RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20060014256


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Laverne V. Berry              |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, promotion consideration to colonel
under the 2005 year criteria by a special selection board (SSB).

2.  The applicant states, in effect, that the previously granted
constructive credit for his military education was not sufficient for the
promotion board and was entered into the personnel system as completion of
the Command and General Staff Officer Course (CGSOC).  He also states that
he believes this action was sufficient since the completion certificate for
the United States Marine Corps (USMC) Command and Staff College is in his
file.  Selection for battalion command and a unit vacancy promotion was
based on this entry and the knowledge of the G1 employee who had researched
and received approval for constructive credit in 2000.  The credit has now
been revalidated and granted again.

3.  The applicant provides copies of his certificate for the USMC Command
and Staff College Non-Resident Program; his Certificate of Completion for
the Naval War College National Security Decision Making course; a letter
from the Director, Non-Resident Studies, US Army Command and General Staff
College (CGSC), Fort Leavenworth, Kansas; a letter granting credit for his
USMC military education from the Deputy Assistant Adjutant General, Texas
Army National Guard (TXARNG), and copy of a rebuttal to the advisory
opinion, The Adjutant General, Texas Military Forces Joint Forces
Headquarters Adjutant General’s Department  in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant submits a copy of his certificate for completion of the
USMC Command and Staff College Non-Resident Program dated 15 January 1987.

2.  The applicant's military records show he was appointed in the TXARNG,
as a captain, effective 4 February 1995, with prior USMC commissioned
service.  He was promoted to major effective 23 July 1996.

3.  The applicant submits a copy of a Certificate of Completion of the
Naval War College Graduate-Level Non-Resident Curriculum in National
Security Decision Making, from the Department of the Navy, Naval War
College, dated 15 April 1997.

4.  The applicant was promoted to lieutenant colonel effective 22 June
2001.

5.  The applicant was considered and not selected for promotion to colonel
by the 2005 Reserve Components Selection Board (RCSB) that convened on 12
July 2005.  He was not selected due to not completing the CGSOC on or
before the board convening dates.

6.  The applicant also submits a copy of a letter, dated 15 February 2006,
from the Director, Non-Resident Studies, US Army CGSC, Fort Leavenworth,
Kansas, that stated the applicant's request to re-enroll into the
Intermediate Level Education (ILE) Common Core option had been disapproved.
 The letter advised the applicant to go back to the Guard Bureau because he
had completed the USMC course while he was a member of the USMC and the
course counted.  The letter also advised him that the Army did not
recognize the USMC-Non-Resident course for Army personnel, but it was
transferable if he completed it while he was in the USMC.

7.  The applicant further submits a copy of a letter, dated 12 May 2006,
from the Deputy Assistant Adjutant General, TXARNG, granting the applicant
Military Education Level-Four (MLED-4) equivalency.  The Deputy Assistant
Adjutant General stated that the applicant attended the USMC Non-Resident
course while on active duty in the USMC and met the education requirements
for promotion to colonel.

8.  The applicant was considered and not selected for promotion to colonel
by the 2006 RCSB that convened on 11 July 2006.  He was not selected due to
not completing the CGSOC on or before the board convening dates.

9.  In an advisory opinion, dated 11 May 2007, the Chief, Personnel
Division, Departments of the Army and the Air Force, National Guard Bureau
(NGB), reiterates the applicant's request and statements.  The NGB official
stated the applicant completed the USMC Command and Staff College (Non-
resident program) on 15 January 1987, as a first lieutenant, while serving
with the USMC. On 4 February 1995, he was initially appointed in the
TXARNG, as a captain and promoted to major on 23 July 1996.  On 19 December
1997, he completed his master’s degree in Civil Engineering and was
promoted to lieutenant colonel effective 22 June 2001.  The Human Resources
Command (HRC), St. Louis, Missouri, sent a memorandum of notification of
promotion status as not selected for promotion to colonel by the RCSB that
convened on 12 July 2005.

10.  The NGB official also stated that on 15 February 2006, the US Army
CGSC sent a memorandum to the applicant, notifying him that his request for
re-enrollment into the ILE Common Core was disapproved.  The reason for the
disapproval was that the Army did not recognize the USMC Non-Resident
course for Army personnel, but it was transferable if the CGSC was
completed while he was in the USMC.  State Order Number 196-1007, dated 15
July 2006, was published transferring the applicant to the State
Headquarters as the Commander of the Facilities Engineer (colonel
position).  The NGB, Army Strength Maintenance Division, verified the
position as that for a colonel.  The Deputy Assistant Adjutant General sent
a memorandum to HRC, St. Louis, Chief, Office of Promotions, on 12 May
2006, reference the applicant's MLED-4 equivalency, which stated that the
applicant was granted MLED-4 equivalency for the USMC Non-Resident course.
On 24 October 2006, the HRC, St. Louis, sent a memorandum for notification
of promotion status as not selected for promotion to colonel for the
promotion selection board that convened on 11 July 2006.

11.  The NGB official further stated that National Guard Regulation 600-
100, Chapter 8, dated 15 April 1994, states that for promotion to colonel,
the officers must have completed the six phases of CGSC or equivalent group
1 course in accordance with appendix E.  The appendix lists the USMC
Command and Staff College course (resident) as equivalent to the Army CGSC.


12.  The NGB official recommended disapproval of the applicant's request
for consideration by a SSB under the 2005 year criteria, due to the Marine
Corps CGSC Non-Resident course is not valid for promotion to colonel in
accordance with regulatory guidance.

13.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal in May 2007.  In his rebuttal, dated 5 June
2007, the applicant stated that the NGB and HRC have granted him, revoked,
and then re-granted him credit for the MLED-4.  Army administration of this
matter over time is inconsistent, indecisive, and incorrect.  Denial of
MLED-4 credit for his first 2005 colonel non-selection prejudiced his
second and subsequent boards.  Selection board statistics consistently show
second looks prejudice for non-selection.  The NGB accepted his MLED-4
education as a captain transferring him from the USMC.  The NGB certified
his MLED-4 credit again by federal recognition and promotion to lieutenant
colonel on 22 June 2001.  Promotion to lieutenant colonel required 50
percent completion of the CGSOC.

14.  The applicant also stated that the TXARNG, acting on the basis of NGB
approvals, selected and assigned him to a Battalion Command on 4 August
2002 (requires 100 percent completion of the CGSC).  The US Army
Engineering School accepted his MLED-4 credentials for Pre Command Course.
Having already received MLED-4 credit, he disenrolled from the CGSC to
focus on his responsibilities as a Battalion Commander.

15.  The applicant further stated that the NGB decisions and actions have
been inconsistent; their advisory opinion cannot be given credence without
a detailed explanation of how they approved promotion to lieutenant colonel
without awarding MLED-4 credit.  HRC promotion boards have reversed
themselves based upon the same facts and circumstances.  The NGB and HRC
have all decided the issue without completing the full process required by
Army Regulation 350-1 and transmitting the issue to the final disposition
authority, Headquarters, Department of the Army, G-3.

16.  The applicant also stated that there was no alternative remedy other
than awarding equivalent or constructive credit that allows him to continue
to serve the Army.  The CGSC has denied re-enrollment in the course based
upon his time in service.  The applicant requested the Army Board for
Correction of Military Records (ABCMR) publish a specific and final
decision granting him MLED-4 equivalent and/or constructive credit.  Given
the time since promotion to lieutenant colonel, request the ABCMR make this
decision on its authority without delay or referral to any other Army
commander or agency.  Given the foregoing request, the ABCMR direct
consideration by a SSB to restore his opportunity to be reconsidered in the
primary zone of consideration, fully educationally qualified, and without
the prejudice of a prior non-selection.

17.  Army Regulation 135-155, prescribes the policies and procedures for
promotion of Reserve and ARNG officers.  This regulation specifies that
promotion consideration/reconsideration by a SSB may only be based on
erroneous non-consideration or material, 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.

18.  Army Regulation 135-155 also specifies that in order to be qualified
for promotion to colonel, an individual must have completed the Command and
General Staff Officer Course (non-resident and resident phases) on or
before the convening date of their respective board.




DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to promotion consideration to colonel under the 2005 year criteria
by a SSB.  He has not shown error, injustice, or inequity for the relief he
now requests.

2.  The applicant contends that the MLED-4 equivalency for completion of
the USMC Non-Resident course is equivalent for promotion to colonel in the
Army Reserve.  However, pertinent Army and ARNG regulations specifically
state that the completion of the CGSOC, both non-resident and resident
phase, is required for promotion to colonel.  The applicant only completed
the non-resident phase of the USMC Command and Staff College; there is no
evidence that he completed the resident phase.  Therefore, applicant needed
to also complete the USMC Command and Staff College resident phase for
equivalency for the Army CGSOC and to be eligible for promotion to colonel
in the Army Reserve.

3.  The requirement for completion of the CGSOC (non-resident and resident
phases) is a long-standing requirement for promotion to colonel.  The
applicant had from the time of his promotion to lieutenant colonel to
assure completion of the required Army military education prior to any Army
Reserve promotion considerations.  Therefore, the applicant is not entitled
to the relief he is now requesting.

4.  It is also noted that the applicant has been granted MLED-4 equivalency
for completion of the USMC Command and Staff College Non-Resident course,
as he was entitled.  However, with or without the MLED-4 equivalency, he
still would not be eligible for promotion consideration by a SSB or
promotion to colonel if he has not completed the resident phase of the
GCSOC.  Therefore, it is concluded that the contention by the applicant
regarding MLED-4 equivalency is without merit.

5.  There is no indication that the applicant’s non-selection to colonel in
2005 was unjust or inequitable.  There is no evidence of record that shows
that his non-selection was contrary to law.  Without evidence to show
otherwise, it is concluded that the applicant was properly considered for
promotion.

6.  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

___JEA__  ___LVB _  ___RDG_  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.




                                  ___James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000629                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/18                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |136.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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