MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            19 August 2003                  
	DOCKET NUMBER:   AR2003086624

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. John T. Meixell		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, that she be reinstated in the U. S. Army Reserve (USAR).

APPLICANT STATES:  That due to her personal family situation, she was unable to pursue the education requirements required to be promoted to major.  She provides her application for [re]appointment packet; a letter from her Representative in Congress; and a letter from the commander of the 2d Battalion, 3d Brigade, 84th Division as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

She entered active duty as a Regular Army second lieutenant after graduating from the U. S. Military Academy on 22 May 1985.  She was promoted to captain on 1 October 1989.  She was honorably separated on 23 May 1990 after submitting an unqualified resignation.  She was appointed a first lieutenant in the USAR on 23 May 1990.  She was promoted to captain in the USAR on an unknown date.

By memorandum dated 6 June 1997, the applicant was notified that she had been considered but not selected for promotion.  Her records indicated she had not completed the required civilian or military education (apparently the Officer Advanced Course) by the date the board convened (11 March 1997).

Apparently, the applicant was not selected for promotion a second time.  She was discharged from the USAR effective 19 February 1999.

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and commissioned and warrant officers of the USAR.  Table 2-1 states that service requirements for promotion from captain to major by a mandatory board are 7 years in the lower grade.  In pertinent part, it states that, to qualify for selection, commissioned officers must complete the educational requirements in table 2-2 not later than the date the selection board convenes.  Table 2-2 states that to qualify for promotion from captain to major the officer must complete any Officer Advanced Course.  

Army Regulation 135-175 prescribes the policies and criteria governing the separation of Reserve officers of the Army.  In pertinent part, it states that an officer in the grade of first lieutenant, captain, or major, who has completed his or her statutory military service obligation, will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components selection board.

Army Regulation 135-100 provides procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army.     In pertinent part it states that commissioned officers twice passed over for promotion or otherwise released from active duty or active status are not eligible for appointment.  Individuals in this category are eligible to apply for appointment as a USAR warrant officer if otherwise qualified.

Title 10, U. S. Code, section 14505 states that a captain on the reserve active-status list of the Army, who has failed of selection for promotion to the next higher grade for the second time and who has not been selected for continuation on the reserve active-status list, shall be separated in accordance with section 14513 of this title not later than the first day of the 7th month after the month in which the President approves the report of the board which considered the officer for the second time.

Title 10, U. S. Code, section 14513 states that each reserve officer of the Army who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14505 shall (1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer's armed force; (2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or (3) if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged form the officer's reserve appointment.

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

1.  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 this requirement.

2.  The Board has considered the circumstances behind the applicant failing to complete the required education to qualify for promotion to major.  However, it appears that at the time of her second nonselection for promotion to major the Secretary did not determine that she had skills which could be required to meet mobilization needs.  Regardless of whether she now has such skills, since she did not meet the criteria for transfer to an inactive status or transfer to the Retired Reserve at the time, she was required by statute to be discharged from her reserve appointment.

3.  It would not be equitable to grant the applicant a waiver of the education requirement (presumably completion of an Officer Advanced Course) when all other captains are required to complete the same educational requirements prior to becoming eligible for promotion to major.  The Board concludes that neither would it be equitable to reinstate the applicant in the USAR when, by regulation, being twice nonselected for promotion to the next higher grade makes one ineligible for appointment in the USAR.

4.  Regrettably, 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___  __mvt___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086624	
SUFFIX		
RECON		
DATE BOARDED	20030819	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	102.09	
2.		
3.		
4.		
5.		
6.