PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           28 January 1999                  
	DOCKET NUMBER:   AC98-07449
				   AR1999016372

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Luther Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests promotion to lieutenant colonel.

3.  The applicant states that he had completed all military education requirements well before his colleagues and his promotion should have been approved.  He further states that he was not notified of his discharge until after Desert Storm.  He encloses a congressional inquiry he initiated and copies of all his military education completion documents in support of his application.

4.  The applicant’s military records show that he was appointed in the Reserve, Military Intelligence, as a second lieutenant effective 15 June 1969.  He was promoted to first lieutenant effective 3 June 1972 and captain effective 2 June 1976.

5.  He completed 50 percent of the Command and General Staff College (CGSC) on 4 August 1982.

6.  He was promoted to major effective 1 January 1983.  His promotion eligibility date for lieutenant colonel was 31 December 1990, based on completion of 7 years time in grade and 17 years of commissioned service.

7.  He was considered but not selected for promotion to lieutenant colonel by the 1989 and 1990 Reserve Components Selection Boards (RCSB’s).  He was not qualified for promotion based on the lack of the required military education.

8.  On 25 October 1990, he was notified of his options upon nonselection for promotion after second consideration.  He was advised he would be discharged within 90 days after the selection board reports its findings, unless he had a service obligation, or was eligible for and requested transfer to the Retired Reserve, or credited with 18 or more but less than 20 years of satisfactory service for retired pay purposes.  He was also advised, if he failed to respond, he would be discharged in accordance with the law.  

9.  His record was annotated on 28 November 1990, that the applicant did not reply to the notice.  He was discharged on 21 December 1990.

10.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a promotion advisory board may only be based on erroneous nonconsideration 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 nonselection 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 nonselection, except where an individual is not qualified due to noncompletion of required military schooling.

11.  The regulation provides that individuals twice not selected for promotion to lieutenant colonel will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

12.  The regulation also specifies that 7 years of time in the lower grade is required for promotion to lieutenant colonel and 5 years for colonel, and that individuals will receive mandatory promotion consideration prior to their PED's so that, if selected, they may be promoted on their future PED.

13.  The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that when the applicant’s file was reviewed by the 1989 and 1990 RCSB’s there was no verification that he had completed the required military education of 50 percent completion of the CGSC.  If the applicant can provide documentation to verify completion of the course he will have a basis for special board consideration.  There is no correspondence in the applicant’s file to or from his congressional representatives.  In view of the facts presented, he recommended that the applicant’s request be disapproved.  (It is noted that a staff member of the Board confirmed with officials of the PERSCOM that the applicant’s records did not contain information concerning completion of 50 percent of the CGSC when reviewed by the promotion boards.)

14.  On 13 October 1998 the applicant rebutted the advisory opinion and provided a copy of his completion document for 50 percent completion of the CGSC.

CONCLUSIONS:

1.  The applicant is entitled to promotion consideration to lieutenant colonel by special selection boards (SSB’s) under 1989 and 1990 criteria.

2.  Documentation submitted by the applicant showing completion of 50 percent of the CGSC provides a basis for special board consideration.

3.  The Board also notes his request for promotion to lieutenant colonel; however, promotion to lieutenant colonel in this case must be based on consideration of his records and selection by a promotion board convened for those purposes.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned completed 50 percent of the CGSC on 4 August 1982.

2.  That following administrative implementation of the foregoing, his records be submitted to duly constituted SSB’s for reconsideration for promotion to lieutenant colonel .

3.  That if he is selected for promotion his records be further corrected:

a.  by promoting him to lieutenant colonel and assign the appropriate date of rank; 
b.  by showing he was reinstated to his previous active Reserve status, with constructive service, pay, and award of appropriate retirement points; 

c.  by placing an appropriate non-prejudicial statement in his record explaining the absence of OER’s subsequent to his separation; and

d.  that following administrative implementation of the foregoing, by submitting his records to duly constituted SSB’s for consideration for promotion to colonel.

4.  That he be notified in advance of the SSB consideration(s) and provided the opportunity to review his records and to voluntarily correspond to the president of the appropriate selection board(s) to present matters on his own behalf.

5.  That if he is not selected for promotion, he be notified accordingly.

6.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

LS______  RWG___  CLG ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID 	AR98-07449	
SUFFIX		
RECON		
DATE BOARDED	1999 January 28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	NA. . . . .  	
DISCHARGE REASON	NA	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 	131	
2.		
3.		
4.		
5.		
6.		

CHAIRPERSON