IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20080011324 


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 that he be granted a military education waiver and that his records be placed before a Special Selection Board (SSB) for promotion consideration to Lieutenant Colonel (LTC) under the same criteria as the 2007 Reserve Component Selection Board (RCSB).  He also requests that he be selected for further continuation in the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that due to extenuating circumstances, he was unable to attend and complete his Intermediate Level Education (ILE) prior to the convening date of the LTC RCSB and he was twice non-selected for promotion.  He states that he was scheduled to attend Phases I and II and at the last minute, he was informed that his physical was outdated and he could not attend unless he had a current physical.  He goes on to state that both unit and Department officials were responsible for not notifying him in a timely manner or acting in a timely manner to resolve the issues at hand.  He also states that his not attending the ILE was through no fault of his own and that had he been properly scheduled for a physical in advance of the expiration date or notified in a timely manner, he would have attended Phase I and would have been attending Phase II at the time the 2007 RCSB convened and would have had Phase III completed in the next month.

3.  The applicant provides an 11-page letter explaining his application, copies of electronic mail (e-mail) traffic regarding his physical examination, copies of medical records related to his physical and his attendance at the ILE course, copies of correspondence related to his request for an education waiver, and copies of three Officer Evaluation Reports (OERs). 
CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 October 1956 and he enlisted in the Regular Army (RA) on 9 November 1978.  He served until he was honorably released from active duty and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  He continued his service in the USAR.

2.  On 8 April 1986, he was appointed as a USAR second lieutenant.  He has remained in the USAR as a military intelligence officer and he was promoted to the rank of major on 19 July 2000.

3.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 7 November 2001.

4.  On 12 February 2006, he was given an OER covering the period from
15 November 2005 to 27 September 2006 in which his rater made specific comments regarding the applicant's potential for promotion and indicated that the applicant must complete the prerequisites for professional development courses to be eligible for promotion to LTC.

5.  The evidence of record shows that after cancelling his attendance nine times and being rescheduled, the applicant attended the Combined Arms Exercise (CAX) course on 4 May 2007 and he completed it on 20 May 2007.  His DA Form 1059 (Service School Academic Evaluation Report) indicates that he marginally achieved course standards and noted that he failed to meet Army Physical Fitness Test (APFT) standards during the course.

6.  Information contained in his records show that Human Resources Command - St. Louis (HRC-STL) officials indicated on 29 June 2007 that numerous attempts (requests) were made to get the applicant to get his physical examination updated to no avail.  He was scheduled (reservations) for ILE Phase 1, 2, and 3 and Phase I was to begin on 29 July 2007.  He needed to provide an updated physical exam before he could attend. 

7.  On 22 July 2007, the applicant dispatched an email to the executive officer of his unit informing him that due to his work and contracts, he did not feel that he could enroll in the ILE Phase I correspondence course and requested that a seat be obtained for the resident course the following year.

8.  On 24 July 2007, an email was dispatched from the HRC-STL, Chief, Office of Promotions (Reserve Components) advising him of the need to apply for a military education waiver for the upcoming LTC RCSB.
9.  On 8 September 2007, he authored a memorandum to HRC-STL requesting an exception to non-statutory military requirements.  He requested that he be granted an education exception for the September 2006 LTC RCSB.  He indicated that in April 2007 he was incorrectly advised by his unit that he could not be promoted or retained without completing both the CAX and ILE.  However, after contacting HRC-STL officials he discovered that such was not the case and he registered and he was provided seat reservations for the ILE Phase I in August 2007; however, shortly before he was scheduled to go to the course he was told that he needed a current physical, which could not be done with such short notice.  He went on to state that he had since registered for the ILE in July 2008.

10.  On 12 September 2007, the Chief, Office of Promotions, Reserve Component at HRC-STL dispatched a letter to the applicant informing him that his request was received the day after the 2007 LTC RCSB convened.  It further advised him that in order to receive a waiver for the military educational requirements for promotion to LTC, he must have completed, at a minimum, phases I and II of non-resident ILE common-core.  Accordingly, his request was denied. 

11.  In the processing of this case a staff advisory opinion was obtained from the HRC-STL Special Actions Branch, Department of the Army (DA) Promotions which indicates that the applicant did not qualify for an education waiver for the 2007 LTC RCSB because he had not completed the minimum of phases I and II of the non-resident Intermediate Level Education-Common Core (ILE-CC) by the convene date of the Board.

12.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded to the effect that had it not been for the negligent actions of the unit administrator not notifying him in a timely manner that he needed a new physical, he would have attended the course and attempted to meet the minimum requirements for a waiver.  He also states that he hopes that the Army will not choose to let a veteran who has served in several critical occupational skills, has a top secret clearance, and outstanding academic credentials be denied to attend the ILE phases and compete for promotion.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the records 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 education.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly denied an education waiver during consideration for promotion to the rank of LTC has been noted and appears to lack merit. 

2.  The applicant further contends that had the civilian unit administrator notified him in a timely manner that he was required to take/update his physical examination, he could have accomplished it and attended phase I of ILE and attempted to complete Phase II via correspondence course; however, that contention also appears to lack merit.

3.  While it cannot be determined with any degree of certainty the involvement of the unit administrator in this matter to the degree the applicant contends was critical to his case, it appears that it is actually irrelevant in this case because by the applicant's own admission on page 9 of his 11-page explanation, he knew that he could not complete phase II of the ILE by the convening date of the selection board even if he had been notified in a timely manner.

4.  Accordingly, he was not entitled to receive an education waiver and he has failed to provide sufficient evidence to show that he was unjustly denied a waiver.

5.  While the applicant would have the Board believe that he was a victim of the system and that he has been unjustly denied promotion to the rank of LTC, the evidence of record shows otherwise.  It was the applicant's responsibility to attain his educational requirements and the very fact that he was rescheduled numerous times just to complete the CAX before he could enroll in ILE is indicative that the system was trying to support his efforts.  However, it appears that the applicant simply delayed his military education obligations too long.

6.  The general requirements and workings of the system are widely known and specific details such as RCSB dates, promotion zones, and educational requirements are widely published in official, quasi-official, and unofficial publications and in official communications.  
7.  While the applicant may have had valid personal reasons for not engaging in his military education requirements to qualify for future promotions in a timelier manner, such reasons do not constitute an error or injustice on the part of the Department.  Additionally, there are no re-look boards for selective continuation boards.  Accordingly, there appears to be no basis to grant his request.

8.  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 submit evidence that would 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.



      _________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)                                         AR20080011324



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011324



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1