IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080017581 


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, approval of his military education waiver and promotion to major (MAJ). 

2.  The applicant states that he met the requirements for requesting an education waiver and submitted the request for a military education waiver to his branch manager prior to the Fiscal Year 2008 (FY08) Reserve Components Selection Board (RCSB).  He adds that he believes if his education waiver had been approved he would have been selected for promotion to MAJ.

3.  The applicant provides a copy of an email, dated 17 February 2008, to his branch manager; a copy of a memorandum, dated 17 February 2008 to the President of the FY08 RCSB; and a copy of an incomplete DA Form 67-9 (Officer Evaluation Report (OER)), for the period 14 September 2006 through 17 June 2007 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted and commissioned officer service in the U.S. Navy and the U.S. Navy Reserve, the applicant's records show he was appointed as a captain (CPT) in the U.S. Army Reserve (USAR) and executed an oath of office on 4 July 2006.  He was subsequently assigned to Headquarters, 8th Brigade, 100th Division (Institutional Training), Milwaukee, WI. 

2.  On 17 April 2007, the applicant was reassigned from Headquarters, 8th Brigade, 100th Division (Institutional Training), Milwaukee to the 391st Military Police Battalion, Columbus, OH. 

3.  On 8 June 2007, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Kuwait/Iraq from 30 August 2007 to 24 May 2008.  He was honorably released from active duty to the control of his USAR unit on 11 July 2008.

4.  On 3 July 2007, by letter, the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, notified the applicant that his records were considered by the FY07 RCSB that convened on 12 March 2007; however, he was not selected for promotion to MAJ.  The letter also notified him that the records reviewed by the RCSB did not indicate he had completed the required military education by the date the board convened and that he should review the mandatory education requirements for promotion as specified in Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers), paragraph 2-5 and Table 2-3.

5.  On 30 November 2007, USAHRC-St. Louis issued Military Personnel (MILPER) Message 07-336 announcing that a mandatory board would convene on 10 March 2008 to consider RC CPTs for promotion to MAJ.  The MILPER message specifically stated: 

"Army Regulation 135-155, paragraph 2-8 and Table 2-2 lists the military education requirements for promotion selection.  Military education and civilian education requirements must be completed before the board convenes.  Evidence that an officer completed the required military and civilian education must be in the officer's board's file.  For this board, the military education requirement for a CPT is any officer advanced course (AOC).  Evidence of completion is the academic evaluation reports (AER) or the DA Form 1059.  Officers not educationally qualified will not be selected for promotion.  In accordance with the Director of Military Personnel Management policy memorandum, dated 31 August 2006, Subject:  Reserve Component Promotion Board Military Education Waiver Guidance, there will be no military education waivers for the "Below the Zone" officers and "Above the Zone" officers may request a military education waiver.  In order to be eligible for the waiver, the officer must have completed at a minimum the non-resident portion of the course and be scheduled for the resident phase."



6.  On 28 January 2008, by email, the applicant's branch manager notified the applicant that his records would be considered by the March 2008 RCSB and suggested that he (the applicant) review his records.  He was further informed that his records showed he had not completed the Captains Career Course and that if he had completed it, he should provide a copy of the DA Form 1059 (Service School Academic Service Report).  However, if he had not been enrolled in this course, he should notify his branch manager so that appropriate action may be taken.  It is unclear if the applicant responded to this email.

7.  On 17 February 2008, by memorandum addressed to the President of the FY08 RCSB, the applicant requested a waiver of the resident phases of the Engineer Captain Career Course and indicated that he completed the following distant learning phases:  common core on 24 December 2008, Phase II on
18 July 2008, and Phase IV on 16 February 2008.  He further indicated that he was scheduled to attend Phases III and V of the resident course upon returning from mobilization in June 2008 and July 2008, respectively.

8.  There is no indication that the applicant's request was received by the appropriate office at USAHRC-St. Louis.

9.  On 1 July 2008, the results of the RC FY08 selection board results were released.  The applicant was not selected for promotion to MAJ.

10.  On 25 July 2008, the applicant completed the RC Engineer Captain Career Course at the U.S. Army Engineer School, Fort Leonard Wood, MO. 

11.  In the processing of this case, on 5 March 2009, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, USAHRC-St. Louis.  The official recommended the applicant be granted a military education waiver, and if approved, and if the OER ending on 17 June 2007 is profiled, the applicant's promotion file be considered by a Special Selection Board (SSB) under the FY08 criteria based on the following:

	a.  a review of the database reflects that the applicant was considered for promotion to MAJ by the FY08 RCSB; however, he was not selected.  The reason for his non-selection is that he did not complete the education requirements prior to the convening date of the selection board.  In addition, the applicant's OER ending on 17 June 2007 is incomplete, un-profiled, and continues to be un-profiled as of the date of this review.  Un-profiled OERs are not seen by the selection board; 


	b.  the military education requirement for CPTs to MAJs is completion of the officer advanced course or equivalent.  The applicant's board consideration file contained three certificates of training reflecting completion of Phase II of the Engineer Captain Career Course on 17 February 2008, the Captain Career Common Core Course (C5) on 17 February 2008, and Phase IV of the RC Engineer Captain Career Course on 16 February 2008.  These three courses are all distant learning courses and are considered non-resident.  No additional information was seen regarding the two resident courses; therefore, the education requirement was not met, and the applicant was not considered for promotion;

	c.  the zone of consideration message outlines the procedures and submission guidelines for applying for a military education waiver.  The applicant furnishes a copy of his submission, but it is not in compliance with the guidelines established nor was there a record of it being received in the Office of Promotions at USAHRC-St. Louis to process.  Requests for waivers are required to be sent to the Office of Promotions, not to the President of the Board;

	d.  on 31 August 2006, the Deputy Chief of Staff, G-1, issued guidance that stated in order to be eligible for a military education waiver, a CPT being considered for MAJ must have completed, at a minimum, the non-resident portion of the course and be scheduled for the resident phase.  Since there are no requests for a waiver received by USAHRC-St. Louis promotions at the time, there is no indication that the applicant had a valid reservation for the resident phase or phases; and

	e.  the applicant's official military personnel file reflects documentation that shows he completed the Engineer Captain Career Course on 1 August 2008.  Since the completion date is after the convening date of the FY08 RCSB, a waiver may not be granted by the USAHRC-St. Louis promotion office.  

12.  On 6 March 2009, the applicant was provided with a copy of the advisory opinion for information and to provide him the opportunity to submit comments or a rebuttal.  The applicant has not responded to the advisory opinion.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion to major requires completion of 7 years time in the lower grade and completion of an officer advance course (OAC) no later than the day before the selection board convening date.  



14.  Army Regulation 135-155 also specifies that promotion consideration or reconsideration by an 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, 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 also 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.

15.  Army Regulation 135-155 further specifies that 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.

16.  The regulation also specifies that 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 Army Board for Correction of Military Records (ABCMR) has the authority to grant a waiver for the military education for a past year criteria.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that had his military education waiver been approved, he would have been promoted to MAJ.

2.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  In that regard, the applicant knew or should have known that completion of the advanced officer course has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  

3.  Nevertheless, the applicant in this case exercised reasonable diligence in that he completed Phase II of the Engineer Captain Career Course on 17 February 2008, the Captain Career Common Core Course (C5) on 17 February 2008, and Phase IV 

of the RC Engineer Captain Career Course on 16 February 2008.  Additionally, he was deployed in Kuwait/Iraq from 30 August 2007 to 24 May 2008 and could not have completed the resident phase of the required military education (advanced officer course) prior to the date the FY08 RCSB convened (10 March 2008).  

4.  Additionally, the applicant also submitted a request for a military education waiver on 17 February 2008, albeit to the wrong office, and upon his return from Kuwait/Iraq, he was enrolled in and successfully completed the resident phase of Engineers Captain Career Course on 25 July 2008.  It appears that due to his mobilization, he did not purposefully neglect to complete the required military education for promotion consideration to MAJ.

5.  Therefore, as a matter of justice and based on the expression of support for favorable consideration given by the Promotions Branch, USAHRC-St. Louis, the applicant should be granted a waiver of military education and promotion consideration to MAJ by an SSB under the 2008 year criteria.  Furthermore, it is recommended that the applicant address the issue of his un-profiled OER prior to the convening of the SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  granting the applicant a military education waiver effective prior to the convening date of the 2008 Major Reserve Components Selection Board;

	b.  that following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration to MAJ under the 2008 year criteria;

	c.  that, if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the 2008 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion;  and

	d.  that if not selected under the 2008 year criteria, the applicant be so notified.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the applicant's promotion to MAJ.



      __________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)                                         AR20080017581



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017581



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1