IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080014553
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 record be corrected in a manner that would lift the age barrier to his being commissioned in the United States (U.S.) Army.
2. The applicant states, in effect, that he turned 42 years of age prior to attending Officer Candidate School (OCS). He states he was 41 years of age when he was accepted into the OCS program and was given every expectation that he would be allowed to participate and receive a Regular Army (RA) commission if he successfully completed the course. He states that he started OCS on 22 June 2008 and was scheduled to graduate on 11 September 2008; however, after the 7th week of training, he was removed from the course and not allowed to finish.
3. The applicant provides a self-authored statement, travel documents, OCS records, and a Deputy Chief of Staff, G-1 Memorandum, dated 18 September 2008, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record confirms his date of birth is 22 November 1965. It further shows that in January 2008, after serving on active duty in an enlisted status for over a year and attaining the rank of sergeant (SGT), the applicant was selected to attend OCS.
2. The applicant entered OCS in June 2008, and after seven weeks was removed from his class and recycled due to a failing grade. While waiting to enter another OCS class, he was informed of his age disqualification and he was not allowed to be recycled into another OCS class.
3. 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 applied for OCS in good faith, and promptly followed the guidance provided to him as it was communicated. He states that although the applicant had a failing grade for one portion of the course, had it not been for his age, he would have been allowed to recycle into the next OCS class. He claims it can only be concluded that the applicant was a victim of the OCS selection process that did not note his age limitation until after he had exuded a significant amount of personal time, sacrifice and effort. He states 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 instead of Soldiers must complete OCS training prior to age 42. He indicates that a correction to the MILPER message was released but not soon enough to prevent the applicant from being approved for OCS. He concludes by stating that he believes the applicant should be allowed to complete OCS and the requirements for an RA commission as a second lieutenant (2LT) in the RA with an option to retire from the military with 20 years of active commissioned service if the applicant meets all other requirements.
4. 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
sixty-second birthday has been carefully considered. However, there is an insufficient evidentiary basis to support granting the requested relief.
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 sixty-second birthday.
3. The evidence shows that although the applicant was selected for and entered OCS, his age disqualification was discovered prior to his completion of the required training necessary for commissioning. Given the applicant was over
42 years of age prior to his scheduled OCS class and the age disqualification was discovered before he completed training, there does not appear to be a compelling basis, in light of the governing law, to grant equitable relief in this case.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20080014553
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