PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  31 October 2002
	DOCKET NUMBER:  AR2002073060

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Donald P. Hupman		Member	
	Ms. Regan K. Smith		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 a waiver of his military education requirement for promotion to major and appearance before a Special Selection Board (SSB).

3.  The applicant states he was unable to complete Phase II of the Adjutant General Officer Advanced Course (AGOAC) in time for a second look at major due to his medical profile he received while attending the course in January 2002.  He was mobilized for Operation Enduring Freedom in October 2001, and subsequently deployed to Kuwait in November 2001.  The Reserve Component Selection Board (RCSB) convened on 4 March 2002.  In support of his application, he submits a copy of his mobilization orders.

4.  He provides a copy of a Memorandum for Record, dated 9 April 2001, Subject:  Advance Course Educational Waiver and Major Selection Board 
Re-look.  He states that during the period 20 January to 1 February 2002, he successfully completed the AGOAC-Reserve Component (RC), Class 1-02.  He finished with a 91% academic grade point average.  However, he was disenrolled from the course based on his failure to complete the Army Physical Fitness Test (APFT).  He was unable to complete the APFT due to an injury he incurred while on active duty just prior to the course.  

5.  On 4 October 2001, he was ordered to active duty as part of the President's Partial Mobilization of RC forces to participate in the War on Terrorism.  As the Public Affairs Officer (PAO) Operations Officer for Third US Army/Army Forces Central Forces Command, he deployed to the Middle East where Third Army became the Coalition Forces Land Component Command (CFLCC).  

6.  On 22 December 2001, he awoke form his bunk at Camp Doha, Kuwait with the left side of his body experiencing total numbness.  Fortunately, the numbness subsided after a few minutes but was replaced with persistent pain.  He promptly reported to the Camp Doha Troop Medical Clinic and later to the CFLCC Command Surgeon who diagnosed his condition as a possible pinched nerve in his back.  He was not immediately referred to a neurologist because none existed in the theater at that time.  While the pain persisted through 20 January 2002, when he reported for the course, he firmly believed he could still "gut it out."

7.  He took the APFT on 25 January 2002 and passed both the push-up and 
sit-up events.  However, the pain became too unbearable for him to complete the two-mile run to standard, missing his minimum time by only 19 seconds, despite the pain.  He did not fail the APFT due to poor conditioning.  He is in good condition, having passed a complete APFT in October 2001.

8.  On 30 January 2002, the class-training officer directed him to the Troop Medical Clinic (TMC) for an evaluation.  The internal medicine doctor at the Fort Jackson hospital placed him on temporary profile, but because there was no neurologist at Fort Jackson, an appointment was made for him at Fort Gordon.  During the 13 February 2002 appointment at Fort Gordon, he was given a temporary profile for musculoskeletal (pertaining to or comprising the skeleton and the muscles) back strain compressing and irritating the major nerve bundle to his left leg.

9.  He was in the zone for promotion to major on the RCSB that convened on 4 March 2002.  Successful completion of OAC is a requirement for consideration, unless an education waiver is granted.  As this is his second look for promotion, the consequences of him not being selected would end his career.

10.  His superiors at Third Army think highly of his potential as an Army officer so they redeployed him from a war zone to allow him to complete the AGOAC and compete for promotion.  He respectfully asks favorable consideration of his request that he receive an education waiver due to the fact than an injury prevented him from completing the APFT to standard, and that his promotion packet appear before an SSB for review and potential conditional selection to major.  If a selection is granted, he will complete his OAC within 12 months to qualify for promotion.

11.  The applicant’s military records show he was commissioned as a second lieutenant in the Louisiana Army National Guard (LAARNG) on 17 August 1987, with prior military service.

12.  He was promoted to captain (CPT/0-3) on 15 August 1994.

13.  Headquarters, 81st Regional Support Command Orders M-276-006, dated 3 October 2001, ordered the applicant to active duty for 365 days in support of a
mobilization.  Additional orders were published on 23 November 2001, with assignment to Kuwait to support Operation Enduring Freedom for approximately 315 days.

14.  He was not selected for promotion to major by the 2001 and 2002 RCSB based on his not having completed the required military education.  His established date of removal from an active status is 1 January 2003.

15.  The Chief, Special Actions Branch, Office of Promotions, RC, US Total Army Personnel Command (PERSCOM) provided an advisory opinion.  The opinion stated that based on a review of the applicant's complete file, it was recommended that the Board grant him a military education waiver for the 2002 criteria for promotion consideration to major.  If the applicant is granted a waiver he will be considered by a DA SSB under the 2002 criteria.  If considered and selected for promotion by an SSB, he will have 18 months to complete his education from the approval date of the SSB that selected him for promotion.  If the applicant is selected for promotion and does not complete the education in the required time his name will be removed from the board as a recommend for promotion.  

16.  The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of this case.  The applicant responded within the timeframe allotted and concurred on 22 July 2002.

17.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel.  The regulation provides that in order to be qualified for promotion to major an individual must have completed Combined Arms Services Staff School (CAS3), 7 years of time in grade (TIG) as a captain, and an officer advanced course (OAC) on or before the convening date of the respective promotion board.  There are no waiver provisions provided in the regulation.

18.  In pertinent part, Army Regulation 135-155 states that an officer who twice fails to be selected for promotion to captain, major, or lieutenant colonel will not again be considered for promotion and will be removed from an active status.

19.  Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  Paragraph 4-4 pertains to the removal from an active status.  It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.

20.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.

CONCLUSIONS:

1.  The applicant's contentions and sequence of events described in his memorandum for record are noted by the Board.  

2.  The Board notes that after a review of the applicant's complete file that PERSCOM recommended that this Board grant a military education waiver for the 2002 criteria for promotion consideration to major.

3.  The Board also notes that if the applicant were granted a waiver he would be considered for promotion by an SSB under the 2002 criteria.  If considered and selected for promotion by an SSB, he would have 18 months to complete his education from the approval date of the SSB that selected him for promotion.  If selected for promotion and the applicant does not complete the education in the required timeframe his name would be removed from the board as a recommend for promotion.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected: 

a.  by granting him a military education waiver, as an exception to policy, for the 2002 criteria for promotion consideration to major;

b.  by sending the appropriate officer records for the applicant to the next scheduled SSB for promotion consideration to major under the 2002 criteria;

c.  if selected for promotion to major, by promoting him with the appropriate date of rank and effective date of promotion consistent with his SSB results;
 d.  by providing him all back pay and allowances consistent with the above corrective actions;

e.  if considered and selected for promotion by an SSB, allowing him 
18 months to complete his education from the approval date of the SSB that selected him for promotion; and

f.  if the applicant is selected for promotion and does not complete the education in the required time, his name will be removed from the board as a recommend for promotion and discharged based on these actions in accordance with regulation.

BOARD VOTE:  

__cg___  __dh___  ___rs___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Curtis L. Greenway__
		        CHAIRPERSON

INDEX

CASE ID	AR2002073060	
SUFFIX		
RECON		
DATE BOARDED	20021031	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . USAR	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.310		
2.		
3.		
4.		
5.		
6.