IN THE CASE OF:
BOARD DATE: 17 September 2008
DOCKET NUMBER: AR20080014032
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 records be corrected in a way that lifts 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 documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that while serving in an enlisted status in the United States Army Reserve (USAR), he was recruited and accepted for attendance to the OCS program. His military record at the time of his acceptance into the OCS program clearly identified his date of birth as
12 March 1966.
2. 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.
3. The G-1, Chief, Officer Division 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 also indicates 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.
4. This G-1 official also states that an applicant that applies at age 42 is already too old to complete OCS requirements for a RA commission. He states 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.
2. 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. In this case, the evidence of record confirms that although his record properly identified his date of birth of 12 March 1966, the applicant was recruited and accepted for attendance to the OCS program. The applicant entered the OCS program after being given the expectation that if he successfully completed the training 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 promises made to the applicant when he was recruited for the OCS program 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 11 March 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:
___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 showing the applicant was appointed a second lieutenant in the Regular Army on 11 March 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) AR20080014032
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