IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009001 


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 civilian educational waiver and promotion consideration to captain (CPT) under the 2003 criteria.
 
2.  The applicant states, in effect, that she was commissioned through Officer Candidate School (OCS) 2.  She was deployed between February 2003 and April 2004 and could not complete her civilian educational requirement.  She completed her baccalaureate degree (BA) within 6 months of returning from deployment.  She contends she was not selected by the Fiscal Year 2003 Department of the Army (DA) Reserve Components Selection Board (RCSB) because she had not completed her educational requirement. 

3.  The applicant provides a copy of her OCS Graduate Diploma and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is a CPT in the Active Guard Reserve (AGR) Program. 

3.  The applicant was initially appointed in the Pennsylvania Army National Guard (PAARNG) as a second lieutenant on 25 July 1998.  On 1 November 1999, she was discharged from the PAARNG to accept appointment as an officer in the U.S. Army Reserve (USAR).

4.  On 24 July 2000, the applicant was promoted to first lieutenant (1LT).

5.  The applicant was ordered to active duty in support of Operation Enduring Freedom from 7 February 2003 through 9 May 2004.

6.  In October 2004, the applicant completed her BA Degree in General Studies from Columbia College.  From a review of the applicant's college transcript, it appears she was enrolled in the Online Campus and took courses beginning on 18 August 2003 through 9 October 2004.

7.  On 14 February 2005, the applicant was promoted to CPT. 

8.  In processing this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Human Resources Command (HRC), St. Louis, who indicates that the applicant was not selected for promotion by the FY 2003 CPT RCSB because she did not meet educational requirements.  He recommends granting the applicant a civilian educational waiver and consideration by a special selection board (SSB) for CPT under the FY 2003 promotion criteria.

9.  On 8 August 2008, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  On 20 August 2008, the applicant concurred with the advisory opinion.  

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR.  Paragraph 2-9 stipulates, in pertinent part, that effective 1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a BA degree from an accredited institution recognized by the Secretary of Education or, within 3 years preceding promotion, the officer has earned a BA degree from an unaccredited educational institution that has been recognized by the Department of Defense for purposes of meeting officer educational requirements.  This regulation also specifies that in order to be promoted to CPT an individual must have completed a minimum of 2 years as a 1LT or a maximum of 5 years of time in grade. 

11.  Paragraph 4-21 of Army Regulation 135-155 states, in pertinent part, that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.   If an officer selected by a mandatory promotion board has a maximum time TIG date that is before the approval date of the board, the officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended or the date of Senate confirmation (if required). 

12.  Army Regulation 135-155 specifies that promotion reconsideration by a 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was unable to complete her civilian educational requirements for promotion to CPT because she was deployed in support of Operation Enduring Freedom.

2.  A review of the applicant's entire record shows she was initially commissioned in the PAARNG on 25 July 1998, and in November 1999 was appointed as a Reserve officer.  She was promoted to 1LT on 24 July 2000.  

3.  The applicant was appointed as an officer on 25 Jul 1998 and was ordered to active duty in support of Operation Iraqi Freedom on 7 February 2003, by which time she had been commissioned for nearly 5 years, and had ample time to complete her BA requirements for promotion to CPT, and she failed to do so.  She now contends that she could not complete her BA because she was deployed; however, a review of her college transcript reveals that she was enrolled in an Online Campus through Columbia College and that she enrolled and completed 4 courses while she was deployed.  As such, her contention has no merit.  

4.  Notwithstanding the recommendation in the advisory opinion, the applicant has not provided a reasonable explanation to support her request for an educational waiver.  She had ample time to complete her BA requirements for promotion to CPT prior to her deployment. 

5.  Given the above, there is no basis to grant the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___        XXX                ___
                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)                                         AR20080009001





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ABCMR Record of Proceedings (cont)                                         AR20080009001



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