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SPARANO v. SECRETARY OF THE ARMY

May 26, 1982

CARL P. SPARANO, Plaintiff,
v.
SECRETARY OF THE ARMY, and THE UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: BIUNNO

 BIUNNO, Senior District Judge.

 This is a review of a decision by the Army Board For Correction of Military Records. (Board). The jurisdiction of the District Court to review a Military Board has been clearly established within this circuit Ragoni v. U.S., 424 F.2d 261, 263 (CA3, 1970), Neal v. Sec of Navy, 639 F.2d 1029 (CA3, 1981).

 The review is limited to a review of the record before the Board to determine whether there was substantial evidence to support the findings of the Board. The court is not to make evidentiary findings of its own Neal, supra.

 The petitioner was an officer in the United States Army Reserve. He obtained the rank of Captain January 18, 1968. He served as Finance Officer of 78th Training Division, Army Ready Reserve.

 At the time of his promotion in 1968 the Army required that a Captain complete at least 50% of his Officer Advance Courses in order to be eligible for promotion to the rank of Major, AR 135-55. This regulation was changed in 1969 to require that 100% of the Officer Advance Courses be completed in order to be eligible for promotion to Major. In the absence of a vacancy, a Captain cannot advance to Major until the completion of seven years service as Captain, and is automatically considered for promotion at that time, AR 135-155 (Oct. 1969).

 In 1972 petitioner encountered disagreement with the commanding general of the 78th Division due to the fact that petitioner wore a wig to conceal his baldness. He could not resolve this with his commanding officer, so at his own request he transferred to a Reserve Control Group in January, 1973 (Ex A pg 18). Petitioner remained with this unit until October 1, 1974 when he transferred back to the 78th Training Division (after a new commanding general took office).

 While petitioner was still in the Control Group in April of 1974, he first became eligible for consideration for promotion to Major. In 1974 the Army changed its dates when promotion boards would be scheduled to meet. The meetings had usually been held in September. Possibly because of the Federal fiscal year change, the meeting date of the promotion board was moved from September, 1974 to April, 1974. However, the education requirement was allowed to be completed by September, 1974 so as not to prejudice anyone due to the change that transition year. The petitioner was notified of his consideration and of the changes by letters to his home on December 13, 1973 (Ex C pg 27) and February 18, 1974 (Ex C pg 28).

 The petitioner failed to complete his educational requirements by the September date and on October 21, 1974 (Ex C pg 29) he was notified of his being passed over for promotion. This letter also informed the petitioner that he would be considered by the next board that met, that meeting the education requirement was mandatory, and if the next promotion board failed to select him he would be discharged from the Army Reserve.

 On petitioner's return to the 78th Training Division in October, 1974 he had spoken with Warrant Officer Francis T. Dreher (Ex C pg 31) in regard to his eligibility for promotion. He was advised that "if USAR promotion boards were handled in 1975 as they were in 1974", he would have until at least September, 1975 to complete his educational requirements. In December, 1974 through IA Cir 135-23 (Ex C pg 35) the 78th Division was informed that the promotion board for Major was to meet in April of 1975. In February, 1975 Warrant Officer Dreher informed petitioner the promotion boards would not be handled as they were the previous year and that his educational material must be completed by April.

 At this point petitioner made an effort to complete his education by getting bulk courses from the correspondence school conducting the courses (USAIA). The petitioner was unable to get everything he needed due to an administrative conversion of the school to a computer system. When the promotion board met in April of 1975, petitioner once again was not promoted for failure to complete his educational requirements, and was retired from the Army Reserve.

 On appeal to the Board, the denial of his promotion was upheld because petitioner simply waited too long to complete his education. Thus no injustice occurred to the petitioner.

 The petitioner argues that several events worked together to prevent him from completing his educational requirements; that since these events were not of his own making, there is an injustice that the Board could have corrected. Thus, he says, this court should find that there is no substantial evidence to support the Board holding that no injustice occurred to petitioner.

 The first event complained of is that petitioner's transfer from the 78th Training Division to the Reserve Control Group took petitioner out of touch with Army affairs. Thus he was unaware of the change in requirements ...


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