IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20080018300 


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 date of rank (DOR) to captain (CPT) be adjusted to 20 January 2006.

2.  The applicant states, in effect, that section 512 of the National Defense Authorization Act (NDAA) for Fiscal year (FY) 2002, states, in pertinent part, that "The Secretary of the Army may waive the applicability of subsection (a) to any officer whose original appointment in the Army as a Reserve officer is through the Army Officer Candidate School program."  He states that he believes that upon release of the FY 2005 CPT Army Promotion List board, he was eligible to be promoted to CPT based on this section of the NDAA.

3.  The applicant provides the following documents in support of his application:  self-authored memorandum, dated 29 September 2005; U.S. Army Human Resources Command, St. Louis (HRC-STL), Missouri, Orders B-02-601051, dated 2 February 2006; HRC-STL Orders B-02-601051R, dated 2 February 2006; HRC-STL Orders B-04-702742, dated 18 April 2007; Alabama Officer Candidate School Diploma, dated 16 July 2000; DA Form 3575 (Certificate of Acknowledgement and Understanding of Service Requirements for Individuals Applying for Appointment in the U.S. Army Reserve (USAR)); National Guard Bureau (NGB) Special Orders Number 121 AR, dated 7 August 2000; DA Form 4037 (Officer Record Brief); and ARPC Form 249-E (Chronological Statement of Retirement Points).


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he served on active duty in an enlisted status in the U.S. Marine Corps for 9 years, 2 months, and 18 days from 14 October 1987 through 1 January 1997 and that he held the rank of sergeant on the date of his discharge on 1 January 1997.

2.  On 24 February 1997, the applicant entered the Army National Guard (ARNG) in an enlisted status and served until being honorably discharged on 15 July 2000 for the purpose of accepting a commission.

3.  On 16 July 2000, the applicant was commissioned as a second lieutenant (2LT) in the USAR.

4.  NGB Special Orders Number 121 AR, dated 7 August 2000, granted the applicant Federal recognition as a 2LT in the Alabama ARNG effective 16 July 2000.

5.  On 16 July 2002, the applicant was promoted to first lieutenant (1LT).  Based on his date of promotion, and 5 years of time in grade, his promotion eligibility (PED) date to CPT was established as 15 July 2007.

6.  On or about 22 May 2004, the applicant transferred to the USAR.

7.  While serving as a USAR Active Guard Reserve (AGR) officer, the applicant was considered and selected for promotion to CPT by the 2005 Reserve Component Selection Board (RCSB) which was approved on 20 January 2006.

8.  An HRC-STL memorandum, dated 24 October 2005, shows the applicant was granted a waiver of the statutory civilian education requirement.  The waiver stipulated that it was granted for promotion consideration only and that the applicant must complete the required education in order to be promoted.  The waiver expired on 24 October 2007.

9.  HRC-STL Orders B-02-601051, dated 2 February 2006, promoted the applicant to CPT with an effective date and DOR of 20 January 2006.  These orders were revoked by HRC-STL Orders B-02-601051R, dated 2 February 2006.


10.  HRC-STL Orders B-04-702742, dated 18 April 2007, promoted the applicant to CPT with an effective date and DOR of 31 March 2007.

11.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, Reserve Components, HRC-STL.  This official stated that based on the applicant's DOR to 1LT of 16 July 2002, his PED to CPT was established as 15 July 2007 based on the 5-year time in grade requirement.  He further stated the applicant was considered and selected by the 2005 RCSB while serving as an AGR officer with a civilian education waiver.  This waiver was granted under the authority established in section 12205 of Title 10, U.S. Code, and section 512 of the NDAA for FY 2002.  This official further stated that the applicant's waiver was granted for promotion consideration only and stipulated that the applicant was required to complete the civilian education requirement not later than 24 October 2007 in order to be promoted.  The applicant completed his Bachelor of Science (BS) degree in management at the University of Phoenix on 31 March 2007 and as a result was promoted on that date, which is the earliest date he could have been promoted under the governing law and regulation.

12.  On 17 March 2009, the applicant was provided a copy of the HRC-STL advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.

13.  The applicant provides a copy of his BS degree in management that he completed on 31 March 2007.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers other than commissioned warrant officers of the ARNG and USAR.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (Time in grade requirements commissioned officers, other than commissioned warrant officers), provides, in pertinent part, that the minimum time in grade as a 1LT for promotion to CPT is 2 years and the maximum time in grade is 5 years.

15.  Paragraph 2-9 (Civilian education requirements) of Army Regulation 135-155 states, in pertinent part, that no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education.


16.  Paragraph 4-21 of the same regulation provides guidance on promotion effective dates.  It states, in pertinent part, that an officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to CPT on 20 January 2006, the original date he was considered and selected by the 2005 RCSB, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, a member may not be promoted until the date all qualifications have been met and the civilian education requirement for promotion to CPT is completion of a baccalaureate degree.

3.  The evidence of record confirms that although the applicant was granted a civilian education waiver in order to be considered for promotion to CPT, this waiver was for consideration only.  The regulatory requirement that he complete his baccalaureate degree prior to being promoted to CPT was not waived and he was promoted to CPT on 31 March 2007, which is the date he satisfied the civilian education requirement for promotion.  As a result, given the applicant did not meet the civilian education requirement prior to 31 March 2007, which is the date he was promoted, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20080018300



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ABCMR Record of Proceedings (cont)                                         AR20080018300



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