IN THE CASE OF:	  

		BOARD DATE:	  	   5 May 2009

		DOCKET NUMBER:  AR20090000082 


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 correction of his date of rank (DOR) to captain (CPT) from 14 February 2005 to 14 February 2004.

2.  The applicant states that he met the time in grade requirements as a first lieutenant (1LT) for consideration for promotion to CPT by the Fiscal Year 2003 (FY03) Reserve Components Selection Board (RCSB) which convened on 3 November 2003 and was considered for promotion but not selected because he had not completed the required civilian education.  However, the 2002 National Defense Authorization Act (NDAA) allowed certain commissioned officers who were appointed through Officer Candidate School (OCS), and who were unable to complete the required civilian education due to operational requirements, up to two years after their promotion date to complete their civilian education.

3.  The applicant provides an exchange of emails, dated on miscellaneous dates, with various officials at the U.S. Army Human Resources Command (USAHRC), St. Louis, MO; a copy of a memorandum, dated 29 September 2004, requesting a waiver of statutory education requirements for promotion to CPT; a copy of Military Personnel (MILPER) Message Number 03-231, dated 4 August 2003; a copy of a certificate, dated 19 December 2005, showing completion of a Bachelor of Arts degree; and a copy of his academic college transcripts in support of his request.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service in the Regular Army and the Illinois Army National Guard (ILARNG), the applicant's records show he was appointed as a second lieutenant in the Transportation Corps (TC) of the ILARNG and executed an oath of office on 14 April 1998.  He was subsequently assigned to the 1244th Transportation Company, ILARNG, North Riverside, IL.

3.  On 14 July 1998, the applicant was discharged from the ILARNG and transferred to the U.S. Army Reserve (USAR).  He was assigned to the 244th Aviation Brigade, Fort Sheridan, IL. 

4.  On 13 April 2000, the applicant was promoted to 1LT in the USAR.

5.  On 18 January 2002, the applicant was ordered to active duty as a member of his USAR unit in support of Operation Enduring Freedom and subsequently served in Afghanistan from 3 April 2002 to 27 November 2002.  He was honorably released from active duty to the control of his USAR unit on 2 January 2003.

6.  On 29 July 2003, by email, a USAHRC-St. Louis official notified/reminded the applicant that he was not educationally qualified for promotion to CPT by the upcoming FY03 RCSB unless he submitted documentation that showed he had completed a bachelor's degree. 

7.  On 5 September 2003, by email, a USAHRC-St. Louis official notified the applicant that his records would be considered by the 3 November 2003 CPT promotion board and that if his promotion file was identified as "non-educationally qualified" he should submit proof of military and/or civilian education completion.  

8.  On 9 September 2003, by email, the applicant notified USAHRC-St. Louis officials that since he was an OCS graduate, he was authorized a waiver of civilian education requirements.

9.  On 9 September 2003, by email, the Chief of Special Actions Branch, Department of the Army (DA) Promotions, USAHRC-St. Louis, notified the applicant that the civilian education waiver for OCS graduates was for officers who completed the Regular Army OCS and that officers who completed OCS through the ARNG OCS were not qualified.  The Branch Chief added that the applicant's records did not reflect which OCS he had completed; however, he verified with the ARNG liaison office that he (the applicant) had completed the ARNG OCS.  

10.  On 8 April 2004, by letter, USAHRC-St. Louis notified the applicant that his records were considered by the FY03 RCSB that convened on 3 November 2003; however, he was not selected for promotion to CPT.  The letter also notified him that the records reviewed by the RCSB did not indicate he had completed the required civilian and/or 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.

11.  On 29 September 2004, by memorandum, the applicant submitted a request for waiver of statutory education requirements for promotion to CPT.  He indicated that he had completed the required courses to be awarded a Bachelor of Arts degree through Governors State University, IL, with the exception of two proficiency tests and that he anticipated completion of all requirements by December 2004.  However, it is unclear if this memorandum was submitted to and/or received by the appropriate office at USAHRC-St. Louis. 

12.  On 1 March 2005, by memorandum, USAHRC-St. Louis, notified the applicant that he was considered by the FY04 RCSB that convened on
3 November 2004 and that he was selected for promotion to CPT with an effective date and DOR of 14 February 2005.

13.  On 19 December 2005, the applicant was awarded a Bachelor of Arts degree.

14.  In the processing of this case, on 6 April 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 civilian education waiver, and if approved, the applicant's promotion file 
be considered by a Special Selection Board (SSB) under the FY03 criteria.  The official also stated that when initially considered by the FY03 RCSB, the applicant's file did not include the civilian education requirement of completion of a baccalaureate degree or documentation that he was granted a waiver for the education.  Therefore, he was not selected for promotion to CPT.  Additionally, the applicant submitted a copy of the MILPER Message that indicates the 2002 NDAA provided waivers for graduates of OCS for the education.  The Assistant Secretary of the Army (Manpower and Reserve Affairs) initially issued the waivers for officers who completed Regular Army OCS.  It was later amended to include ARNG officers.  The official also added that the applicant provided documentation verifying he (the applicant) inquired about and requested a waiver.  No documentation is available to show that the request was previously received by the Promotions Office at USAHRC-St. Louis prior to his application to the ABCMR; therefore, a waiver was not granted.

15.  On 17 April 2009, the applicant was provided with a copy of the advisory opinion for information and possible comments.  On 19 April 2009, the applicant concurred with the advisory opinion rendered without comments.

16.  Army Regulation 135-155 specifies that for a 1LT to be eligible for promotion to CPT, the officer must be awarded a baccalaureate degree from an accredited educational institution prior to the convening date of the promotion board.  This policy has been in effect since 30 September 1995.

17.  The FY02 NDAA, Section 512, specifies that the Secretary of the Army (SA) may, on a case-by-case basis, waive the baccalaureate degree requirement of Title 10, U.S. Code, section 12205(a) for any officer who was commissioned through the Army OCS.  The waiver may be in effect for no more than 2 years after the waiver is granted.  Upon completion of the baccalaureate degree, officers must provide documented proof to their branch assignment officer.  Documented proof of a baccalaureate degree must be an official transcript.  Officers who have not earned a baccalaureate degree at the end of the period for which the waiver was granted are subject to discharge.  The new waiver authority has no expiration date and is now codified as Title 10, U.S. Code, section 12205(d).  

18.  Army Regulation 135-155 also specifies that promotion 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.  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 civilian and/or military schooling.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to CPT should be adjusted from
14 February 2005 to 14 February 2004.

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 a bachelor degree 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, military and civilian education, and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  

3.  Nevertheless, it is noted that the applicant was working on completing a baccalaureate degree when he was mobilized in January 2002 and exercised reasonable diligence in that he requested information on how to obtain a civilian education waiver.  It appears he was been erroneously advised that there were no civilian education waivers for ARNG OCS graduates.  Waivers were granted on a case-by-case basis, considering the individual circumstances of the officer involved.  

4.  As a matter of justice, based on the expression of support for favorable consideration given by the Promotions Branch, USAHRC - St Louis, and since the applicant graduated from an ARNG OCS program and was entitled to request and the SA was authorized to grant a waiver of the civilian education requirement, the applicant should be granted a waiver of civilian education and promotion consideration to CPT by an SSB under the 2003 year criteria.

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 civilian education waiver effective for the convening date of the 2003 CPT RCSB;

	b.  that, following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion reconsideration to CPT under the 2003 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 2003 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion; and

	d.  that if not selected under the 2003 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 correcting the applicant's date of rank from 14 February 2005 to 14 February 2004.



      __________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)                                         AR20090000082



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ABCMR Record of Proceedings (cont)                                         AR20090000082


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