IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20090011113 


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 two separate applications, a military educational waiver for the purpose of allowing him to complete the Intermediate Level Education (ILE) course and any other schooling necessary.  He also requests a change of his Mandatory Retirement Date (MRD) due to being in the Individual Ready Reserve (IRR) for 13 years.

2.  The applicant states:

* He was selected for major in 1997 and his records were boarded for lieutenant colonel only 30 days after he was promoted to the rank of major
* Just coming out of the IRR in 2008 in the rank of captain did not allow him time to react and obtain the military education required
* He later found out he could not get any military education until his clearance was adjudicated on 13 July 2009
* He will not have enough time to complete ILE or Combined Arms Exercise (CAX) in the allotted time because of his MRD

3.  The applicant provides:

* Orders 045-034 dated 4 March 1996
* Notification of promotion dated 6 June 1997
* Army Human Resources Command - St. Louis (AHRC-STL) Reassignment Orders C-01-8011-70 dated 23 January 2008
* AHRC-STL Promotion Orders B-07-084956 dated 29 July 2008
* A letter to him from the AHRC Office of Promotions dated 26 August 2008
* A Memorandum for Record, subject:  Verification of Security Clearance dated 7 October 2009
* A "JCAVS Person Summary"

CONSIDERATION OF EVIDENCE:

1.  On 21 May 1982, the applicant accepted an appointment as a commissioned officer in the United States Army Reserve (USAR), in the rank of second lieutenant (O-1).  He was appointed as an O-1 in the Hawaii Army National Guard (HIARNG) on 1 July 1982.

2.  The applicant was released from the HIARNG on 29 May 1984 and he was transferred to the USAR Control Group (Officer Active Duty Obligor (OADO)).  He was reassigned to the USAR Control Group (Annual Training) effective 30 May 1984.  

3.  The applicant was appointed as an O-1 in the Arkansas Army National Guard (ARARNG) effective 1 November 1984 and he was promoted to the rank of first lieutenant (O-2) effective 20 May 1985.  He was released from the ARARNG on 28 February 1989 for immediate reappointment in the Louisiana Army National Guard (LAARNG) effective 1 March 1989.

4.  On 24 May 1989, the applicant was promoted to captain (O-3) and continued to serve in the ARNG.  

5.  On 7 December 1989, he was released from the LAARNG due to termination of his State appointment and he was transferred to the USAR Control Group (Reinforcement).  On 8 December 1989, he was promoted to O-3 while in the USAR.

6.  The applicant accepted an appointment as an O-3 in the New York Army National Guard (NYARNG) effective 1 March 1991.  He completed the Infantry Officer Advanced Course (OAC) on 9 April 1992 and he was issued a completion certificate.

7.  On 1 March 1996, the applicant was released from the NYARNG and he was transferred to the USAR Control Group (Reinforcement), due to verbal orders of The Adjutant General.

8.  On 10 June 1996, the applicant was notified that he was considered for promotion to the next higher grade (major (O-4)) by a Reserve Components Selection Board (RCSB) and not selected.  He was told that one of the many possible reasons for non-selection may have been that his record did not show he had completed the military education requirement for promotion as specified in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-6.  He was also told if he had evidence he completed the education requirement it should be forwarded through channels to Headquarters, U.S. Total Army Personnel Command, 9700 Page Avenue, St. Louis, Missouri 63132-5200 no later than 12 March 1996.

9.  On 6 June 1997, the applicant was notified that he had been selected for promotion to major by an RCSB effective 7 December 1997.  He was told that in order to be promoted he must remain in an active status, be medically qualified for retention, and meet the standards of the Army Composition Program (otherwise meet the promotion eligibility criteria set forth in Army Regulation 135-155).  He was also told that if he was assigned to a troop program unit (TPU) he must be assigned to a duty position authorized a grade equal to or higher than the grade to which he was selected.

10.  A review of the available records does not show that orders were ever published promoting him to O-4 after he was notified of his selection by the US Total Army Personnel Command.

11.  On 30 June 2006, the applicant was notified that an RCSB convened on     14 March 2006 to consider officers of his grade (his grade is not listed on the notification) for promotion and the performance portion of his official military record was examined.  He was advised he was not considered for promotion and if he remained eligible, he should be considered for promotion the next year.

12.  On 6 November 2006, the applicant completed an AHRC Form 4145 (Election of Options – Military Service Obligation).  He elected to remain a member of the IRR.

13.  The applicant was released from the USAR Control Group (Reinforcement) effective 22 January 2008 and he was assigned to a TPU.

14.  On 29 July 2008, AHRC-PRO Orders B-07-804856 were published promoting him to O-4 with an effective date and date of rank of 7 December 1997.

15.  In a letter dated 26 August 2008, the applicant was notified by AHRC that a 1997 RCSB selected him for promotion to O-4 with a promotion eligibility date of 7 December 1997.  He was advised that prior to consideration, he transferred from the NYARNG to the USAR Control Group (Reinforcement) where he remained until 27 January 2008 and that his promotion action did not occur until he was transferred from the control group to a TPU.  He was also advised that based on his date of rank he was in the zone for promotion consideration to lieutenant colonel (O-5) by the 2003 through 2007 Lieutenant Colonel Selection Boards and since promotion action did not occur, he was not considered for promotion by those boards.  He was told he could request promotion consideration by DA Special Selection Boards (SSB) under the 2003 through 2007 criteria; however, he would not be selected because he was not educationally qualified.  The applicant was advised the required education is 50 percent completion of the Command and General Staff Officer Course (CGSOC) or 100 percent completion of ILE.  He was instructed to request a waiver of the education requirement from this Board.  He was also advised that the 2008 board would convene on 8 September 2008 and his name had been identified to that board and due to his extenuating circumstances he should submit a waiver request to the Chief, DA Promotions for the years 2008 criteria only.

16.  In an email dated 7 May 2009 from the U.S. Army Reserve Command the applicant was advised he should not be a two-time passover for promotion, he should only be a one-time passover by the 2008 Lieutenant Colonel Army Promotion List Board.  He was advised he was scheduled to go to the next lieutenant colonel board in September 2009 and that he should try to complete ILE before then; however, if he could not complete the course, he should send an educational waiver to the Chief, Office of Promotions and state that he was enrolled in ILE and the date of completion.  He was advised to emphasize that the system was incorrect from 1996 to 2008 and that was why he was not working on the ILE course.  He was also advised to contact the Chief, DA Promotions to get his advice on the military education waiver for his situation.

17.  Information contained in the AHRC-STL Integrated Web Services (IWS) shows the applicant was identified as two time nonelected by the Lieutenant Colonel RCSB.

18.  The IWS also shows the applicant had an MRD of 1 June 2010 and was recommended for selective continuation.  The IWS shows that if selected his MRD would be reduced to 24 years commissioned service.  The IWS also shows he was selected for retention by the "2407" Major Army Promotion List Board (Selective Continuation).

19.  On 13 July 2009, the applicant was granted a security clearance.

20.  As of the date of these board proceedings, there is no evidence in the available records that shows he ever enrolled in the ILE course as instructed.

21.  Army Regulation 135-155 specifies that in order to be promoted to lieutenant colonel an individual must have completed 7 years of time in grade as a major and the required military education on or before the convening date of the respective promotion board.  This regulation also specifies that promotion consideration/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.

22.  Army Regulation 135-155 further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.  In similar case the Chief, DA Promotions has noted that a waiver of an education requirement was not a guarantee that the individual would be selected for promotion, but if selected, the earliest date for promotion would be the date the individual completed the educational requirement or which the waive was granted.

23.  Title 10, U. S. Code, section 14507 states that, unless continued on the reserve active-status list, each reserve officer of the Army who holds the grade of lieutenant colonel and who is not on a list of officers recommended for promotion to the next higher grade shall be removed from that list on the first day of the month after the month in which the officer completes 28 years of commissioned service.  Title 10, U. S. Code, section 12734 states service in an inactive status may not be counted in any computation of years of service.

24.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to Soldiers.  In pertinent part, it states service performed in the status of a commissioned officer in the Army Reserve in an active Reserve status is service creditable as qualifying service.  Service in the inactive Reserve is not creditable.

25.  Army Regulation 140-10 covers policy and procedures for assigning, removing and transferring USAR Soldiers and defines Ready Reserve Control Groups and the Selected Reserve.  It states the Ready Reserve consists of Soldiers assigned to TPUs and USAR control groups who are available for mobilization in time of war or national emergency.  The IRR consists of pretrained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or national emergency.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to a military education waiver or a change of his MRD.

2.  His contentions were considered; however, there is no evidence in the available record nor has he submitted any evidence showing he ever enrolled in the ILE course.

3.  His records show he was granted a security clearance on 13 July 2009, selected for continuation, and he is currently a member of the Reserve.  However, his records do not provide any information regarding his military education and an approximate date of its completion.

4.  Additionally, the available evidence indicates that although his promotion to major was not finalized due to the fact that he transferred to the IRR prior to being considered for promotion to O-4, and that the promotion action could not be completed until he was in a TPU, on 6 June 1997, he was notified that he had been selected for promotion.  It appears the notification was mailed to his home address.

5.  It also appears he elected not to inquire about the status of his selection until after 12 years of service in the IRR.  It is unclear how his promotion selection could have gone undiscovered and/or uninvestigated by him for so many years after he had been notified of his selection.

6.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.

7.  Given the applicant's branch manager was able to discover the applicant had been selected for promotion in 1997, the applicant should have been able to do the same because he is not contending he had no access to his own records.

8.  Inasmuch as the applicant has provided no evidence to show he is enrolled in the ILE course to obtain the education required due his rank, there is no basis for granting him an educational waiver.

9.  Since service in the IRR is service in an active status, it counts towards determining his MRD.
10.  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

___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)                                         AR20090011113



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ABCMR Record of Proceedings (cont)                                         AR20090011113



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