MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 JULY 2002                   
	DOCKET NUMBER:   AR2002070320

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, the applicant requests that he be reinstated in the Army Reserve as a commissioned officer with the restoration of all rights, privileges, and property.  He also requests that the orders discharging him from the Army Reserve be revoked, that his enlistment contract be voided, that the record showing that he was a two time non-select for promotion to major be expunged from his record, and that he be considered for promotion to major by the next available standby advisory board.  Additionally, he requests approval on his request for branch transfer from the Engineer to the Military Police Branch.   

APPLICANT STATES:  That he was a second non selection for promotion to major on 10 August 2000 because of budgetary constraints delaying his completion of mandatory education requirements in order to be eligible for consideration for promotion to major.  He would have been selected for promotion to major had he been able to complete Phase 1 of the Reserve Component Military Police Officer Advanced Course in 1999.  The resulting non- selection led to the loss of his commission because he had less than 18 years of qualifying service for retirement.  He was 67 days short of the 18-year mark, and has attempted to retain his commission as an exception to policy.  He has requested an interpretation of the regulations from the Army Reserve Personnel Command, without success.  He states that he has requested an exemption to allow continuation of his commissioned service while his application was being considered.  The applicant provides a four page continuation of his statement with 17 enclosures, which he states is the justification necessary to correct his record.

He was selected for promotion to captain on 20 May 1992.  His service with units of the 98th and 78th Divisions has always been meritorious.  He provides a biographical summary at enclosure one to his application.

He attempted to complete Phase 1 of the Army Correspondence Course for the Reserve Component Engineer Officer Advance Course (RC EOAC) several times while serving in the 98th Division.  Force reductions, position and unit location changes, coupled with his demanding civilian occupation, caused him to not meet minimal credit course completion requirements within a year, and he was disenrolled in the EOAC Phase 1 course each time.

He accepted a position as a staff officer with the 3d Battalion, 322nd Regiment,   7th Brigade, 78th Division in February 1997, knowing that it would be a demanding position.  He served meritoriously.  He knew that he had not completed his military education requirements when he was first considered for promotion by the March 1999 selection board.  He enrolled in Phase 1 of the Military Police Officer Advanced Course (MPOAC) in October 1998 and informed the promotion board in January 1999 that he was in the process of completing Phase 1.

In July 1999 he had problems receiving correspondence books and was forced to accept the two or three that were mailed at one time.  He attempted to request bulk shipment of the remaining correspondence subcourses in order to complete Phase 1 of the MPOAC prior to October 1999, as he was scheduled to attend Phase 2 on 15 October 1999.  His inquires were to no avail.  Due to the lack of response from the Army Correspondence Course Program (ACCP) at Fort Eustis, he was disenrolled from Phase 1, and missed enrollment in Phase 2 because he did not first complete Phase 1.

He re-enrolled in Phase 1 on 3 February 2000 and continued completing subcourses as they arrived at his home.  Although he missed the 15 October 1999 Phase 2 class, he was informed by his Personnel Management Officer (PMO) that a Phase 2 class scheduled for 15 April 2000 was open, and although the class was after the cutoff date for consideration for promotion by the March 2000 selection board, he was informed that completion of the MPOAC would make him eligible for consideration by a standby board.  Again, he requested bulk shipment of subcourses (Copy of message at Enclosure 2), receiving in response a message from ACCP (Enclosure 3).  Contacting the ACCP the next day, he was informed there was no bulk shipment due to budget restrictions; however, he persevered and his request was granted.  He received all remaining subcourses, completing them by 25 February 2000 (Enclosure 4).

On 18 December 1999 he received notification that he was not selected for promotion by the March 1999 selection board and that same day was notified that he was eligible for consideration by the 2000 major board.  He submitted a promotion packet on 10 February 2000, notifying the board president that he successfully completed Phase 1 of the MPOAC (Enclosure 5).  The 9-month delay between the publishing of the results of the March 1999 selection board and the immediate requirement for the submission of a promotion packet for the March 2000 board was an additional and extreme limitation.

After completing Phase 1 he applied for attendance at the April 2000            Phase 2 class, but was informed that the class was full and that he was placed on a waiting list.  He was sent a course packet from the battalion operations sergeant (Enclosure 6), and was told that he was still awaiting a seat.  He later found out that the class was not full, and informed by his PMO that his application had been withdrawn by the operations sergeant, who refused to give the reason for the withdrawal. 

He again requested enrollment in Phase 2.  Orders were published for attendance at Phase 2 with a reporting date of 14 October 2000 (Enclosure 7).  On 6 October 2000 he was informed of his second non-selection for promotion, requiring him to select an option, i.e., retain in an active status, transfer to the Retired Reserve, or discharge (Enclosure 8).  He delayed selecting an option until after completion of Phase 2.  
He was informed that the Army Reserve Personnel Command was pressuring the 78th Division to remove him from the MPOAC.  He requested assistance from a Member of Congress (Enclosure 9), receiving his reply on 23 October 2000 (Enclosure 10).  With the assistance of the MP School Reserve Component liaison officer, he was able to stay in the school and successfully complete the course (Enclosure 11).

After returning from the MPOAC he submitted the option required by the second non-selection letter.  He also submitted a request for a branch transfer from Engineer Branch to Military Police Branch (Enclosure 12).

On 22 December 2001 he received orders discharging him as an officer in the Army Reserve, effective 2 January 2002 (Enclosure 13).

On 15 March 2001 he enlisted in the Army Reserve as a sergeant        (Enclosure 14). 

On 1 June 2001, at his request, his battalion commander requested that he be retained in active service as a commissioned officer (Enclosure 15).  That request has not yet been acted upon. 

His discharge was not just because his separation occurred 67 days prior to his completing the 18th qualifying year of service for retirement.  He had the necessary retirement points – 71, well over the required 50.  Enclosure 16 depicts his retirement point record.  The response from the Army Reserve Personnel Command provided no assistance regarding his retention     (Enclosure 17).  Ignoring recommendations from his PMO, the MP School, and the 78th Division, the Army Reserve Personnel Command directed his discharge. After reviewing Army Regulation 140-10 he learned of the exception for retention as noted in the memorandum at Enclosure 15.  

Qualified commissioned officers are not available in his military police team.  There are no MP officers in the area that could have filled his position after          2 January 2001.  Without a team officer, command structure of the client unit would suffer, affecting its ability to improve combat effectiveness.  Further he had applied for and was awaiting branch transfer to the MP Branch. 

He is aware that active duty officers actually are offered a third “look” when it comes to promotion boards.  There is a critical shortage of junior officers to fill unit vacancies and an inability to retain officers, especially in the Army Reserve.  There is no justification to separate Reserve officers who have made the effort to stay qualified, especially when educational requirements are secondary to budget limitations. 

Officers not selected for promotion are required to receive notice in writing through their chain of command.  He never received written notice of his first non-selection for promotion by the March 1999 board.  He was made to assume that his non-selection was for lack of the military educational requirements.

He has attempted to resolve the matter, but has been unsuccessful.  He was a distinguished officer in the Army Reserve, serving in a variety of positions in a number of units.  He understands that his delay in obtaining the military education earlier in his career may have compounded the situation; however, the overwhelming mitigating circumstances beyond his control ultimately led to his non-selection for promotion to major, his discharge as a commissioned officer, and his request to the Board.   
 
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army Reserve for 6 years on 11 March 1983 for participation in the ROTC Simultaneous Membership Program (SMP).  He was discharged on 17 May 1985 for the purpose of accepting a commission.   

The applicant was commissioned a Reserve officer from ROTC on 18 May 1985. He completed the Engineer Officer Basic Course on 29 September 1987.  The applicant’s officer evaluation reports (OERs) dating from 1988 reveal that he was assigned to Reserve units of the 98th Division, and beginning in February 1997, with units of the 78th Division.  He was promoted to captain on 20 May 1992.   

His four OERs as a first lieutenant show that his raters stated that he always exceeded requirements and should be promoted ahead of his contemporaries.  One of those reports was a top block, above center of mass report; two, top block center of mass reports; and one, a second from the top block center of mass report.  His ten reports as a captain prior to the initiation of the new OER system show that his raters stated that he always exceeded requirements on six of those reports, usually exceeded requirements on the remaining four; that he should be promoted ahead of his contemporaries on five of those reports, and with contemporaries on four.  His three latest reports, since the initiation of the new OER system, show that his senior raters considered him best qualified, with two of those reports being above center of mass reports, the other a center of mass report.

A review of the applicant’s Army Correspondence Course Program (ACCP) enrollment history, which he submits with his request, shows that he had enrolled in Phase 1 of the RC EOAC on 30 October 1995.  His enrollment status as of    30 October 1996 shows that he failed to satisfy minimum progress requirements. He enrolled in Phase 1 again on 11 February 1997.  His enrollment status as of 11 February 1998 shows, “No response from student within specified time frame.”  He enrolled in Phase 1 of the RC MPOAC on 20 October 1998.  His status on 20 October 1999 shows, “Student failed to satisfy minimum progress requirements.  He again enrolled in Phase 1 of the RC MPOAC  on 3 February 2000.  He completed requirements on 28 February 2000. 

The applicant attempted to obtain MPOAC correspondence book courses in early February 2000, was successful, completing Phase 1 on 28 February 2000 as evidenced in enclosures 2 through 4 of the applicant’s request.  He was scheduled to attend Phase 2 of the course in April 2000 as shown by the memorandum at enclosure 6.  He was ordered to training with a reporting date of 14 October 2000 (enclosure 7).

In a 21 August 2000 memorandum, the applicant was notified that he was not recommended for promotion by the 2000 Army Reserve Components Mandatory Selection Board, and since he had been twice not selected for promotion he had to be separated not later than the first day of the seventh month after the month in which the President approved the board results.  He was required to submit an election of options to the Army Reserve Personnel Command not later than      21 October 2000 (enclosure 8).  The applicant elected to be retained in an active status to qualify for retired pay at age 60.  He stated in his election that he had completed at least 18 or 19 years but less than 20 qualifying years of service for retired pay.  The applicant’s election is undated.

In response to his request, a Member of Congress (MC) informed the applicant on 23 October 2000 that he (the MC) was informed that the grounds established in his letter seeking delay of his separation were insufficient, and that only with evidence of material error could consideration be given to granting him a relook board.  The MC stated that the Reserve Command Headquarters indicated that he had seven years to complete the [promotion] requirements.  The MC informed him that his only option was to apply to this Board for relief (enclosure 10).

Enclosure 11 shows that the applicant completed the MPOAC on 27 October 2000.  On that same day he requested a branch transfer to the Military Police Branch (enclosure 12).   

He was discharged from the Army Reserve on 2 January 2001 (enclosure 13).  On 15 March 2001 he enlisted in the Army Reserve for three years in pay          grade E-5 (enclosure 14).  

Enclosure 15 is a 1 June 2001 memorandum from the applicant’s battalion commander to the Army Reserve Personnel Command requesting that the applicant be retained in an active status in the rank of captain for the minimum of 90 days as authorized in Army Regulation 140-10, and that he receive a branch transfer to the Military Police Branch. 

Enclosure 16 shows that the applicant had 17 years of qualifying service for retired pay at age 60 through his retirement year ending (RYE) date of 10 March 2000.  His retirement year beginning on 11 March 2000 ended on 2 January 2001, his discharge date, and is not a qualifying year of service for retirement purposes.

Enclosure 17 is a message from the Army Reserve Personnel Command   informing the 78th Division that although the applicant had earned 50 retirement points toward his RYE of 10 March 2001 it is a partial year, not a qualifying year of service.   

In a 23 April 2002 advisory opinion, the Director, Officer Personnel Management Division at the Army Reserve Personnel Command, stated that due to circumstances beyond the applicant’s control – (1) ACCP did not provide, as a past practice, and authorized an exception for cogent reasons, timely bulk shipment of course materials and (2) the April 2000 RC MPOAC Phase 2 school seat was inexplicably and arbitrarily withdrawn precluding successful completion of required military education.  That officer recommended that the applicant’s request be approved.

On 8 May 2002 the Review Boards Agency at St. Louis informed the applicant that the portion of his request pertaining to promotion reconsideration would be addressed by the Total Army Personnel Command for their appropriate action, and that should that not be resolved to his satisfaction, he could resubmit an application to this Board.  He was informed that the other issues he had addressed would be reviewed by this Board.

On 14 June 2002 the Office of Promotions at the Total Army Personnel Command informed the applicant that although the reasons for his non-selection for promotion by the 1999 and 2000 selection boards are usually unknown because statutory requirements prevent disclosure of board proceedings, in his case he could not be selected based on the fact that he had not completed the required military education requirements (Officer Advanced Course).  He was further informed that in accordance with Army Regulation 135-155 an officer must meet the military educational requirements prior to the convening date of the promotion boards; and, based on information furnished by him, he did not complete the Officer Advanced Course until 27 October 2000, after the convening dates of the 1999 and 2000 boards.  He had no basis for a special selection board.  He was informed that he could petition this Board for relief.

On 22 June 2002 the applicant responded to the 23 April 2002 advisory opinion, stating that he concurred with the opinion.  He also requested that his branch transfer from the Engineer Branch to the Military Police Branch be approved.

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers in the Army Reserve and states in pertinent part, that to qualify for selection, commissioned officers must complete the educational requirements not later than the date the selection board convenes.  The educational requirements for selection to major is completion of any officer advanced course.

Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, remove, or transfer Army Reserve soldiers, and states in pertinent part that officers who are not selected for promotion to major after second consideration will be removed from an active status, and will be discharged or transferred to the Retired Reserve.  Officers having 18 or 19 years of qualifying service for retired pay will not be removed without their consent.  Officers who meet this criteria on the date removal is required will be retained to complete     20 years.  Retention is authorized on the date on which 20 years of qualifying Federal service for retired pay, or three years from the required removal date for officers having at least 18 but less than 19 years of qualifying service, whichever is earlier.   

Paragraph 7-12c of the above cited regulation states that the Army Reserve Personnel Command may, in coordination with the Total Army Personnel Command, authorize temporary retention in an active status of an officer who is removed from an active status solely because mandatory selection boards twice fail to select him for promotion to major.  This can be done anytime up to 90 days after the second selection board submits its report to the convening authority.  Temporary retention can be authorized only if a final decision has been made that the officer’s records will be referred to a standby board for either of both of the two non selections.

Paragraph 7-12d states in effect that officers retained (under the authority contained in paragraph 7-12c) will be removed from an active status within 180 days after their retention is authorized unless their records have been submitted for consideration by a standby advisory board, or the principal Deputy Assistant Secretary of the Army (M&RA) or a higher authority allows further retention.

Army Regulation 135-180 states in pertinent part that a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.
 
Paragraph 2-10 provides instructions for computation of service and states, in effect, that a proportionate part of 50 points for any fraction of a year will be credited - one point will be given for each day of active duty, 15 points will be awarded for each year of membership in an active status in a Reserve component, and one point for each authorized participation in drills or period of instruction.  Not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year.

Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for Reserve soldiers.  Paragraph 1-4 of that regulation provides the criteria for establishing or changing the retirement year (RY), and states, in effect, that soldiers in an active Reserve status on 1 July 1949 will have a retirement year from 1 July through 30 June annually.  After 1 July 1949, the retirement year will be the date of initial entry or reentry (after a break in service) into a Reserve component, or date of transfer to the Reserve component upon release from active duty, or date of transfer from an inactive Reserve status to an active Reserve status.  The retirement year once established will not change as long as the soldier has continuous service in a Reserve and/or regular component.

Paragraph 2-1 provides criteria for awarding retirement points during a partial year and states that if a soldier is separated or removed from an active status during a retirement year, the soldier may be credited with a proportionate maximum number of inactive duty training points for that year. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant was not a two time non-select for promotion to major because of budgetary constraints that delayed his completion of the mandatory educational requirements for consideration for promotion to major.  He was twice not selected for promotion to major because of his own failure to complete those educational requirements.  He first enrolled in an advanced course on               30 October 1995, more than three years after his promotion to captain.  He enrolled again in an advanced course in 1997, 1998, and in 2000, finally completing Phase 1 in February of 2000.  He was disenrolled on three occasions for either not satisfying minimum progress requirements or because the program did not receive a response from him.  Notwithstanding the applicant’s contentions and the opinion furnished by the Army Reserve Personnel Command, it would appear to this Board that the applicant had the same opportunity as his contemporaries to complete an advanced course in sufficient time prior to consideration for promotion to major.  The applicant has not provided any good  or sufficient reason why this is not so.       

2.  The applicant did not have 18 qualifying years of service for retirement at age 60 as he himself states, and there was no requirement to retain him in an active status for 90 days, as he and his battalion commander contend.  Temporary retention is authorized only up to 90 days after a second selection board submits its report to the convening authority, and only if a final decision has been made that an officer’s records would be referred to a standby board.  These criteria were not so in the applicant’s case.  Neither is there reason for the principal Secretary of the Army (M&RA) or a higher authority to become involved in the applicant’s case.  

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request to be reinstated in the Army Reserve as a commissioned officer.  Since his request in his respect is not favorably considered, there is no reason to grant the remaining requests contained in his application.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

__        __  __          _  __        __  GRANT

________  ________  ________  GRANT FORMAL HEARING

_FNE ___  __MHM__  __DPH__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002070320	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020716	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100	
2.	100.05	
3.	102	
4.		
5.		
6.