IN THE CASE OF:	  

	BOARD DATE:	  5 August 2008

	DOCKET NUMBER:  AR20080004797 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his "...date of rank [DOR] be back dated due to the fact that I was unable to be considered for the 2003 or 2004 boards to LTC [lieutenant colonel]...."

2.  The applicant states the ABCMR (Army Board for Correction of Military Records) found in his favor in two previous cases which allowed him to be promoted from captain (CPT) to major (MAJ) by a Special Selection Board (SSB) on 5 November 2005.  As a result, his DOR to MAJ was backdated to 23 March 1998.  He was, therefore, selected for promotion to LTC by the 2006 mandatory selection board.  He states that according to Army Regulation 135-155, normal time in grade as a MAJ for consideration for promotion to LTC is 5 years, thus he should have been eligible for consideration in either 2003 or 2004.  He adds that he completed CAX (Combined Arms Exercise) in January 2006 and ILE-CC (Intermediate Level Education – Common Core) in February 2008.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Form 1059 (Service School Academic Evaluation Report), dated 19 January 2006 (CAX) and 27 February 2008 (ILE). 

	b.  ABCMR Docket Number AR20040006444, dated 16 September 2004 and Docket Number AR2003091729, dated 24 February 2004.

	c.  Memorandum, dated 2 November 2005, U.S. Army Human Resources Command (HRC), St. Louis, MO, Notification of Eligibility for Promotion to MAJ.

	d.  National Guard Bureau, Federal Recognition Special Orders Number 315 AR, dated 2 November 2005, Promotion to MAJ.

	e.  Applicant’s Memorandum, dated 1 August 2006, Request for Exception to Non-statutory Military Education Requirements.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he was appointed as a US Army Reserve (USAR) second lieutenant (2LT), Armor and executed an oath of office on 10 December 1982.  He completed the Armor Officer Basic Course and was promoted to first lieutenant (1LT) on 9 December 1985.  He was separated from the USAR for the purpose of entering the Texas Army National Guard (TXARNG) on 24 April 1986. 

2.  On 25 April 1986, the applicant was appointed as a 1LT in the TXARNG.  He executed an oath of office on the same day and was subsequently granted Federal recognition for this appointment, effective 25 April 1986.  He was promoted to CPT on 26 March 1991.

3.  On 6 June 1997, by letter, the U.S. Total Army Personnel Command (now known as HRC), St. Louis, MO, notified the applicant that he was considered for promotion to MAJ by the 11 March 1997 Reserve Component Selection Board (RCSB), but not selected.  

4.  On 2 July 1998, the applicant completed the Armor Officer Advance Course. 

5.  On 14 July 1998 the applicant submitted a request to the ABCMR to remove his non-selection memorandum to MAJ in 1997.  However, the ABCMR denied his petition on 28 July 1999. 

6.  On 24 September 1998, HRC-St. Louis, MO, notified the applicant that he was considered for promotion to MAJ by the 1998 RCSB, but not selected.

7.  On 31 March 2003, the applicant requested reconsideration of his previous request to the ABCMR, dated 14 July 1998, for removal of his non-selection memorandum to MAJ in 1997.  

8.  On 24 February 2004, the ABCMR rendered a favorable decision on the applicant’s request to remove his non-selection memorandum to MAJ from his records.

9.  On 2 March 2004, the applicant applied for Federal recognition for reappointment from CPT to chief warrant officer two (CW2) in the Aviation Corps of the TXARNG.  He was subsequently appointed as a CW2 in the TXARNG and executed an oath of office on the same date.

10.  On 28 July 2004, the applicant requested his previous application to the ABCMR, dated 31 March 2003, be further amended to show he requested a military education waiver for consideration for promotion to MAJ under the SSB. 

11.  On 16 September 2004, the ABCMR rendered a supplemental favorable decision further granting him a waiver of the military education requirement to MAJ.

12.  On 25 July 2005, by letter, HRC-St. Louis, MO, notified the applicant that he was selected for promotion to MAJ by an SSB that convened on 9 November 2004.  The letter also notified him that the Presidential approval date of criteria year 2004 selected under 27 August 1997 was the earliest date he could have.

13.  On 2 November 2005, the National Guard Bureau, published Special Orders Number 315 AR extending the applicant Federal recognition for promotion to MAJ. 

14.  On 29 January 2006, the applicant satisfactorily completed all course requirements of the Combined Arms Exercise (CAX).

15.  On 17 February 2006, the applicant enrolled in the U.S. Army Command and General Staff Officer Course (CGSOC) ILE.

16.  On 4 January 2007, by letter, HRC-St. Louis, MO, notified the applicant that he was eligible for promotion to LTC by a mandatory selection board that convened on in September 2006.  His promotion eligibility date was established as 24 March 2005.  The letter further informed him that his promotion will be either of the following dates:

	a.  on 24 March 2005. 

	b.  Date Federal recognition is extended in the higher grade.

	c.  Date following the date Federal recognition is terminated in current Reserve grade.

17.  On 29 March 2007, the applicant was called to active duty in support of the Texas Personnel Recovery Team.  He was honorably separated and reverted back to his ARNG status on 30 September 2007.

18. On 27 February 2008, the applicant successfully completed the U.S. Army CGSOC, ILE. 

19.  On 5 April 2008, the applicant was called to active duty for a period of 395 days for the purpose of Contingency Operations for Active Duty Operational Support (CO-ADOS) of Operation Iraqi Freedom (OIF), with duty in Qatar.

20.  An advisory opinion was obtained in the processing of this case on 8 May 2008.  The Chief, Special Actions Branch, HRC-St. Louis, MO, stated that the applicant was considered and selected by a special board under the 1997 criteria for MAJ.  He was (is) a National Guard officer.  He was promoted by the ARNG and was given 25 March 1998 as his DOR.  This DOR falls in the zone of consideration for the 2003 and 2004 LTC RCSBs.  However, the applicant did not complete the required military education prior to either of these boards.  The minimum required military education is:  50 percent completion of the CGSOC, or completion of the Combined Arms and Services Staff School, Logistics Executive Development Course, or Associate Logistics Executive Development Course.  The applicant completed the required education on 29 January 2006.  The opinion added that Special Actions Branch cannot assign an officer to a special selection board without the required education waiver.

21.  The applicant was furnished with a copy of this advisory opinion.  He submitted a rebuttal by electronic mail (email) on 20 June 2008.  In his rebuttal, he stated that he completely agrees with the advisory opinion; however, it is 
incomplete and requires further explanation.  At the time of the 2003/2004 LTC RCSB, he was a chief warrant officer (CW2) in the Texas Army National Guard.  He had held the rank for the previous 5 years and was the reason for his request to change of military records in February 2003, which resulted in a favorable decision by the ABCMR on 24 February 2004.  He received this decision in March 2004.  He was selected for promotion to MAJ in July 2005 and was promoted in November 2005.  He was unable to enroll in either the CAX or the ILE until that time.  Once he was promoted to MAJ, he immediately enrolled in and completed the CAX in January 2006.  He then attempted to enroll in the ILE, but that required a waiver due to his extended time in service, which was a direct result of the time it took the ABCMR to render a decision.  He was finally enrolled in the ILE and even submitted a letter to the Promotion Board President explaining the situation, and was ultimately selected for promotion to LTC.  However, he was not allowed to be promoted by his State until he completed ILE in January 2008.  Due to the circumstances surrounding this issue, he is now requesting an education waiver for the 2003 and 2004 DA LTC SSB.  He also requests that this Board provide the LTC Board an explanation of his nonrated service.

22.  Title 10, United States Code, Section 14514 governs special selection boards and corrections of records.  It states, in pertinent part, that an officer whose name is placed on a promotion list as a result of recommendation for promotion by a special selection board convened under this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he or she been recommended for promotion by the board which had considered the officer.  It also states that an officer who is promoted to the next higher grade as a result of the recommendation of a special selection board convened under this section, shall, upon such promotion, have the same date of rank and effective date for pay and allowances of that grade, and the same position on the reserve Active-status list as the officer would have had if he or she had been recommended for promotion to that grade by the selection board which should have considered, or which did consider the officer.

23.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board/advisory board may only be based on erroneous non-consideration or material error, 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.

24.  Paragraph 4-15 of Army Regulation 135-155 states that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. 


25.  Army Regulation 135-155 prescribes policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the USAR, and warrant officers of the USAR.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  Promotion from MAJ to LTC requires completion of a minimum of 4 years and/or a maximum of 7 years in the lower grade.  Furthermore, paragraph 2-8 states commissioned officers must complete the military educational requirements not later than the day before the selection board convene date.  Promotion to LTC requires completion of 50 percent of the Command and General Staff Officers Course (CGSOC) or equivalent.

26.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Chapter 8 states, in pertinent part, that the promotion authority of officers in the National Guard is a function of The Adjutant General (TAG) and that if TAG chooses not to promote an officer, he/she is not obligated to do so.  

27.  Department of the Army Pamphlet 600-3 is intended as a professional development guide for individual officers of the United States Army.  It provides guidance to individuals, commanders and personnel managers for the professional development of all USAR officers not on extended active duty.  In pertinent part, it states that the most important element in officer professional development is the individual and each officer must actively participate in his own professional development.  The most critical factor in an officer’s professional development is his or her individual participation or lack thereof.  Although there are statutory and regulatory requirements for participation, the USAR remains a volunteer organization. 

28.  Current policy of the United States Army Human Resources Command, 
St. Louis, Missouri prescribes, in pertinent part, that officers identified for promotion eligibility and have not met the military education requirement may be eligible to apply for an exception to completion of the military education requirement.  Requests that are approved do not absolve the Soldier of completing the education requirement before "pinning on".  If selected for promotion based on the approval of an exception, the Soldier has 18 months from the release date of the board to complete the required course.  If proof of completion of military education is not received, the officer may be recommended for removal from the board's promotion list in accordance with Army Regulation 135-155, paragraph 3-18a(4).  If selected for promotion, officers must provide a copy of the DA Form 1059 to the promotion authority.  Promotions cannot be finalized until the military education requirement has been met. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was non-selected for promotion to MAJ twice.  He petitioned the ABCMR for removal of his non-select memorandum, granting of a military education waiver, and consideration by the 2004 SSB.  The ABCMR granted his request and he was accordingly considered and selected for promotion to MAJ by the 2004 board, with a DOR of 25 March 1998.

2.  The evidence of record further shows that he was also recently considered and selected for promotion to LTC by the 2006 mandatory promotion board. However, he could not be promoted until he completed the military education requirements.  His record shows that he completed the ILE on 27 February 2008.

3.  The applicant now argues that had the ABCMR timely processed his application he would have been able to enroll in and complete the required military education and, therefore, could have competed for promotion on the 2003 or 2004 RCSB to LTC.  With respect to the length of time the ABCMR took to process his request, the evidence of record shows that the applicant submitted his initial request to the ABCMR in July 1998 and his reconsideration request in March 2003, some 4 years and 8 months after the ABCMR rendered its initial decision. 

4.  With respect to the applicant's request to for an educational waiver and backdating his DOR to 2003 or 2004, there is no evidence in the available record and the applicant did not provide any evidence that shows had he been considered by either board, he would have been selected with an educational waiver.

5.  With respect to promotion consideration/reconsideration by a SSB under the 2003 or 2004 criteria, this may only be based on erroneous non-consideration, or material error which existed in the record at the time of consideration.  There is no evidence that a material error existed at the time.  The applicant did not complete his military education until January 2008.  The Board cannot render a favorable decision based on the several assumptions that the applicant raised.

6.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  It is further noted that the applicant knew or should have known that completion of 50 percent of the CGSOC has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080004797



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004797



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1