IN THE CASE OF: BOARD DATE: 17 September 2008 DOCKET NUMBER: AR20080014036 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his record be corrected in a manner that would lift the age barrier to his being commissioned in the United States (U.S.) Army. 2. The applicant states, in effect, he turned 42 while attending the Officer Candidate School (OCS), and is now facing elimination due to legal technicalities that require his elimination from the program due to age. He states that he was accepted into the program and given every expectation that he would receive a commission in the Regular Army (RA) if he successfully completed the course. 3. The applicant provides no additional documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant's Official Military Personnel File (OMPF) contains an enlistment contract (DD Form 4/3) that shows on 19 March 2008, the applicant enlisted in the RA for three years in the grade of E-4. 2. The DD Form 1966 (Record of Military Processing-Armed Forces of the United States) completed on the applicant during his enlistment processing lists his date of birth as 11 May 1966. This document was certified by the recruiting guidance counselor on 12 February 2008. 3. The Statement of Enlistment (DA Form 3286) completed on the applicant during his enlistment process and identified as Annex B confirms he enlisted for Program 9D (U.S. Army Officer/Warrant Officer Enlistment Program) in military occupational specialty (MOS) 09S (Commissioned Officer Candidate) with guaranteed OCS training. This document was authenticated with the signatures of both the applicant and the recruiting guidance counselor on 19 March 2008. 4. During the processing of this case, an advisory opinion was obtained from the Department of the Army (DA) Deputy Chief of Staff, G-1, Chief, Officer Division. This official states, in pertinent part, that the applicant was recruited for the OCS program and began the process in good faith. He confirms the applicant completed all the milestones that the Army asked him to complete. He further states that it can only be concluded that the applicant was the victim of an OCS selection process that failed to allow enough backwards planning to mitigate the unintended delays in the process with enough flexibility for error to allow the applicant to complete training prior to his 42nd birthday. He further states that another error source is the misinterpretation of the eligibility criteria listed in Military Personnel (MILPER) message 07-226, which states, in pertinent part, that Soldiers may apply for OCS training up to age 42. He indicates that an applicant that applies at age 42 is already too old to complete OCS requirements for a RA commission. He confirms a correction to this MILPER message was released, but not soon enough to prevent the applicant from training at OCS. He finally recommends that the applicant be allowed to be commissioned a second lieutenant (2LT) in the RA with an option to retire from the military with 20 years of active commissioned service if he meets all other criteria. 5. Title 10 of the United States Code, Section 532 (Qualifications for original appointment as a commissioned officer) provides the statutory requirements for original appointments as a commissioned officer. It states, in pertinent part, that in order to qualify for an original commissioned officer appointment, a member must be able to complete 20 years of active commissioned officer service before his/her sixty-second birthday. DISCUSSION AND CONCLUSIONS: 1. The applicant's request that his record be corrected in order to allow him to complete 20 years of active commissioned officer service before his/her sixty-second birthday has been carefully considered and found to have merit. By law, in order to qualify for an original commissioned officer appointment, a member must be able to complete 20 years of commissioned officer service prior to reaching his/her sixty-second birthday. 2. In this case, the evidence of record confirms that although he properly presented his date of birth of 11 May 1966, as evidenced by enlistment processing documents on file in the OMPF, the applicant was accepted for enlistment as an officer candidate and for OCS training by recruiting officials; and on 19 March 2008, in good faith, he enlisted in the RA in accordance with the terms of this contract with the expectation and promise that if he successfully completed OCS he would be commissioned a 2LT in the RA. 3. In view of the facts of this case, the Army has a moral obligation to satisfy the terms of this contract within the existing law as a matter of equity and justice. As a result, it would be appropriate to correct his record to show he was commissioned/appointed a 2LT in the RA on 10 May 2008, the day prior to his forty-second birthday, which will ensure he has the opportunity to complete 20 years of commissioned officer active duty service prior to his sixty-second birthday. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 the applicant was appointed a second lieutenant in the Regular Army on 10 May 2008. _______ _ x_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080014036 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014036 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1