PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 October 2003                  
	DOCKET NUMBER:   AR2003087600

	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. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr.. Frank C. Jones, II		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 an education waiver and promotion reconsideration to major by a special selection board (SSB).

3.  The applicant states that he was a two-time non-selection for major solely due to the lack of the military police officer advanced course (OAC).  He completed the OAC effective 10 October 2002.  He also states that he was unable to complete the OAS after the attacks of 11 September 2001 because of his job responsibilities.  In support of his request he submits a letter from his civilian commander at his full-time job, copies of his non-selection memorandums, and his course completion certificate.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 10 May 1987.

5.  He was promoted to first lieutenant effective 26 May 1990 and to captain effective 15 November 1994 with a date of rank of 25 May 1994.

6.  He was considered and not selected for promotion to major by the 2001 and 2002 Reserve Components Selection Boards (RCSB).  The boards convened on 6 March 2001 and 4 March 2002 respectively.

7.  He enrolled in and completed the correspondence phase of his OAC between 10 October 2000 and 30 September 2001.

8.  He completed his branch OAC resident phase effective 11 October 2002, after the convening date of the 2002 RCSB.

9.  On 20 December 2002, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command advised the applicant that based on the fact that he did not complete the OAC prior to the convening date of the 2002 RCSB, he did not have a basis for SSB consideration.  The Chief also advised that the 2002 non-selection was his second non-selection for promotion; therefore, the applicant must be removed from a Reserve status.  The Chief further advised the applicant to submit an Application for Correction of Military Records to the Army Review Board Agency, and if that agency grants a waiver for the education it will direct PERSCOM to submit his file to an SSB under 2002 criteria.  If he is considered and selected for promotion by an SSB, his removal from service will be voided and he will be returned to a Ready Reserve status.

10.  He was discharged from the Reserve effective 31 January 2003, based on his two non-selections.

11.  In a letter dated, 13 March 2003, the applicant’s commanding officer, Department of Police, Syracuse, New York, states that the applicant is employed as a police detective sergeant for the City of Syracuse.  He was transferred to the Criminal Investigations Divisions in later September 2001.  Like all police agencies after the 11 September 2001 attacks, they experienced an increase in responsibilities associated with protecting the public.  The applicant’s position was one that required him to work longer hours for many months after the attack.

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an 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.

CONCLUSIONS:

1.  The applicant completed his resident OAC in the first available course possible due to his increased responsibilities associated with protecting the public as a police detective after the 11 September 2001 attacks.  The Board finds this claim has merit.

2.  The Board concludes that as a matter of equity, that the applicant should be granted a waiver of military education and promotion reconsideration to major by an SSB under 2002 criteria.  

3.  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 military educational requirement for promotion to major under 2002 criteria for the individual concerned.

2.  That, following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration under 2002 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 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 selected for promotion and the applicant was separated, his records be further corrected to show:

	a.  that his discharge, 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 to the date of his return to the Ready 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 to the date of return to Ready 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 be expunged from his official military records.

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

BOARD VOTE:  

_MMH___  _FCJ___  _WDP___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		      _Melvin H. Meyer__
		        CHAIRPERSON

INDEX

CASE ID	AR2003087600	
SUFFIX		
RECON		
DATE BOARDED	20031003	
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.