RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2006
	DOCKET NUMBER:  AR20060010134 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

Member

	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 that he be given a waiver of civilian education and that his file be sent to a Special Selection Board (SSB).  He also requests that if he has reverted enlisted status and is selected by the SSB, that time be shown to have been continuous commissioned service with no break in service.  

2.  The applicant states that he submitted a request for an education waiver in September 2006 but due to administrative errors it was not properly forwarded through all the necessary channels.

3.  The applicant provides copies of a 1 August 2006 DD Form 214 (Certificate of Release or Discharge), a 2 September 2005 five page application for waiver of education, a 26 May 2006 letter from The Adjutant General KYARNG requesting correction of the record, eight pages of e-mail correspondence related to the waiver request, and eight service record documents related to his status.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Kentucky Army National Guard (KYARNG) on 6 December 1989.  

2.  He served on active duty from 17 January 1990 through 22 April 1990, 1 April 1991 through 14 December 1991, 16 December 1991 through 30 March 1992, 1 August 1992 through 28 May 1993, and 1 November 1995 through 30 November 1995.

3.  The applicant attended Officer Candidate School.  He was commissioned a second lieutenant, in the KYARNG, and received Federal Recognition effective 1 August 1999.  He was promoted to first lieutenant in KYARNG and received Federal Recognition effective 31 July 2001.

4.  The applicant was considered for promotion by 2005 Captain's Army Reserve Components Selection Board.  On 1 March 2005 he was notified that he had been nonselected for promotion due to not having met the civilian and/or military educational requirements.

5.  The applicant served on active duty for the period 1 December 2005 through 1 August 2006 in support of Operation Iraqi Freedom.


6.  On 2 September 2005 the applicant submitted a request for waiver of the civilian educational requirements.  In that request the applicant indicated he had been unable to complete his educational program due to several factors most noted his deployments and the job demands of his new position as the commander for the Counter Drug Detachment. 

7.  On 2 February 2006 he was notified of a second nonselection for promotion to captain.

8.  The Adjutant General (TAG), KYARNG, submitted a memorandum to the Chief, Office of Promotions.  He requested that the applicant be placed before an SSB.  He stated that a request for a waiver of the educational requirement had been submitted by the applicant on 6 September 2005 and forwarded to the Human Resources Command the same day.  Following receipt of notification of nonselection, in February 2006, contact with HRC was made.  HRC responded stating they received the application but since it had not come through the National Guard Bureau it had been sent back without action.  The TAG indicates that there is no indication that his organization received the returned request.  The TAG again requested that the applicant be granted a waiver of the civilian education requirement and states that the fault lies not with the applicant but with the KYARNG and HRC.  The TAG indicated the applicant would receive his degree on or about 1 August 2006 and requested his file be referred to an SSB.

9.  On 22 February 2007 he was again notified of a nonselection for promotion to captain.

10.  In the processing of this case an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components.  It was recommended his request for a civilian education waiver for the 2005 RCSB be approved and if approved, the applicant should be considered by an SSB.  The opinion noted that if selected the applicant would not be eligible until the date he completed his educational requirement.  It was further noted that if selected any discharge action should be voided and the applicant be reverted to 1LT.

11.  A copy of the advisory opinion was forwarded to the applicant.  There is no indication in the available records of any reply. 

12.  The available record does not contain any indication of the applicant's current status or any documentation of the completion of his educational requirements.

DISCUSSION AND CONCLUSIONS:

1.  Through no fault of the applicant his request for a waiver of civilian education was not properly processed in time for consideration by any of the three RCSBs that reviewed his file.  With the favorable recommendations by both The Kentucky Adjutant General and the Chief, Special Actions Branch, Office of Promotions, Reserve Components, it is appropriate to grant the applicant the educational waiver. 

2.  The applicant was nonselected by the 2005, 2006 and 2007 RCSBs.  With the granting of the educational waiver, the applicant's file should be forwarded to an SSB for consideration of promotion to captain under the 2005, 2006 and 2007 criteria as appropriate.  

3.  The KYARNG TAG indicates that the applicant would receive his degree in August of 2006.  The available record does not contain any notation of his completion of the degree and his current military status is not consistently recorded in the different Perms (Personnel Electronic Records Management System) sites. Therefore, prior to the referral to any SSB the applicant's records should be updated as necessary.

4.  If selected under either the 2005 or 2006 RCSB criteria the applicant should be promoted with an effective date of promotion not earlier than the date of the granting of his degree.  If selected for promotion under the 2007 criteria his date of promotion should be consistent with others selected by this board assuming he is educationally qualified and meets all other promotion criteria.

5.  If selected and promoted to captain the applicant is entitled to retroactive entitlement to all benefits and pay in the higher rank effective the date of his promotion. 

6.  Further, in the event that the applicant did revert or reenlist in an enlisted status and he is selected by any of the SSBs, any discharge as an officer and enlisted contract should be voided and he should be shown to have had continuous service with retroactive entitlement to benefits in the higher rank.

BOARD VOTE:

__JLP___  __ELS__  __LDS __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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:
	
	a.  granting the applicant a waiver of the educational requirement effective 2 September 2005;

	b.  having the KYARNG and the HRC, as necessary, ensure that the applicant's records are properly updated, correct, and current prior to being referred for any SSB consideration; 

	c.  referring his file to an SSB for promotion consideration to captain under the 2005, 2006, and/or 2007 criteria as required;

	d.  in the event that the applicant has reenlisted or reverted in an enlisted status and is selected by any of the SSBs, his discharge as an officer and enlisted contract should be voided and he should be shown to have had continuous service with retroactive entitlement to benefits in the higher rank; and

	e.  if the individual is not selected for promotion, that he be so notified.




__   Linda D. Simmons____
          CHAIRPERSON


INDEX

CASE ID
AR20060010134
SUFFIX

RECON
 
DATE BOARDED
20070508 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
                    . . . .  
DISCHARGE REASON

BOARD DECISION
  GRANT
REVIEW AUTHORITY

ISSUES         1.
103
2.

3.

4.

5.

6.