RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:  AR2003091212

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lawrence Foster		Member	
	Ms. Margaret V. Thompson		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 the 2003 criteria.

2.  The applicant states that she submitted a request for a waiver by fax on 26 February 2003 and by electronic mail on 27 February 2003 prior to the convening date of the 3 March 2003 promotion selection board.  She also states that she was advised twice to fax her request and no one would acknowledge receipt.  She also did not receive a response to her request and her electronic mail should be proof she requested a waiver in a timely manner.

3.  The applicant provides copies of her faxed request dated 26 February 2003 and electronic mail requests dated 27 February and 28 February 2003, her proof of completion of Phase I of the Quartermaster Officer Advanced Course (OAC), her Bachelor of Science (BS) and Master of Arts degree certificates, her academic record, and her husband's death certificate.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records were not provided to the Board.  Information herein was obtained from documentation submitted by the applicant and information obtained from the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM).

2.  The applicant was appointed in the Georgia Army National Guard (GAARNG) as a second lieutenant effective 6 August 1988.  She was promoted to first lieutenant effective 5 August 1991.

3.  The applicant was separated from the GAARNG effective 16 May 1995 and transferred to the USAR Control Group (Reinforcement).  She was promoted to captain effective 4 August 1995.

4.  The applicant completed her BS degree on 17 May 1998 and her Master of Arts degree on 28 August 1999.  She completed Phase I of the Quartermaster OAC effective 10 November 1999.

5.  Based on the required 7 years time in grade, her promotion eligibility date (PED) for promotion to major was 3 August 2002.

6.  The applicant was considered and not selected for promotion to major by the 2002 Reserve Components Selection Board (RCSB) that convened on 3 April 2002.  She was not qualified for promotion based on the lack of the required education.

7.  On 26 February 2003, the applicant faxed to the Army Reserve Personnel Command a letter requesting an education waiver.  In the applicant's request she stated that her husband's sudden death, her being put on profile in December 2002 and cleared on 24 February 2003, and no scheduled classes for March prevented her from completing the OAC.  She also attached copies of her bachelor and two master degrees certificates, her completion form for the OAC Phase I, and her husband's death certificate to her request.

8.  On 27 February and 28 February 2003, the applicant requested via electronic mail, military education waivers for Phase II of the OAC due to her temporary profile for 90 days beginning in December 2002, the unforeseen death of her husband on 13 August 2002, and all the schools were full.

9.  The applicant was considered and not selected for promotion to major by the 2003 RCSB that convened on 3 March 2003.  She was not qualified for promotion based on the lack of the required military education.  The President approved the board results on 17 July 2003.

10.  Based on her two-time non-selections she was identified to be separated from the USAR by 1 February 2004, 7 months after the President approved the board.  Available information shows the applicant's records are being reviewed for retirement point credit for retired pay.

11.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, PERSCOM, expressed the opinion that the applicant was considered and not recommended for promotion to major by the 2002 RCSB because her record did not contain evidence that she had completed a baccalaureate degree or an OAC.  The applicant was considered and not recommended for promotion by the 2003 RCSB because she still had not completed an OAC.  The applicant attempted to request a military education waiver prior to the 2003 board convening on 3 March 2033; however, it reached that office after the convening date.  The Office of Promotions, Reserve Components, PERSCOM can only grant waivers prior to the convening date of the board; therefore, the applicant has correctly applied to the Army Board for Correction of Military Records.  Based on the available information, it was recommended that the applicant's request for a wavier for the 2003 criteria only be approved.

12.  The opinion was forwarded to the applicant for her acknowledgment/rebuttal on 26 September 2003.  She did not respond.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (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.

14.  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.

15.  The regulation also specifies that a captain who has failed selection for promotion to major 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.

16.  Army Regulation 135-155 also specifies that the Chief, Office of Promotions, Reserve Components, PERSCOM is the approval authority for all requests for exception to non-statutory promotion requirements and that requests must contain complete justification.  

DISCUSSION AND CONCLUSIONS:

1.  In this case, the applicant requested a delay of promotion consideration and an education waiver while she completed her military schooling to fulfill the education requirement for promotion to major in 2003.  The applicant twice attempted to request a military education waiver prior to the convening date of the 2003 promotion board; however, the requests did not reach the Office of Promotions, Reserve Components until after the 3 March 2003 convening date.  That office can only grant waivers prior to the convening date of the board. 

2.  It is concluded 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 the 2003 criteria.  If the applicant is considered and selected for promotion by a SSB she will have 18 months from the board approval date to complete the military education.  

3.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

BOARD VOTE:

__ro____  __lf____  __mt___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a waiver for the military educational requirement for promotion to major, for the individual concerned is approved.

2.  That, following administrative implementation of the foregoing, her records be submitted to a duly constituted SSB for promotion reconsideration under the 2003 criteria.

3.  That, if selected, her records be further corrected by showing she was promoted to the next higher grade on her date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided she was otherwise qualified and met all other prerequisites for promotion.

4.  That if selected for promotion and the applicant was separated, her records be further corrected to show:

	a.  that her discharge, is void, and of no force or effect, that she was credited with qualifying service for Reserve retirement for her respective retirement years, from the dates of her now-voided discharge to the date of her return to the Ready Reserve;

	b.  that an adequate explanation be placed in her official personnel files to show that the gap in her officer evaluation reports, from the dates of her now-voided discharge to the date of return to Ready Reserve status, was not caused by any fault on her part, and to insure that she is not prejudiced thereby in the consideration of any future personnel actions; and

	c.  that all documents related to her now-voided non-selection for promotion by the 2003 RCSB, and her discharge be expunged from her official military records.

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

		____Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091212	
SUFFIX		
RECON		
DATE BOARDED	20040224	
DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.10	
3.		
4.		
5.		
6.