IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080014554
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 was 41 years of age when he applied for attendance at the Officer Candidate School (OCS), and turned 42 prior to his attendance at OCS. He claims he had every expectation that he would be allowed to participate and receive a Regular Army commission if he successfully completed the course. He states he was not allowed to start the 24 August 2008 OCS class he was scheduled for due to his age.
3. The applicant provides 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 25 August 1965. It further shows that in January 2008, after serving on active duty in an enlisted status for over 16 years and attaining the rank of sergeant first class (SFC), the applicant was selected to attend OCS.
2. The applicant was scheduled to attend the OCS class beginning on 24 August 2008. Upon reporting to OCS, the applicant's age disqualification was discovered and he was not allowed to begin OCS training.
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, was honest about his age, and concluded the Army had granted him permission to begin OCS despite his age. This G-1 official stated that the applicant did everything the system asked him to do and it can only be concluded 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. This official further states 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 instead of Soldiers must complete OCS training prior to age 42. He concludes by stating that he believes the applicant should be allowed to complete OCS and be commissioned as a second lieutenant (2LT) in the Regular Army (RA) with an option to retire from the military with 20 years of active commissioned service if the applicant meets all other criteria.
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 OCS, his age disqualification was discovered prior to his entry into the course and he was not allowed to begin training, and never in fact completed the required OCS 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) AR20080014554
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