IN THE CASE OF:	  

		BOARD DATE:	       10 MARCH 2009

		DOCKET NUMBER:  AR20080015632 


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 that his date of rank to captain be adjusted from 1 July 2003 to October 2002 in order to reflect the correct time in grade for the promotion cycle with his commissioning year group of 1999.  He also requests that his file be submitted to a Special Selection Board for consideration in the Primary Zone (PZ) for major under the 2008 criteria.

2.  The applicant states that he graduated from Officer Candidate School (OCS) on 29 April 1999 and enrolled in the Degree Completion Program (DCP) in January 2002.  He completed his degree in July 2003.  He states he was never made aware that he needed to request an education waiver in order to be promoted to captain on schedule, while enrolled in the DCP.  He notes the requirement was never articulated to him by his branch or any other organization or person until after he graduated from the University of South Carolina at Aiken.  He states it was not until he contacted his branch after graduation that he was told he should have filed a waiver sometime in October 2002 and because he did not, he could only have his date of rank changed to 1 July 2003 and there was nothing else that could be done.

3.  The applicant states he was assured that the delay in his promotion to captain would not negatively affect his career.  However, he learned in June 2008 that he had been moved from cohort year group 1999 to cohort year group 2000 based on his date of rank to captain.  The applicant states until that time he had always 



been included in e-mail traffic targeted to the 1999 cohort year group, including 
promotion consideration for below the zone (BZ) promotion to major during the April 2007 promotion board and in the PZ for the April 2008 promotion board.

4.  The applicant maintains he should have received guidance from the Human Resources Command (HRC) that an education waiver was required to ensure he was promoted on time.

5.  The applicant provides copies of his Officer Record Brief showing the change in cohort year group from 1999 in December 2007 to 2000 in August 2008.  He also submits four statements supporting his request to have his date of rank changed and to be reconsidered for promotion to major.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially entered active duty as an enlisted Soldier in August 1996 and attained the rank of sergeant (E-5) in September 1998.  The applicant subsequently completed OCS and was commissioned as a United States Army Reserve (USAR) officer, in the rank of second lieutenant, on 29 April 1999.  He successfully completed the Signal Officer Basic Course in 1999 and was then assigned to a signal battalion in Germany.  

2.  Based on the applicant’s date of rank as a second lieutenant his cohort year group was designated as 1999.  

3.  On 29 October 2000 the applicant was promoted to the rank of first lieutenant and in January 2001 he completed his tour of duty in Germany and returned to the United States.

4.  On 8 February 2001 the FY (Fiscal Year) 02 captain, Army Competitive Category (ACC), promotion board zones of consideration were announced.  That message indicated a selection board would be convened on or about 
6 November 2001 to consider first lieutenants with an active duty date of rank (ADOR) between 1 April 2000 and 31 March 2001 (PZ) and 31 March 2000 or earlier above the zone (AZ) for promotion to captain.  The applicant would have been in the PZ for this selection board.  Paragraph 3 of that message noted that Title 10, U.S. Code, section 12205 required an officer to have a baccalaureate degree for promotion to captain and the HRC would not publish orders for promotion to captain for any officer who did not meet that requirement. 



5.  In October 2001 the applicant commenced the DCP at the University of South Carolina at Aiken to obtain his baccalaureate degree.  According to his Civilian Institution Academic Evaluation Report, he completed his degree on 30 June 2003.

6.  While participating in the DCP the applicant was considered and selected for promotion to captain by the FY02 selection board.  If the applicant had already completed his degree requirements he would have been promoted on 1 October 2002, his Promotion Eligibility Date (PED).  However, because he did not have his degree and did not have an approved education waiver in place he was promoted effective and with a date of rank of 1 July 2003.

7.  Following promotion to captain the applicant served tours of duty at Fort Campbell, Kentucky and in Iraq.  As of January 2007 he was assigned to the Army Sustainment Command at Rock Island, Illinois.  

8.  On 17 January 2007, the zones of consideration for the FY07 major ACC promotion board were announced.  Initially the PZ included captains with an ADOR between 1 April 2001 and 28 February 2003 and the BZ included captains with a DOR between 1 March 2003 and 16 March 2004.  

9.  Two days later, on 19 January 2007, those zones of consideration were changed to 1 April 2001 through 31 March 2002 for the PZ and 1 April 2002 through 28 February 2003 for BZ.  

10.  On 16 January 2008 the zones of consideration for promotion to major were announced for the FY08 major ACC selection board.  The PZ was announced as 1 April 2002 through 28 February 2003 and the BZ was announced as 1 March 2003 through 16 March 2004.  The zones of consideration for the FY09 major ACC promotion board were announced on 7 November 2008 and included captains with an ADOR between 1 March 2003 and 16 March 2004 as the PZ.  The FY09 selection board was scheduled to convene on 21 January 2009.

11.  The Officer Record Brief, provided by the applicant, notes that as of 
28 December 2007 his cohort year group was 1999.  On the Officer Record Brief dated 15 August 2008 the cohort year group is reflected as 2000.

12.  The statements submitted in support of the applicant’s request all acknowledge that while the officer does maintain responsibility for degree completion requirements the lack of coordination regarding the ability to request 


an education waiver was detrimental to the applicant.  Each of the four authors of the supporting statements all noted they had served with the applicant and he was more than ready for promotion to major.  One of the statements of support was authored by the then chief of the Signal Branch at the HRC.  That officer specifically stated the lack of coordination or contact by the applicant’s Signal Branch Career Manager to ensure the applicant understood the requirement to apply for an education waiver did not take into account the officer’s best interest.

13.  In the processing of this case an advisory opinion was obtained from the Deputy Chief for promotions at the HRC.  The opinion noted the applicant’s original PED for captain was 1 October 2002.  However, because he did not possess the education requirement for promotion, and because he did not request a waiver of the requirement, he was not promoted until 1 July 2003 when he met the education criteria.  It was also noted that officers commissioned through OCS are briefed on the requirement to complete their degree before being eligible for promotion to captain but they are not notified individually to submit a waiver for the education requirement prior to the captain’s board.  The opinion states that waiver application guidance was posted on the HRC website, and that waivers are managed by all career branches.  It concluded that Soldiers should be pro-active and apply due diligence to matters concerning their careers and that an officer’s failure to request an exception to policy does not warrant a change in promotion.

14.  The applicant was provided a copy of the advisory opinion and given an opportunity to respond.  In his response, the applicant argued that OCS graduates are not briefed on eligibility requirements or the opportunity to file for an education waiver for promotion while in the DCP.  He stated that he did not receive notification about an education waiver until after his degree was completed and then was advised by his branch manager that it was too late to apply for one.  He notes that without a briefing as to the existence of a waiver or where to find information about a waiver it would not be apparent to search the HRC website for such information.

15.  Title 10, U.S. Code, section 12205 requires commissioned officers to obtain a baccalaureate degree prior to promotion to captain.  It also provides that the Secretary of the Army may waive this requirement for any officer whose original appointment in the Army as a USAR officer was through the Army OCS program.  Any such waiver shall be made on a case-by-case basis, considering the individual circumstances of the officer involved, and may continue in effect for no more than two years after the waiver is granted.  The Secretary concerned may provide for such a waiver to be effective before the date of the waiver, as appropriate in an individual case.

16.  A review of the HRC website confirmed there is a link to information concerning baccalaureate degree education requirements for officers commissioned through the Army OCS and provides instructions for requesting a waiver of that education requirement.  The link is accessed via the Officer/
Warrant Officer Selections and Promotions Home Page as the last link under the “information papers” heading.

17.  Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management), paragraph 3-5 notes that prior to promotion to captain, officers must complete their baccalaureate degree.  The pamphlet does not, however, indicate that waivers are possible for officers commissioned through OCS.

18.  Department of the Army Pamphlet 600-3 also notes that officer strength management, professional development, and evaluation of individual contributions occur in a series of centralized Department of the Army and Army HRC selection boards for retention, career status, schooling, promotion, field grade command designation, and selective early retirement.  These boards employ evaluation reports, competency guidance, and strength requirements to advance individuals to the next stage of professional development.  Officers generally flow through the centralized selection subsystem by groupings based on date of rank (DOR).  Company and field grade officer groupings are termed cohort year groups. WO groupings are called the inclusive zone of eligibility.  

DISCUSSION AND CONCLUSIONS:

1.  Information regarding the requirement to have a baccalaureate degree was readily available to the applicant from a variety of sources, including the Department of the Army Pamphlet which outlines officer professional development and career management, and on messages which announced promotion zones to captain.  However, information regarding the ability for OCS officers to request a waiver of that requirement is not discernable from those same sources.  The applicant did not argue that he was unaware that he needed to have his degree to be promoted to captain but rather argued that he was unaware of the ability to request a waiver of that requirement.

2.  While the advisory opinion notes that officers commissioned through OCS are briefed on the requirement to complete their degrees before being eligible for promotion it does not indicate they were further briefed about the opportunity to request a waiver.  Rather, the opinion suggests that these young officers should be “pro-active and apply due diligence to matters concerning their careers.”  

3.  In the applicant’s case he successfully completed OCS, the Signal Officer Basic Course, a tour of duty in Germany, and then commenced completion of his degree via the DCP.  These actions all suggest the applicant was being pro-active and applying due diligence to his career.  Clearly had he been aware that he could apply for an education waiver he would have done so.  The fact that he was unaware that he could should not now adversely affect his career.  This is particularly true in view of the fact that the statute permits the Secretary concerned to provide for such a waiver to be effective before the date of the waiver, as appropriate in an individual’s case.  

4.  Navigating the complexities of the Army’s personnel and promotion system can be difficult at best, particularly for young officers.  The advisory opinion indicates that waivers were managed by career branches and yet the applicant’s career branch failed to provide any assistance or mentorship to the applicant which could have assisted in him navigating the nuances of the promotion system, including the possibility of requesting the waiver after the fact as provided for in the statute.

5.  In this particular case it appears the applicant did all that the Army asked of him and that it was a failure on the part the Army’s personnel management system which contributed to the applicant’s situation.  While there is no error in the applicant’s promotion to captain, in this case it would be appropriate and in the interest of equity and compassion to grant the relief requested by correcting his records to show he was granted an education waiver under the provisions of Title 10, U.S. Code, section 12205 which would have permitted him to be promoted to captain on his PED of 1 October 2002. 

6.  As a result of the waiver and subsequent promotion his cohort year group would revert to 1999 and he would be eligible for consideration under the FY08 major promotion selection criteria.

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:

   a.  showing he was granted an education waiver for promotion to captain, permitting him to be promoted effective 1 October 2002;
   
   b.  promoting him to the rank of captain, effective and with a date of rank of 
1 October 2002, with appropriate back pay and allowances; and

   c.  following administrative implementation of the foregoing, his records be submitted to a duly constituted Standby Selection Board for promotion consideration to major under the 2008 criteria.



      ______XXX_________________
               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)                                         AR20080015632



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ABCMR Record of Proceedings (cont)                                         AR20080015632



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