applicant's completion of the 12-week Phase II portion
of the JCWS was not equivalent credit for the CGSOC.

5.  The evidence of record confirms the CGSOC school proponent at
Fort Leavenworth determined the 12-week Phase I portion of the JCWS
completed by the applicant was not equivalent to completion of the CGSOC,
and his request for equivalent credit was denied.  As a result, there is an
insufficient evidentiary basis to support granting the requested relief.

6.  Further, by regulation, an applicant is not entitled to a formal
hearing before the ABCMR.  The ABCMR Director or the Board may grant a
formal hearing whenever justice requires.  In this case, there is
insufficient evidence to conclude that a formal hearing is necessary to
serve the interest of justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM  _  ___PBF_  __RCH __  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 to amend the decision of
the ABCMR set forth in Docket Number AR2004103083, dated 21 December 2004.




                                  _____John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001662                           |
|SUFFIX                  |                                        |
|RECON                   |AR2004103083 / 2004/12/21               |
|DATE BOARDED            |2009/10/17                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.1100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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