IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090000512 


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 retired grade be changed from captain/0-3 (CPT/0-3) to major/0-4 (MAJ/0-4); that his MAJ/0-4 date of rank (DOR) be established as 14 August 1997; and that his resignation letter be expunged from his record.  

2.  The applicant states, in effect, that he resigned his commission because his State Headquarters and chain of command were wrong in requiring him to have a Bachelor's degree in order to be promoted to MAJ/0-4.  He claims he resigned his commission so he would not be a non-select by an Army board and have a break in service.  He states that if he had a break in service, his officer specialty schools would not transfer to his enlisted military occupational specialty (MOS).  He claims he was unaware of the eligibility for promotion letter in his file until records went on line in late 2006.  

3.  The applicant provides the following documents in support of his application:  resignation letter, dated 22 November 1996; Eligibility for Promotion Memorandum, dated 6 June 1997; page 66, National Guard Regulation (NGR) 600-100; CPT/0-3 Promotion Order, dated 19 September 1990; Second Lieutenant (2LT) appointment letter, dated 15 August 1984; third-party statement (First Sergeant); Officer Evaluation Reports (OERs), dated 1994 and 1995; and Army National Guard (ARNG) enlistment orders, dated 21 January 1997.


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.  The applicant's record shows he served in the ARNG in an enlisted status from 19 February 1981 through 11 August 1984, and that on 12 August 1984, he was appointed a 2LT and granted Federal Recognition in that grade in the Wisconsin ARNG (WIARNG).

3.  On 11 August 1987, he was promoted to and granted Federal Recognition to first lieutenant (1LT) and on 16 August 1990, he was promoted to and granted Federal Recognition as a CPT. 

4.  On 22 November 1996, the applicant requested resignation and on 
11 December 1996, his resignation was approved.   

5.  On 4 December 1996, the applicant resigned from the WIARNG in order to enlist in the WIARNG.

6.  On 5 December 1996, the applicant enlisted in the WIARNG, in the rank of sergeant, for 6 years.  

7.  The applicant's record shows that on 1 April 1999, he was promoted to staff sergeant; on 1 February 2001, he was promoted to sergeant first class; and on 
1 July 2005, he was promoted to master sergeant (MSG). 

8.  On 18 August 2008, the applicant was transferred to the Retired Reserve.  

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB), which was concurred with by the WIARNG G-1.  The NGB and WIARNG recommend disapproval of the applicant's request.  

10.  The NGB opinion indicates that the applicant was initially appointed a 2LT on 12 August 1984, was promoted to 1LT on 11 August 1987, and was promoted to CPT on 16 August 1990.  He further indicates the applicant voluntarily requested resignation of his commission on 22 November 1996, and this request was approved by his commander on 11 December 1996.  
 
11.  The NGB opinion further indicates that the applicant's Federal Recognition as a CPT was withdrawn on 4 December 1996; however, his record had been submitted to and reviewed by a Reserve Component Selection Board (RCSB), which selected him for promotion subsequent to the date of resignation.  Given the applicant had resigned his commission and enlisted prior to his selection for promotion to major, this promotion was not valid.  The opinion further indicates the applicant obtained his associate's degree on 4 June 2008, and he was transferred to the Retired Reserve on 18 August 2008.  

12.  The NGB advisory opinion further indicates that the governing NGR requires all commissioned officers appointed after 30 September 1983, who did not have prior commissioned service, to have a baccalaureate degree in order to meet the civilian education prerequisites for promotion to major.  This policy is applicable to both position vacancy and mandatory promotion selection.  It further indicates that officers who held the rank of CPT and above on 1 October 1995 have no statutory requirement to have a baccalaureate degree.  The governing Army regulation also requires that effective 1 October 1995, no officer will be selected for promotion to CPT unless they hold a baccalaureate degree and that baccalaureate degrees are required for promotion to major.  

13.  On 21 July 2009, the applicant responded to the NGB advisory opinion.  In it, he indicated that while it is true he voluntarily resigned his commission before the RCSB released its results in June 1997, NGB fails to address the extreme pressure he was under from his chain of command and the State of Wisconsin Department of Military Affairs, as depicted in the OERs he submitted with his original application.  He further claims there were Soldiers who were actually removed from service because they did not meet the (not required) civilian education requirement and he did not want that to happen to him.  He also states he did not want a break in service or to attend the noncommissioned officer basic and advanced courses, which he would have had to do if he actually had a break in service.  

14.  The applicant further claims he followed the regulations and one helped him and one hurt him because it was interpreted incorrectly by his superiors.  He further indicates he included his promotion memorandum only to show what would have happened if his records were reviewed by the RCSB, which they were, so his promotion eligibility would not have to be established in the result of a positive ruling by the Board and to show the State of Wisconsin and the Army were operating under a different guidelines in regard to the civilian education requirement for promotion.  He further states that the electronic mail (e-mail) message from a sergeant major (SGM) with the WIARNG supporting the NGB advisory opinion should be disregarded since he has an adversarial relationship with the SGM.  He provides this information to explain why his request will never be supported by the WIARNG.  

15.  The applicant concludes by stating that he did what he thought was right at the time based on the information his superiors gave him at the time.  He feels the information was incorrect or based on incorrect data.  He resigned because of the comments on his OERs and the pressure the military was giving officers without civilian education.  If he had not resigned, the State would have sent his promotion packet forward, which they apparently did in error, and he would have been promoted to major.  He further states that had the State sent him the documents from the Office of Promotions, he would have torn up his resignation in June 1997, and would have been promoted.  As it turns out, the promotion documents were sent to the files in St. Louis retirement branch for officers and not put in his enlisted file at the State, only to be found by him when IPERMS became available to him in 2006.  

16.  Title 10 U.S. Code, Section 12201 (10 USC 12205) provides qualifications for appointment.  It states, in pertinent part, the Secretary concerned shall prescribe physical, mental, moral, professional, and age qualifications for the appointment of persons as Reserves of the armed forces under his jurisdiction. 

17.  10 USC 12205 provides the educational requirements for the appointment/promotion of commissioned officers.  It states, in pertinent part, that no person may be appointed to a grade above the grade of 1LT in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of lieutenant (junior grade) in the Navy Reserve, or be federally recognized in a grade above the grade of 1LT as a member of the ARNG or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  An exception that allows for the appointment to or recognition in a higher grade of any person who was appointed to, or federally recognized in, the grade of CPT or, in the case of the Navy, lieutenant before      1 October 1995.  

18.  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 Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  Chapter 2, Section II provided guidance on eligibility for consideration and general qualifications for selection for promotion.  It states, in pertinent part, that to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) during the 1 year period ending on the convening date of the promotion board.  

19.  NGR 600-100 prescribes the policies and procedures governing the appointment, assignment, and Federal Recognition of ARNG officers.  Chapter 8 contains the policy for promotion of ARNG officers and states, in pertinent part, that the promotion of officers in the ARNG is a function of the State.  Paragraph 8-7 provides promotion eligibility requirements and states, in pertinent part, that in order to qualify for promotion an officer must have completed the minimum civilian education requirements.  Chapter 9, Table 9-1 provides the regulatory civilian education requirements and states, in pertinent part, that a commissioned officer who received an initial appointment after 30 September 1983, who has no commissioned officer service before that date, must obtain a baccalaureate degree in order to qualify for promotion to the rank of major.  The statutory requirement does not require a baccalaureate degree for an officer who was in the grade of 1LT and below after 20 September 1995.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retirement grade should be changed from CPT to MAJ, and that his date of rank to MAJ be established as 22 November 1996, and his resignation letter should be expunged, was carefully considered.  

2.  The evidence of record confirms the applicant resigned his commission and entered an enlisted status proper to his promotion selection to MAJ.  Thus, he was not eligible to either be considered for or to receive the promotion to MAJ in 1997, when it was announced.  

3.  The applicant's claim that he was eligible to be promoted without a baccalaureate degree because he was promoted to CPT prior to 20 September 1995, even if valid, would not change the fact that he voluntarily resigned in order to enter an enlisted status he continued to serve in through 2008, when he was transferred to the Retired Reserve in that status.  Although the law did not require the applicant to have a baccalaureate degree to be promoted to MAJ, this did not relieve him of the requirement to be in a eligible status when he was considered for and selected for promotion to MAJ in June 1997.  Notwithstanding his assertions to the contrary and his perceptions at the time, there is no evidence suggesting he was forced to resign his commission by WIARNG officials.  The evidence of record confirms he voluntarily requested resignation in order to enter the WIARNG in an enlisted status and that his commission was resigned and his Federal Recognition as a CPT was removed on 4 December 1996, as evidenced by the NGB advisory opinion.  Therefore, there is an insufficient evidentiary basis to support retroactively granting him this promotion and/or to expunge his officer resignation at this late date.  

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.



      _______ _   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)                                         AR20090000512



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ABCMR Record of Proceedings (cont)                                         AR20090000512



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