IN THE CASE OF:	  

		BOARD DATE:	 31 January 2012 

		DOCKET NUMBER:  AR20110013529 


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 correction of his military records to vacate documents showing he was non-selected twice for promotion to the rank of major.  He further requests that a special promotion board be convened to reconsider his promotion packet.

2.  The applicant states, in effect, that he was not able to complete the on-line phase of the Judge Advocate General (JAG) Officer Advanced Course through no fault of his own which resulted in him being non-selected for promotion to major by the fiscal year 2009 promotion board.  He was assigned in Milan, Italy in late 2007.  In 2008 he enrolled in Phase I of the JAG Officer Advanced Course.  Unfortunately, once registered, he was unable to access the on-line course due to his Italian internet protocol (IP) address.  He contacted the JAG school on several occasions for assistance but he was informed he could not access the course from a non-U.S. IP address.  He contends that his previous promotion attempts are prejudicial in nature; therefore, his promotion packet should be considered as it now stands.  The inherent difficulties and stigma attached to being twice non-selected for promotion has caused him an injustice that he cannot recover from without official intervention.  He wants to continue in the service of his country and has done everything within his power to demonstrate his dedication.




3.  The applicant provides copies of a letter from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, Fort Knox, Kentucky, dated 5 November 2010; and email communications between personnel at the JAG School and himself dated in 2008 and 2009. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a Reserve JAG Corps officer in the rank of captain, pay grade O-3, with the 4th Legal Support Organization.

2.  In an email, dated 29 September 2008, the applicant informed the Information Technology Officer (ITO), Training Developments Directorate, JAG Legal Center, and School (TJAGLCS) that he had enrolled in the Reserve Component Officer Advanced Course but he had been unable to begin the course because his Italian IP was blocked by the system.  On 6 November 2008, the ITO, TJAGLCS requested the applicant retrieve specific information from his computer concerning his IP address and server and send it to the ITO.

3.  In an email, dated 20 December 2008, the applicant informed the ITO of an additional Italian IP address that he found on his computer.  On 11 January 2009, the applicant inquired about the progress on this issue.  On 20 January 2009, the ITO responded that the network he was on also included the middle-east and central Asia.  While it was technically possible to do IP exceptions, the process takes a long time to set up and maintain.  Course content cannot be released on disc due to misuse.  He was advised to work with his employer to obtain permission to work after hours on his office computer.

4.  On 1 February 2010, the applicant successfully completed Phase I of the JAG Officer Advanced Course.

5.  The applicant has provided a letter from the Chief, Special Actions Branch (SAB), Department of the Army Promotions, HRC-Ft. Knox, dated 5 November 2010.

	a.  The letter stated that his request to vacate the 2009 promotion board results from his records was denied.

	b.  The applicant argued that he was not educationally qualified because his overseas IP address was blocked and prevented him from completing Phase I of the JAG Officer Advanced Course.

	c.  The Chief, SAB advised him of Army Regulation 135-155, paragraph 2-10 concerning mandatory selection boards and Title 10, U.S. Code, Subtitle E, Part III, Chapter 1405, stating an officer who is in the established zone of consideration will be considered for promotion by the selection board.  Therefore, his board results could not be vacated.

	d.  The Chief, SAB further stated that had he exercised reasonable due diligence, by reviewing and certifying his board file, he would have identified the issue and taken more timely corrective action by requesting a military education waiver for the 2009 selection board.

6.  The applicant's records contain the following two remarks:

	a.  On 10 February 2010, a remark indicated that the applicant had been granted a military educational waiver for the FY 2010 Major JAG Corps Selection Board.

	b.  On 23 June 2011, a remark indicated that the applicant was not recommended a second time for promotion, but he was recommended for selective continuation of service until 23 September 2018 (completion of 20 years of commissioned service).

7.  A DA Form 1059 (Service School Academic Evaluation Report), dated 
14 January 2011, reports that the applicant had achieved course standards for the JAG Officer Advanced Course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by vacating documents showing he was non-selected twice for promotion to major, pay grade O-4.  He further contends that a special promotion board should reconsider his promotion packet.

2.  The governing regulation and law required the applicant to be considered for promotion by the 2009 and 2010 promotion boards.  Therefore, it would be inappropriate to vacate documents from his records showing he was non-selected twice for promotion.

3.  Had the applicant exercised reasonable due diligence, by reviewing and certifying his board file, he would have identified the issue and taken more timely corrective action by requesting a military education waiver for the 2009 selection board.  Instead, he delayed this action until the 2010 selection board.

4.  While the circumstances that prohibited the applicant from being able to access the on-line training from his Italian IP address were unfortunate, they did not prevent him from taking more timely and appropriate action to obtain a waiver of the military education requirement until such time as he could successfully complete the training.

5.  There is no error or injustice in this case.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20110013529



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ABCMR Record of Proceedings (cont)                                         AR20110013529



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