IN THE CASE OF:	  

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080006087 


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, in effect, that the effective date and date of rank of his promotion to major (MAJ) be changed to 25 March 2005.

2.  The applicant states, in effect, that his post 9/11 mobilization, his unit's operational tempo, and unavailable Officer Advanced Course (OAC) class dates all contributed to his belated OAC attendance and completion.  He claims this situation was beyond his control and regrettably delayed his promotion date.

3.  The applicant provides a self-authored statement, education waiver, class enrollment documentation, and officer record brief in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was commissioned a second lieutenant in the United States Army Reserve (USAR) on 8 June 1990.  He was promoted to first lieutenant on 7 June 1993, and to captain on 29 March 1999.

2.  On 13 June 2001, the applicant completed Phase 1 of the Ordnance OAC.

3.  The applicant's record shows that he was mobilized and served on active duty in support of Operation Enduring Freedom from 2 December 2001 through 1 December 2002.

4.  On 7 March 2005, the Chief of Promotions, Reserve Components (RC), approved a military education waiver for the applicant that allowed him to be considered for promotion to MAJ by the 2005 Reserve Component Selection Board (RCSB).  When this waiver was approved, the applicant was informed that the waiver was for consideration only and that if he were selected for promotion, he would have 18 months from the approval date of the RCSB to complete the required military education and that his promotion would not be effective until he completed the military education requirement.

5.  The applicant was selected for promotion by the 2005 MAJ RCSB.  The promotion list was approved on 8 June 2005 and released on 28 June 2005.  His promotion was suspended pending his completion of the military education requirement.

6.  On 5 June 2006, the applicant completed the Ordnance Captains Career Course RC which satisfied the military education requirement for promotion and, on 6 June 2006, his promotion to MAJ was authorized in United States Army Human Resources Command, St. Louis (HRC-St. Louis), Missouri, Orders 
B-06-604083, effective on and with a date of rank of 5 June 2006.

7.  In connection with the processing of this case, an advisory opinion was obtained from the HRC-St. Louis Chief of Special Actions Branch, Department of the Army Promotions.  This official recommended denial of the applicant's request.  He stated that the applicant had completed Phase 1 of the OAC in 2001, that attempts to schedule him to attend and complete the course had failed for various reasons over several years, and that he had, in fact, been scheduled and coded as a "no show" at one particular class.  He further indicated the applicant was promoted on 5 June 2006, the date he completed the military education requirement, and that this is the earliest date his office could have promoted the applicant.

8.  The applicant provided his response to the HRC-St. Louis advisory opinion in an electronic mail message, dated 29 January 2009.  He stated that notwithstanding the advisory opinion, the fact remained that he was unable to complete the OAC due to no fault of his own.  He claims that he was ready, willing, and able to attend OAC at any given time in the many years prior to 2005, but numerous requests to the unconcerned individuals at HRC-St. Louis prevented his attendance through their inaction.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) 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 and of commissioned and warrant officers of the USAR.

10.  Paragraph 2-8 of the RC officer promotion regulation provides the military education requirements that must be met by commissioned officers to qualify for selection.  Table 2-2 identifies military education requirements and states, in pertinent part, that the military education requirement for promotion to MAJ is completion of any OAC.  Paragraph 2-15 provides provisions for waivers of the military education requirement for promotion consideration.

11.  Paragraph 4-21 of the same regulation provides guidance on promotion effective dates.  It states, in pertinent part, that an officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his failure to complete the military education requirement for promotion to MAJ in a timely manner was the result of inaction on the part of unconcerned individuals at HRC-St. Louis and was through no fault of his own was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, an officer selected for promotion is promoted once all qualifications are met, and the effective date of promotion will not be earlier than the later date all qualifications are met.  In this case, the evidence of record confirms the applicant was promoted to MAJ effective on and with a date of rank of 5 July 2006, which is the date he completed the military education requirement necessary for promotion.  As a result, it appears his promotion effective date and date of rank were established in accordance with the applicable regulation.

3.  The evidence of record shows that although the applicant was mobilized and deployed in support of Operation Enduring Freedom for the 1-year period between December 2001 and December 2002, he was not subsequently mobilized for an extended period prior to his selection for promotion in June 2005.  Further, there is no evidence of record or independent evidence provided by the applicant that shows his operational requirements during this period were so compelling that they prevented him from attending and completing the OAC.

4.  The evidence of record is void of any documentary evidence that supports the applicant's assertion that he was unjustly denied attendance at the required course due to neglect and that his failure to complete the course was through no fault of his own.  The record shows that attempts to schedule him for the course were made by administrative personnel at HRC-St. Louis, but these all failed for various reasons, some of which appear to have been in the applicant's control to resolve.  Absent any evidence confirming the applicant was unjustly denied the opportunity to attend the required course, there is an insufficient evidentiary basis to support granting the requested relief.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      ________x__________________
                 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)                                         AR20080006087



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ABCMR Record of Proceedings (cont)                                         AR20080006087



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