RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  10 February 2004
	DOCKET NUMBER:  AR2003090384

	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. John N. Slone		Chairperson	
	Ms. Linda M. Barker		Member	
	Mr. Richard T. Dunbar		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, a military education waiver and promotion reconsideration to major under 2003 criteria.

2.  The applicant states that due to an administrative error by the United States Army Transportation School he was unable to complete the Transportation Officer Advanced Course (OAC) in January 2003, which is a requirement for promotion selection.  He also states that he has been on active duty since 23 January 2003 in support of Operation Enduring Freedom and was not able to fulfill his education requirement prior to the 2003 selection board convening.

3.  The applicant provides a copy of a memorandum from the United States Army Transportation School.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show that he was commissioned in the Regular Army as a second lieutenant effective 31 May 1990.

2.  The applicant completed his branch officer basic course effective 19 December 1990.  He was promoted to first lieutenant effective 31 May 1992.

3.  The applicant was released from active duty effective 30 April 1993, by reason of unqualified resignation and appointed in the Army Reserve.

4.  The applicant was appointed in the Louisiana Army National Guard (LAARNG) effective 1 November 1993.

5.  The applicant's records show he received an officer evaluation report for the period 8 July 1995 through 23 March 1996.  In this officer evaluation report, the rater stated, "the applicant needs to complete his OAC as soon as possible."

6.  The applicant was considered and not selected for promotion to captain by the Fiscal Year 1996 Reserve Components Selection Board (RCSB) and the Calendar Year 1996 RCSB that convened on 14 November 1995 and 12 November 1996, respectively.  There is no information available to show why the applicant was not discharged after his second non-selection for promotion as required by law.

7.  The applicant was separated from the LAARNG effective 5 August 1997 and transferred to the USAR Control Group (Reinforcement).  He was assigned to a troop program unit effective 9 June 1998.

8.  The Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) determined that based on material error (missing officer evaluation reports) the applicant was eligible for promotion reconsideration to captain under Fiscal Year 1996 criteria.  The applicant was considered and selected for promotion to captain by a Promotion Advisory Board that convened on 7 August 2000.

9.  A promotion memorandum dated 5 June 2001, was issued to the applicant showing a promotion effective date and date of rank for captain of 30 May 1996.

10.  The applicant was considered and not selected for promotion to major by the 2002 and 2003 RCSB's, which convened on 4 March 2002 and 3 March 2003, respectively.  He was not qualified for promotion based on the lack of the required military education, completion of an OAC.

11.  The applicant was ordered to active duty in support of Operation Enduring Freedom with a reporting date of 23 January 2003.  

12.  On 18 June 2003, the applicant requested an education waiver from the Office of Promotions, Reserve Components, PERSCOM.

13.  In a memorandum dated 4 February 2003, the Assistant Commandant, United States Army Transportation School advised the Commander, Army Reserve Command, Fort McPherson, Georgia, that the applicant was not afforded the proper amount of time to prepare for his Army Physical Fitness Test (APFT) retest while attending Phase II of the Transportation OAC (TOAC).  The applicant did not complete Phase II of the TOAC conducted during 6-16 January 2003 because he failed the APFT on academic day 2 and the retest on academic date 5.  After failing the retest the applicant was academically dropped from the course.  The assistant commandant also stated that the applicant was given the retest three days early, so he was not afforded the appropriate amount of time to prepare for the APFT retest.  Due to this administrative error, it was recommended the applicant be afforded the opportunity to retake the TOAC.

14.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, PERSCOM, expressed the opinion that his office disapproved the applicant's request for an education waiver.  The Office of Promotions, Reserve Components can only grant a waiver for an upcoming selection board and the request must be received prior to the convening date of the selection board.  The 2003 selection board convened on 3 March 2003, and the applicant's request was received in his office on 18 June 2003.  

15.  The opinion also stated that the Army Board for Correction of Military Records (ABCMR) is the office that has the authority to grant a waiver for education for past criteria.  Based on a review of the circumstances presented, it 
was recommended that he be granted a waiver for the military education for the 2003 criteria.  If the applicant is considered and selected for promotion by a special selection board (SSB) he will have 18 months from the board approval date to complete the education.  

16.  The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 14 August 2003.  In his reply dated 15 October 2003, the applicant advised the ABCMR that he was non-selected for promotion to major by the 2003 selection board and has a pending separation date not later than 1 February 2004.  The applicant provided a copy of his notification of promotion status letter.

17.  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.

18.  The regulation also specifies that completion of an OAC not later than the day before the selection board convening date is required for promotion qualification to major.

19.  Army Regulation 135-155 further specifies that an officer who has been recommended for promotion must be medically qualified and meet standards of the Army Body Composition Program.  The regulation does not provide for reconsideration of an officer non-selected for promotion for failing the APFT.  Reconsideration boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error contained a material error or were not submitted to a mandatory promotion selection board for consideration.

20.  The regulation also specifies that a first lieutenant who has failed selection for promotion to captain for the second time will be removed from active Reserve status unless the officer can be credited with 18 or more but less 20 years of qualifying service for retired pay.

21.  Army Regulation 350-1 prescribes the policies and procedures for developing, managing, and conducting Army training and education programs.  Chapter 3-10 of the regulation specifies that Reserve Component soldiers attending training during the inactive duty phase will take the initial APFT within 72 house of enrollment.  If the soldier fails this initial APFT, then the soldier will be provided one retest not earlier than academic day 6 or later than academic day 7 of the POI after the initial APFT. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to a military education waiver and promotion reconsideration to major.  He was fairly considered twice for promotion to major and not selected.  

2.  The applicant's contentions have been noted; however, the applicant was not selected for promotion to major based on not meeting the required military education by the board convening dates.  The applicant did not apply for an education waiver until after the convening date of the 2003 promotion selection board and has not satisfactorily explained his delay in fulfilling his education requirement prior to the 2002 selection board convening.  

3.  Pertinent regulations show that the applicant should have been provided one retest not earlier than academic day 6 or later than academic day 7 of the program of instruction after the initial APFT and in this case he was not.  However, a 1-day delay in granting the applicant a retest does not show the applicant’s non-selection by the 2003 promotion selection board was unjust or inequitable.  Given that the applicant completed an officer basic course in December 1990 and that he had 11 years to complete an OAC, he knew, or should have known, that he would be considered for promotion to major by a RCSB as early as 2002 and that he needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.

4.  The applicant was advised no later than March 1996 that he needed to complete an OAC at his earliest opportunity.  If appears the applicant did not enroll in the OAC until 2003, over 6 years later, with the expectation of completing the course prior to the 2003 promotion selection board.  The applicant did not complete his military education by the convening dates of the 2002 and 2003 promotion boards, he was not qualified for promotion without the OAC, and he is also not entitled to promotion reconsideration to major under the 2003 criteria.  The requirement for an OAC is a long-standing requirement for promotion to major. 

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  ___lb___  ___rd_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		____John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090384	
SUFFIX		
RECON		
DATE BOARDED	20040210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.10	
3.		
4.		
5.		
6.