RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 September 2007
      DOCKET NUMBER:  AR20070006144


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Larry C. Bergquist            |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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, that he be considered for promotion
to lieutenant colonel (LTC) by a special selection board (SSB) under the
criteria of the 2005 and 2006 Department of the Army Reserve Components
Selection Boards (RCSBs).

2.  The applicant states that his date of rank (DOR) to major (MAJ) was
corrected by the Army Board for Correction of Military Records (ABCMR) in
Docket Number AR20050006072; however, it took well into September 2006 to
get all of the order corrections posted in his records.

3.  After all of his corrections were made, he contacted the U. S. Army
Reserve Command to request an SSB.  He was told an SSB could be set up, but
they could only consider educational waivers submitted before the board
convened.  After the board convened, he would need to request relief
through the ABCMR.  He has personally met five officers who are at about
the same place in phase     2 of the Intermediate-Level Education (ILE) as
he is and they were given educational waivers and found promotable by the
board.

4.  The applicant states that he had two and a half fewer years than his
peers to complete the educational requirement due to his DOR error.  He
could not be enrolled in the Command and General Staff Officer Course
(CGSOC) until he was promotable to major.  Upon becoming promotable in July
2002, he immediately enrolled in the classroom CGSOC and started phase one
in October 2002.  In December 2002, he was assigned to a unit that was
alerted for deployment.  He was told to put CGSOC on the side and focus on
deployment preparations.  He left the classroom and enrolled in
correspondence in January 2003.  They were taken off alert in March 2003
and he started doing the correspondence but was overrun by the requirements
of his civilian job.

5.  The applicant states it was not until he was mobilized in January 2005
that he was really able to start back to work on the correspondence course.
 Progress was very slow and he fell just short of finishing 50 percent
before the course became too dated and he was forced to switch to ILE.  It
took a couple of months to switch to ILE because he needed a waiver for
being commissioned over        18 years and he could not get into the
classroom version, so he enrolled in the web-based version.  He was
assigned to an O-5 position in April 2004 and took the place of an O-5 upon
mobilization.

6.  The applicant provides page 7 of ABCMR Docket Number AR20050006072,
dated 30 March 2006; a memorandum to the Office of Promotions, U. S. Army
Human Resources Command – St. Louis (USAHRC – STL), dated 20 April  2007;
two Officer Evaluation Reports, for the period ending 5 February 2005 (with
an approved exception to policy for senior rater) and the period ending
  5 February 2006; and a DA Form 1059 (Service School Academic Evaluation
Report).

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was appointed a captain
in the New York Army National Guard (NYARNG) on 1 January 1999.  He was
twice non-selected for promotion to MAJ.  He was considered and recommended
for promotion to MAJ by an SSB under the 1999 criteria (which results were
originally approved by the President on 3 January 2000) as an omission.  He
was granted Federal Recognition as a MAJ effective 19 July 2002.  Effective
10 April 2003, he was separated from the NYARNG as a MAJ and transferred to
the U. S. Army Reserve Control Group.  Effective 1 April 2004, he was
reassigned to a troop program unit.

2.  In ABCMR Docket Number AR20050006072, dated 30 March 2006, the ABCMR
recommended that the applicant’s promotion effective date and DOR to MAJ be
adjusted to 3 January 2000.

3.  The applicant provided a DA Form 1059 to show he completed CGSOC
1-205-ILE-CC (Common Core) on 22 August 2007 (duration of course 19 June
2006 through 22 August 2007).

4.  In the processing of this case, an advisory opinion was obtained from
the Office of Promotions, Reserve Components, USAHRC – STL.  That office
noted that, with the applicant’s adjusted DOR of 3 March (sic, i.e.,
January) 2000, the applicant was in the zone for promotion consideration to
LTC by the 2005 and 2006 RCSBs.  A review of his file revealed he is not
educationally qualified for promotion; however, if the ABCMR grants him an
education waiver under either or both criteria he would be eligible for SSB
consideration.  There were no specific requirements in effect to grant a
waiver for the 2005 criteria.  As of        31 August 2006, Reserve
Component Promotion Board Military Education Waiver Guidelines were
established.  In order to be eligible for a waiver for consideration to LTC
a MAJ must have completed at a minimum phases one and two of the non-
resident ILE-CC course.  The applicant falls under this
requirement for the 2006 criteria.  If the applicant is granted a waiver
for either or
both boards, his case should be returned to that office for special board
consideration.  That office recommended disapproval of the applicant’s
request, but apparently only because that office could not grant an SSB
without the waiver.

5.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He noted that paragraph 2e of the 31 August 2006
guidelines still allows for a waiver to be granted to officers who have not
completed phase one and two but whose cases have merit.  He personally
knows three officers who must have been granted educational waivers based
on paragraph 2e because all three had not started phase two at the time
their waiver had to have been granted.  One of the three officers had not
even completed phase one at the time his waiver had to have been approved.


6.  By memorandum dated 31 August 2006, the Office of the Deputy Chief of
Staff, G-1 stated that Army Regulation 135-155 (Promotion of Commissioned
Officers and Warrant Officers other than General Officers), paragraph 2-15b
allows for the Chief, Office of Promotions, Reserve Components to grant
waivers for nonstatutory military education promotion requirements.  In the
past, officers granted waivers could be selected but were not promoted
until they completed the prescribed military education.  A recent legal
review has deemed the delay of promotion under these conditions as legally
objectionable.  As a result, new guidance was issued with respect to
military education waivers.

7.  The G-1 memorandum went on to state that the Chief, Office of
Promotions, Reserve Components retains authority to grant military
education waivers to requesting officers, but waivers must be granted under
more restrictive conditions.  Paragraph 2c of the memorandum set guidance
granting military education waivers for LTC boards, which was that the
military education requirement was 50 percent completion of legacy CGSOC or
100 percent completion of ILE-CC, or equivalent.  In order to be eligible
for a waiver, the officer must have completed at a minimum phases one and
two of the non-resident ILE-CC.

8.  The G-1 memorandum also stated that, in situations where the officer
applying for a military education waiver does not meet the minimum
conditions set out in paragraphs 2a through 2d, and the Chief, Office of
Promotions, Reserve Components deems the case to have merit, the military
education waiver approval authority was Commander, Human Resources Command.

9.  The G-1 memorandum pointed out that imposing tighter military education
waiver standards in a time of mobilizations and deployments could cause
hardship for some officers.  However, G-1 felt comfortable applying the
higher standards because of the Army’s continued use of Selective
Continuation boards to retain twice non-selected captains and majors.

DISCUSSION AND CONCLUSIONS:

1.  The Office of Promotions, Reserve Components, USAHRC – STL noted that,
with the applicant’s adjusted DOR to MAJ, he was in the zone for promotion
consideration to LTC by the 2005 and 2006 RCSBs but for the fact he was not
educationally qualified for promotion.  That office also noted that there
were no specific requirements in effect to grant a military education
waiver for the 2005 criteria.

2.  The applicant has provided evidence to show he completed ILE-CC as of
   22 August 2007.

3.  Paragraph 2c of the Office of the Deputy Chief of Staff, G-1
memorandum, dated 31 August 2006, set guidance for granting military
education waivers for LTC boards, which was that the military education
requirement was 50 percent completion of legacy CGSOC or 100 percent
completion of ILE-CC, or equivalent.  In order to be eligible for a waiver,
the officer must have completed at a minimum phases one and two of the non-
resident ILE-CC.

4.  The G-1 memorandum also stated that, in situations where the officer
applying for a military education waiver does not meet the minimum
conditions set out in paragraphs 2a through 2d, and the Chief, Office of
Promotions, Reserve Components deems the case to have merit, the military
education waiver approval authority was Commander, Human Resources Command.

5.  It is recognized that the applicant had two and a half fewer years than
his peers to complete the military educational requirement due to his MAJ
DOR error.  It is also recognized that preparations for deployments, even
averted deployments, could cut into the time available for completing
military courses (although this reason appears to have been accounted for
in the G-1 guidance).

6.  The applicant’s case appears to have the merit discussed in the G-1
memorandum.  It would therefore be equitable to correct his records to show
he was granted a military education waiver prior to the convening of the
2005 and 2006 LTC RCSBs.

BOARD VOTE:

__lcb___  __mjt___  __eif___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 he was granted a military education waiver for consideration to
lieutenant colonel under the criteria of both the 2005 and the 2006
Department of the Army Reserve Components Selection Boards and that his
records be submitted to a duly constituted special selection board for
promotion consideration to lieutenant colonel under the 2005 and, if
necessary, the 2006 criteria.




                                  __Larry C. Bergquist__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006144                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070911                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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