PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 January 2002                 
	DOCKET NUMBER:    AR2002066392

	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. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr. 		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 reconsideration to major in the Judge Advocate General’s Corps (JAGC).

3.  The applicant states that he was erroneously passed over for promotion to major for being educationally unqualified.  He states he was unable to complete Phase II of the Judge Advocate Officer Advanced Course (JAOAC) by the time the 1996 promotion board met during March 1996; however, he completed Phase I on 1 August 1995 and had satisfied all other requirements.  He states he successfully completed Phase II in June 1996, as early as it was possible to do so.  He submits a statement in his own behalf, copies of his Phase II completion certificates, a Service School Academic Evaluation Report and a letter dated 19 September 1995 from an Army National Guard (ARNG) JA Advisor in support of his application.

4.  The applicant was considered but not selected for promotion to major by the 1995 and 1996 Reserve Components Selection Boards (RCSB’s).  The reason shown for the non-selections was that he was not educationally qualified.  He had not completed the required officer advance course. 

5.  On 19 September 1995, an ARNG Judge Advocate Advisor informed the applicant’s command, that JAGC officers appointed with military education stipulations will be considered to be educationally qualified for promotion if satisfactorily progressing toward completion of military education at the date promotion boards convene.  The advisor recommended that the applicant be deemed to be educationally qualified for promotion since he completed all possible course work over seven months prior to the date of his promotion board. The advisor also stated that the applicant’s first opportunity to take Phase II was in June 1996.

6.  On 17 September 2001, the applicant forwarded a letter to the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), citing his appreciation for finally receiving consideration for his request submitted on 28 August 1996.  He provided further documentation in support of his request.  He showed his current rank as Sergeant, JA, Michigan ARNG.

7.  Based upon review by the Office of Promotions, the applicant’s official military personnel file (OMPF) showed material error when he was considered and non-selected by the RCSB’s.  He was erroneously considered as not educationally qualified.

8.  Army Regulation 135-155, concerning promotion of Reserve officers, requires promotion to major be based upon selection by an RCSB.  It specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the record 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 military schooling.

9.  The regulation also states that JAGC officers appointed with a military education completion stipulation will be considered to be educationally qualified for promotion if progressing satisfactorily (portion of required education completed is equal to or greater than that portion of allowed time elapsed following appointment) toward completion of military education at the date the promotion boards convene.

10.  It is noted in this case that the applicant’s request is dated 28 August 1996, and that this Board received it on 3 January 2002 without his official records.  The Office of Promotions provided his Promotion Consideration Folder for review.

CONCLUSIONS:

1.  The applicant’s records contained material error when reviewed for promotion to major and should now be submitted to SSB’s for promotion reconsideration under 1995 and/or 1996 criteria, as appropriate.

2.  The Board notes that the applicant completed Phase I of the JAOC course and based on the military education stipulation at the time of his appointment, he was educationally qualified for promotion to major.  He had enrolled in Phase II by the date of the 1996 promotion board, and was progressing satisfactorily toward completion of the military education.

3.  In view of the foregoing findings and conclusions, and in so far as the Department of the Army is concerned, it would be appropriate to correct the applicant’s records 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 was educationally qualified at the time of the RCSB’s.

2.  That following administrative implementation of the foregoing, his records be submitted to duly constituted SSB’s as appropriate.
3.  That if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

4.  That if the applicant was separated because of his non-selection, his records be further corrected to show:

	a.  that his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect, that he was credited with qualifying service for 
Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve;

	b.  that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

	c.  that all documents related to his now-voided non-selection for promotion, and his discharge or transfer be expunged from his official military records.

5.  That if not selected, the applicant be so notified.

BOARD VOTE:  

_inw____  _hof____  _dph____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002066392	
SUFFIX		
RECON		
DATE BOARDED	20010115	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.