PROCEEDINGS

	IN THE CASE OF:           

	BOARD DATE:               10 October 2002                  
	DOCKET NUMBER:       AR2002068751

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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, in effect, reinstatement of his education waiver for promotion purposes and promotion reconsideration to lieutenant colonel.

3.  The applicant states that he previously received an educational waiver for promotion.  The Chief, Office of Promotions granted this waiver on 30 August 2001.  He also states, however, that on 4 January 2002, he was informed that the waiver had been rescinded due to a decision made at the Office of the Deputy Chief of Staff for Personnel (ODCSPER).  This occurred several months after the initial approval and he is requesting that the education waiver be reinstated.  He submits copies of the E-mail approving his waiver, his memorandum requesting an educational waiver, his memorandum stating his military education plans and an officer evaluation report ending 31 May 2000 in support of his application.

4.  The applicant’s military records show that he was appointed in the Reserve from the Reserve Officers Training Corps as a second lieutenant effective 6 June 1981.

5.  He was ordered to active duty for 3 years with a reporting date of 24 October 1983.

6.  He was promoted to first lieutenant effective 5 June 1984 and to captain effective 1 December 1986.

7.  He was released from active duty effective 31 May 1994 and transferred to the USAR Control Group, Individual Ready Reserve (IRR).

8.  He was promoted to major effective 1 June 1994.  Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to lieutenant colonel was 31 May 2001.

9.  He was considered and not selected for promotion to lieutenant colonel by the 2000 and 2001 Reserve Components Selection Boards (RCSB's).  He was not qualified for promotion based on the lack of the required military education.

10.  On 10 August 2001, he requested a waiver of the military education.  He stated that he was currently enrolled in the Associate Logistics Executive Development Course, which satisfies the requirement the Command General Staff Officer Course (CGSOC).  His delay in training was based in large part on his misunderstanding of the IRR status and he was under the impression that as a member in an inactive status he was not eligible for further promotions.  Upon joining an active Reserve unit, he realized that his understanding was completely in error.

11.  On 30 August 2001, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) approved his request and granted a waiver for the military educational requirement for promotion to lieutenant colonel for the 2000 criteria.

12.  Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material, 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.

13.  The regulation also specifies that 50% completion of the CGSC is required for promotion to lieutenant colonel.

14.  The Chief, Special Actions, Office of Promotions, PERSCOM, expressed the opinion that the applicant's first mandatory consideration for promotion to lieutenant colonel was in September 2000, he was non-selected for not meeting the military education requirement of 50% completion of the CGSC.  Completion of the Associate Logistics Executive Development Course will also satisfy the military education requirement.  On 10 August 2001, the applicant sent in a letter requesting a military education waiver.  When his office reviewed the correspondence, his office took the request to be for the 2000 year criteria and not for the 2001 year criteria.  It is regrettable that the applicant was not contacted to verify for which criteria year he was requesting a waiver.  The applicant was granted a waiver in August 2001, for the 2000 criteria, and he was scheduled for the next available SSB.  The applicant was again considered by the 2001 promotion board and non-selected for not meeting the military educational requirements.

15.  He further stated that just prior to the SSB, the Chief, Department of the Army (DA) Secretariat, Office of Promotion, Reserve Components, expressed an opinion that military education waivers, as referred to in Army Regulation 135-155, could only be granted for a current criteria and not for any past criteria.  Further guidance was requested from the ODCSPER for a more definitive determination. The ODCSPER determination agreed with that of the DA Secretariat, and stated that the Office of Promotions, should cease and desist and it was, therefore, determined that education waiver for past criteria would not be granted.  The applicant’s name, as well as many others, was then removed.

16.  He further opined that the applicant stated that he was under the misunderstanding that by being assigned to the IRR, he was not eligible for further promotions.  Therefore from 1994 until 1999, when he joined a troop program unit, the applicant did no military training.  Even though the applicant has not completed his military education in a timely manner, it is an injustice to the applicant to have been granted a waiver, assigned to an SSB and then removed from the board.  At the time the Chief, Office of Promotions, made the decision to grant the waiver it was known to be a valid and proper decision.  Cases such as these have been have been previously processed.  The aforementioned determination should have been put into effect after cases already approved by the board.  The regulation only addresses that exceptions may be granted, it does not specify current or past criteria.  Based on the information presented, it is recommended that the applicant's request be approved and his records be considered by an SSB with the military educational waiver.  If the applicant’s request is approved, and he is selected by an SSB, the applicant should also be advised that he cannot be promoted until he completes the military educational requirements.

17.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 3 September 2002.  He concurred on 12 September 2002.

CONCLUSIONS:

1.  The Board concludes in this case that the applicant is entitled to promotion reconsideration to lieutenant colonel under 2000 criteria by an SSB based on the education waiver previously granted to him on 30 August 2001.

2.  The Board notes that the Chief, Office of Promotions, is the approving authority for granting all requests for exceptions to non-statutory promotion requirements and referral for SSB action when that office has determined that a material error caused the non-selection of an officer by a promotion board under past and current criteria.  As in previous cases such as this, other officers have been granted waivers with appropriate consideration by SSB's.

3.  The Board also notes that the applicant was granted a waiver and scheduled for an SSB and subsequently removed from review; however, the determination to cease and desist this practice does not appear to appropriately evaluate the cases already having been approved.  It is also noted that the determination appears to be based on whether or not an exception is granted for current or past criteria; however, pertinent regulations do not specify current or past criteria.

4.  The Board also notes that if the applicant is selected by an SSB, he cannot be promoted until he completes the military educational requirements.

5.  The Board also concludes that as a matter of equity, the applicant's approved request for a waiver and approval for reconsideration by an SSB should be accepted.  The determination to cease granting waivers for past year criteria was made after the approval of his reconsideration.  The decision to disapprove and withdraw the applicant's reconsideration was administrative, through no fault of the applicant, and he should not be penalized.

6.  In view of the foregoing findings and conclusions, 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 an approved waiver for the past criteria of the 2000 educational requirements for promotion to lieutenant colonel.

2.  That, following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration under 2000 criteria.

3.  That, if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefor, 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 selected for promotion and the applicant was separated, 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:  

_RJW___  __RWA__  _JTM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068751	
SUFFIX		
RECON		
DATE BOARDED	20021002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.