IN THE CASE OF:	  

		BOARD DATE:	  13 January 2009

		DOCKET NUMBER:  AR20080011614 


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, deletion of his second non-selection for promotion to major for appointment in the Army Nurse Corps.  

2.  The applicant states, in effect, that his second non-selection was unjust because he was member of the Individual Ready Reserve (IRR) for an extended period and did not receive the notification of consideration.  He also states, in effect, that after leaving the Idaho ARNG (IDARNG) he was placed in the IRR.  He was automatically considered for promotion and did not know it.  He was not selected a second time since he had not completed the officer advanced course (OAC) in Aviation.  He has since completed a degree in nursing.  He cannot be appointed as an officer with two non-selections.  According to Army regulations, he can be granted a waiver or correction if he is coming into a different branch than that which he was not selected in, if he has gone to school and is branch qualified.  He is branch qualified in the Army Nurse Corps and has submitted his entire packet to the Army Human Resources Command (AHRC), St. Louis, Missouri, but he needs to correct the two time non-selection.

3.  In support of his application, the applicant provides copies of his ARNG separation orders, his 2002 and 2003 Notification of Promotion Status memorandums, and his Reserve discharge orders.

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's military records show that he was appointed in the IDARNG, Aviation Branch, as a second lieutenant, effective 6 June 1987.  He was promoted to first lieutenant effective 5 June 1990. 

3.  The applicant was eliminated from the Aviation OAC due to personal misconduct effective 21 April 1993 and had not completed the course prior to elimination.

4.  The applicant was promoted to captain effective 7 April 1995.  He was separated from the IDARNG effective 15 June 1998 and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement (IRR)).

5.  Based on the required completion of 7 years time in grade, his promotion eligibility date for major was 6 April 2002.

6.  The applicant was considered and not selected for promotion to major by the 2002 Reserve Components Selection Boards (RCSB) that convened on 4 March 2002.  He was not qualified for promotion based on the lack of the required military education.

7.  On 16 July 2002, the Total Army Personnel Command [currently known as AHRC], St. Louis, Missouri, issued the applicant a Notification of Promotion Status memorandum.  The memorandum advised the applicant of his consideration and non-selection for promotion to major by the 2002 RCSB.  It also advised that his records did not indicate that he had completed the required civilian and/or military education by the day the board convened and he should be considered for promotion next year. 

8.  The applicant was considered and not selected for promotion to major by the 2003 RCSB that convened on 3 March 2003.  He was not qualified for promotion based on the lack of the required military education.

9.  On 7 August 2003, the AHRC, St. Louis, issued the applicant a Notification of Promotion Status memorandum.  The memorandum advised the applicant of his consideration and non-selection for promotion to major by the 2003 RCSB.  It also advised him that as a result of his second non-selection, he would be discharged in accordance with Army Regulation 140-10 and his established removal date was no later than 1 February 2004, unless he was eligible for and requested transfer to the Retired Reserve.

10.  The applicant's records did not show he completed an OAC prior to the convening dates of the 2002 and 2003 RCSBs.

11.  The applicant was honorably separated from the USAR, as a captain, effective 1 February 2004.  The Soldier Management System (SMS), AHRC, St. Louis, shows he was discharged from the USAR for non-selection of promotion.

12.  In an advisory opinion, dated 20 November 2008, the Chief, Special Actions Branch, DA Promotions, AHRC, St. Louis, stated that the applicant did not have a basis to have his second non-selection for promotion by the 2003 RCSB deleted from his file.  The applicant's consideration for promotion by the 2002 and 2003 RCSBs was in accordance with Army Regulation 135-155, paragraph 2-10.  The regulation states selection boards will consider an officer for promotion who have served on the Reserve Active Status List (RASL), the Active Duty List (ADL), or a combination of both during the one year period ending on the date the board convenes.  The IRR, which the applicant was assigned to at the time of his consideration for promotion is a component of the RASL; therefore, he was correctly considered for promotion.  The notification of his non-selections for promotion and the discharge orders were sent to his address on file there at the AHRC at the time.  The notification of non-selection for the 2002 board, dated 16 July 2002, states the applicant was not educationally qualified and would be considered the next year, if eligible.  Since he was still on the RASL and again not qualified he was correctly considered and non-selected for promotion by the 2003 board.  

13   The AHRC official also stated that the applicant was promoted to captain with a date of rank of 7 April 1995 and had ample time to complete the education prior to his second non-selection for promotion.  As noted in the SMS, in the entry dated 15 May 2002, he was in contact with his career management counselor and could have requested to be enrolled in the advanced course. There is a Service School Academic Evaluation Report, dated 28 May 1993, in the applicant's file verifying he attended the Aviation OAC in 1993 and was eliminated on 21 April 1993, prior to the course completion date of 28 May 1993. Based on this information, he recommended the applicant's request be denied.

14.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 3 December 2008.  In his rebuttal, dated 10 December 2008, the applicant stated that he requests an exception to policy that was within the domain of the ABCMR.  As stated in his records, he was eliminated from the course before completion; however, after this, he was re-slotted into the S-2 position, obtained a top-secret, and completed the Intel transition course at the top of his class.  Personal family matters forced him to leave the IDARNG after 14 years of service to move to Portland, Oregon, during which time he received  the aforementioned two time passover.  He is currently working in the Portland area as a registered nurse and trying to reenter into the Reserve Nurse Corps and the Army Nurse Corps will not accept him with a two-time passover on his record.  He has a long history of service with the ARNG and would like to continue to serve in the Reserve.

15.  Army Regulation 135-155 (Reserve Promotions), prescribes the policies and procedures for promotion of Reserve Component officers.  This regulation specifies that an ARNG or Reserve officer will be considered for promotion if they have continuously performed service on either the RASL or the ADL (or a combination of both) during the one year period ending on the convening date of the promotion board.  

16.  Army Regulation 135-155 also specifies that promotion to major requires completion of 7 years time in the lower grade and completion of an OAC no later than the day before the selection board convening date.  Individuals twice not selected for promotion to major will be transferred to the Retired Reserve if they are eligible and request such transfer or discharged.

17.  Army Regulation 135-155 further specifies that as an education exception, Army Medical Department (AMEDD) officers are not required to meet the military education requirements for promotion to major through colonel.  The Chief, Office of Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.  The ABCMR has the authority to grant a waiver for the military education for a past year criteria.

18.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) specifies that former commissioned officers twice passed over for promotion are not eligible for appointment unless a waiver is authorized. Requests for waiver must be submitted to the Appointment Directorate, AHRC, St. Louis, and contain complete justification.  

19.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to AMEDD Branches), paragraph 1-7 of this regulation specifies that requests for waiver of eligibility requirements will be considered when the individual was precluded for promotion selection for failure to obtain the required military education which is not required for officers in the category to which being appointed.  Applicants for appointment in the Army Nurse Corps must be a graduate of an educational program in nursing that prepares the individual to become eligible for licensure as a register nurse, with a baccalaureate degree in nursing.  AMEDD branch applications for appointment must be submitted to HQDA (SGPE-PD), 1900 Half Street, SW, Washington, DC  20324, for processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to removal of his second non-selection for promotion to major.  The applicant is also not entitled to a military education waiver.  He was fairly considered twice for promotion to major and not selected.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, the applicant was placed on the RASL effective16 June 1998, upon his transfer to the IRR.  Therefore, based on that transfer and his promotion eligibility date, he was eligible for consideration to the next higher grade by the 2002 and 2003 RCSB's. To be eligible for promotion he was required to have completed 7 years time in grade and a branch officer basic course and a branch OAC.  The applicant was enrolled in the Aviation OAC; however, he was eliminated due to personal misconduct effective 21 April 1993.  It appears that the applicant made no attempt to reenroll in the required course to complete the required military education in a timely manner.

3.  The applicant also has not satisfactorily shown that he was prevented from reenrolling in or completing an OAC prior to the convening dates of the 2002 or 2003 RCSBs.  He has not satisfactorily explained his 7-year delay, from the date of his promotion to captain, in fulfilling his military education requirement prior to the 2002 and 2003 RCSBs.  

4.  Based on the fact that the applicant had not completed his military education by the convening dates of the 2002 and 2003 promotion boards, he was not qualified for retention.  Whether the applicant was a member of the ARNG or the Reserve, the requirement for completing all required military education is a long-standing requirement for promotion to the next higher grade.  Only AMEDD officers are not required to complete the military education requirement for promotion to major through colonel.  

5.  The general requirements and workings of the system are widely known and specific details such as RCSB dates, promotion zones, and required qualifications are widely published in official, quasi-official and unofficial publications, and in official communications.
6.  It is also noted that the applicant is not entitled to reappointment in the Army Reserve.  In this case, pertinent laws and regulations clearly show that after a second non-selection, a captain will be transferred to the Retired Reserve if they are eligible and request such transfer or discharge.

7.  It is further noted that the applicant must apply to HQDA (SGPE-PD), 1900 Half Street, SW, Washington, DC  20323 for processing of applications for appointment in the Army Nurse Corps.  

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  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.




      _______ _   _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)                                         AR20080011614



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ABCMR Record of Proceedings (cont)                                         AR20080011614


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