IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110021209 


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 reconsideration of his earlier petition to the Board requesting the following:

	a.  an educational waiver for promotion to major (MAJ)/O-4;

	b.  consideration for promotion to MAJ/O-4 by a Special Selection Board (SSB) under the Fiscal Years (FY) 2000-2003 MAJ/O-4 Promotion Selection Boards (PSB) criteria;

	c.  payment of all back pay and allowances if selected for promotion to MAJ/O-4 under earlier PSB criteria;

	d.  consideration for promotion to lieutenant colonel (LTC)/O-5 by an SSB under FY06-08 LTC/O-5 PSB criteria;

	e.  payment of all back pay and allowances if selected for promotion to LTC/O-5 by an SSB; and

	f.  recalculation of retired pay.

2.  The applicant states he is requesting reconsideration based on new evidence and argument that rebuts the findings of the original Board.

3.  The applicant provides a self-authored statement and three third-party statements in support of his reconsideration request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100018522 on 17 March 2011.

2.  During its original review of the case, the Board found the applicant failed his Army Physical Fitness Tests (APFT) from 19 July 1999 through 16 July 2001 and failed to meet height and weight standards from 18 July 1999 through June 2003.  It further determined the evidence of record failed to satisfactorily show he met height and weight standards prior to 17 July 2003, the approval date of the FY03 MAJ/O-4 PSB, and that he was promoted upon attaining the standard on 30 June 2004.  As a result, the Board found no basis to support granting an educational waiver.

3.  The applicant now provides a self-authored statement and three third-party statements that indicate he met the height and weight standard sometime between November 2002 and February 2003.  He also provides a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 17 July 2002 through 16 July 2003 which was completed and signed on 14 October 2003 which shows he met height and weight standards.  Given that the lack of evidence showing he met the standard at the time of the FY03 MAJ/O-4 PSB was the only basis the earlier Board denied his request, he states this new evidence should support a change to the original Board decision by granting the requested relief.

4.  The OER provided by the applicant covers the period 17 July 2002 through 16 July 2003 and is signed by rating officials and the applicant on 14 October 2003.  There is no indication either the rating officials or the applicant communicated the fact that the applicant met height and weight standards to the FY03 MAJ/O-4 PSB prior to its convening date.  The last OER in the applicant's official record on the date the PSB convened covered the period 17 July 2001 through 16 July 2002 and showed the applicant did not meet height and weight standards.  This OER was signed by the rating officials and the applicant on 19 October 2002.

5.  The FY03 MAJ/O-4 PSB convened on 3 March 2003 and recessed on 4 March 2003.  The board results were approved on 17 July 2003.

6.  The applicant's record contains an academic evaluation report that shows he completed the Transportation Officer Advanced Course (OAC) on 15 January 2004.

7.  On 12 July 2004, the applicant was promoted to MAJ/O-4 effective and with a date of rank of 30 June 2004.

8.  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 U.S. Army Reserve.  Paragraph 2-8 outlines military educational requirements for promotion.  It states to qualify for selection, commissioned officers must complete the military education requirements not later than the day before the selection board convening date.  The military education requirement for promotion from captain to MAJ/O-4 is completion of an OAC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration and the new evidence submitted has been carefully considered.  However, there remains insufficient evidence to support the claim.

2.  The evidence of record confirms the applicant had a long history of failing to meet APFT and height and weight standards.  The first document indicating he met standards was an OER that ended 16 July 2003, well after the convening date of the FY03 MAJ/O-4 PSB which was 3 March 2003.  Further, the OER showing he met the standard was not signed by rating officials and the applicant until October 2003 which was well after the approval date of the PSB on 17 July 2003.

3.  Given a waiver of the military educational requirement is for promotion consideration only and completion of the required course is still necessary for promotion – which in this case did not occur until January 2004, well after the approval of the FY03 PSB – there is no evidence suggesting an exception should be granted on this matter given that the applicant did not actually meet the standard until well after the approval date of the PSB.

4.  Absent any evidence of error or injustice related to the applicant's promotion consideration, it would not be appropriate to grant the requested relief.  There is an insufficient evidentiary basis to support granting the exception to policy requested or to amend the original Board decision in this case.



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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100018522, dated 17 March 2011.



      ___________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)                                         AR20110021209



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ABCMR Record of Proceedings (cont)                                         AR20110021209



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