IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080002705


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, a military education waiver and that his date of rank be adjusted to 20 June 2006.

2.  The applicant states, in effect, that he was unable to complete the Officer Basic Course until 13 June 2007 because he was attending law school.  He contends that several other officers in his training unit had been in the same position and they received their promotions retroactively.  

3.  The applicant provides copies of a memorandum for another officer’s promotion and a memorandum of support for the applicant to receive a military education waiver and adjustment of his date of rank. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty as a first lieutenant, United States Army Reserve.

2.  On 20 June 2004, the applicant was appointed a second lieutenant, Military Intelligence, United States Army Reserve.  

3.  On 5 August 2004, the applicant was transferred from the USAR Control Group (Annual Training) to the 88th Regional Reserve Command.


4.   The applicant’s Service School Academic Evaluation Report, dated 13 June 2007, shows that he completed the Military Intelligence Officer Leadership Course.  He achieved the course standards and was rated as superior in all demonstrated abilities.  

5.  The applicant was promoted to first lieutenant with an effective date and date of rank of 13 June 2007.

6.  In a memorandum dated 24 September 2007, the Commander, 2nd Battalion, 329th Regiment, stated, in effect, that the applicant’s unit had not sent him to the Basic Officer Leadership Course and that at the time he was completing work on his law degree.  The commander contended that these circumstances allowed for an education waiver in accordance with Army Regulation 135-155 and recommended that his date of rank be changed from 13 June 2007 to 20 June 2006.

7.  The applicant provides a copy of promotion orders, dated 2 January 2002, for another officer who was promoted from second lieutenant to first lieutenant with an effective date and a date of rank of 6 August 2001. 

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, United States Army Human Resources Command, St. Louis, Missouri.  It stated that the applicant was considered for promotion by the March, September, December 2006; and the March 2007 Administrative Promotion Boards and that he was not selected for promotion because he had not completed an officer basic course.  Paragraph 2-8b(1) and Table 2-2, of Army Regulation 135-155, that the applicant referenced in his application pertains to second lieutenants assigned to the Officer Active Duty Obligor (OADO) Control Group or who are under administrative control of OADO with concurrent assignment to a Reserve component.  These officers are considered educationally qualified for promotion to first lieutenant during the period of assignment to OADO.  Because the applicant was a member of the Annual Training Control Group with a subsequent assignment to a troop program unit, he did not meet the requirements to be considered as educationally qualified for promotion under this regulatory provision.  Paragraph 4-17 of this same regulation provides that a qualified second lieutenant will be promoted when he meets the time in grade and promotion eligibility requirements.  The applicant met the TIG requirement on 19 June 2006; however, he did not meet the education requirement until 13 June 2007.  Based on the date the education was completed, his date of rank is correct.

9.  On 5 May 2008, the applicant responded to the advisory opinion, stating that the reasons provided in the advisory opinion have already been addressed in his initial letter of appeal to this Board and that the advisory opinion does not address the precedent argument made in his appeal. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant did not meet the educational requirements for promotion to first lieutenant until 13 June 2007.  Furthermore, he was not assigned to the OADO Control Group and was not considered educationally qualified.  Therefore, the applicant’s promotion to first lieutenant with an effective date and date of rank of 13 June 2007 was correct.

2.  The applicant has not provided sufficient evidence to support his argument that other officers were granted retroactive promotions.  While the promotion orders do show that another officer had received a retroactive promotion, they do not show that the circumstances of that promotion were identical or significantly similar to his own.

3.  However, as a matter of equity, the applicant’s records should be corrected to show that he requested and was granted an military education waiver based on his attendance in law school and that this waiver was granted prior to March 2006.    

4.  Furthermore, the applicant’s records should be submitted for reconsideration by a special selection board under the same criteria as the March 2006 and subsequent boards.

BOARD VOTE:

____X___  ___X ___  ___X____  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.  waiving his military education requirement for calendar year 2006;
      
      b.  submitting his records to a duly constituted selection board/advisory board for promotion consideration for first lieutenant under the 2006 year criteria; 
      
      c.  showing his records are further corrected, if selected for promotion to first lieutenant on his date of eligibility of 20 June 2006, or as determined by appropriate Departmental officials, under the 2006 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion; and
      
      d.  notifying him, if he is not selected.





__________ _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)                                         AR20070015723



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ABCMR Record of Proceedings (cont)                                         AR20080002705



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