IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080018006 


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 promotion to the rank of Captain with a date of rank on or before 27 January 2008.

2.  The applicant states he was commissioned after graduating from Lehigh University and he left active duty after being promoted to the rank of First Lieutenant with a date of rank of 17 July 2004.  In January 2008 he was recalled to active duty in support of Operation Iraqi Freedom.  The applicant states that he was denied promotion in November 2006 and November 2007 because his civilian education was not on file.

3.  The applicant states that a January 2005 Officer Record Brief indicated his degree was on file.  He notes he was denied promotion reconsideration in September 2008 “due to their records not indicating my civilian education.”

4.  The applicant provides a copy of his 31 January 2005 Officer Record Brief which shows a baccalaureate degree from Lehigh University was completed in 2002; a letter, dated 13 February 2008, from Lehigh University confirming the date his degree was awarded; a copy of an extract from his Reserve Record showing his civilian education level as a baccalaureate degree; his November 2006 nonselection for promotion to Captain which noted his records did not reflect the required civilian and/or military education by the day the board convened; and a copy of his denial for reconsideration by a Department of the Army Special Selection Board.


CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant was awarded a baccalaureate degree from Lehigh University on 2 June 2002 and he enlisted in the United States Army in July 2002 for the purpose of attending Officer Candidate School (OCS).  The applicant was commissioned as a United States Army Reserve (USAR) Second Lieutenant on 17 January 2003 following completion of OCS and immediately ordered to active duty.

2.  The applicant completed the engineer officer basic course in June 2003 and was then assigned to an engineer unit at Fort Rucker, Alabama.  He was promoted to First Lieutenant effective, and with a date of rank, of 17 June 2004.

3.  The applicant’s 31 January 2005 Officer Record Brief, which he provided with his application to this Board, shows he completed his baccalaureate degree in 2002.

4.  On 17 January 2006 the applicant was released from active duty with an honorable characterization of service and transferred to the United States Army Control Group (IRR – Individual Ready Reserve).  The authority for his discharge was recorded as paragraph 2-5 or 2-11 of Army Regulation 600-8-24.  The narrative reason for his separation was reflected as “miscellaneous/general reasons” on his 2006 separation document.

5.  Paragraph 2-5 of Army Regulation 600-8-22 (Officer Transfers and Discharges) permits qualified officers to request voluntary release from active duty for personal reason while paragraph 2-11 permits officers to request release from active duty to provide more valuable service in a civilian capacity to the nations (i.e. appointed to a Federal Court, elected to public office, etc.).

6.  In February 2007 the applicant was informed that he had been considered but not selected for promotion to the rank of Captain by the Army Reserve Components Mandatory Selection Board convened on 7 November 2006.  The letter noted that records of the Department of the Army indicated he had not completed the required civilian and/or military education by the day the board convened.  It stated that if the applicant had completed the education requirements not later than the day before the selection board convened he could request reconsideration by applying through command channels.




7.  The applicant’s file does not contain any documents indicating he was denied promotion again by the November 2007 selection board for failing to meet education requirements.

8.  On 18 December 2007 orders were issued by the United States Army Human Resources Command in St. Louis, Missouri ordering the applicant to active duty for mobilization processing on 27 January 2008 at Fort McCoy, Wisconsin.  In June 2008 he was deployed to Kuwait in support of Operation Iraqi Freedom.

9.  In August 2008 the applicant was informed that his request for promotion reconsideration had been denied.  The letter informed the applicant that a special review team had considered his request and reviewed his record and determined that while his record did contain material error when originally seen by the mandatory board it was further determined the applicant showed a lack of due diligence by not reviewing his file prior to consideration by the board and submitting the required education document.  Paragraph 3-19f(2) of Army Regulation 135-155, was cited as the basis for denial of promotion reconsideration.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 3-19f(2) states it will normally not determine that a material error existed if the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the Official Military Personnel File (OMPF) or if the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that they had.

11.  The copy of the applicant’s education transcript, contained in his OMPF, and the letter from Lehigh University confirming the applicant’s degree, which the applicant provided, are both dated 13 February 2008.

DISCUSSION AND CONCLUSIONS:

1.  The evidence does confirm the applicant met the education requirements for promotion to the rank of Captain prior to his first consideration in November 2006.  However, the evidence also shows the applicant was aware, or should have been aware, as early as February 2007 that his records failed to show he met the education requirements for promotion, in spite of the entry on his 2005 Officer Record Brief.  



2.  Based on the evidence available, it appears, the applicant did nothing to rectify his situation until he was called to active duty in January 2008 and promotion to Captain became advantageous to him.  The 13 February 2008 transcript now contained in the applicant’s OMPF and the letter from Lehigh University supports this conclusion.

3.  The applicant’s file apparently contained a material error when he was first considered and not selected for promotion to Captain in November 2006.  The fact that he did nothing, when given the opportunity to correct that material error upon notification in February 2007, suggests that had he not been ordered to active duty in 2008 he would have likely continued to ignore his personal responsibility for ensuring his records contained the required documentation to be fully considered by a promotion board.  The applicant’s apathy in responding to the February 2007 promotion nonselection information should not now be excused merely because he has been ordered to active duty.  In this instance the applicant bears responsibility for his nonselection to Captain by the 2006 and 2007 selection boards.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xxx____  ____xxx____  ___xxx_____  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.




      _______ _   _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)                                         AR20080018006



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ABCMR Record of Proceedings (cont)                                         AR20080018006



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