IN THE CASE OF:	

		BOARD DATE:	 15 December 2009

		DOCKET NUMBER:  AR20090012765 


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, a civilian education waiver and promotion reconsideration to captain (CPT) by a special selection board (SSB) under the fiscal year (FY) 2009 criteria.

2.  The applicant states that his civilian college transcripts were not entered into his military records in a timely manner by his previous unit and that his civilian college transcripts and request for an education waiver were not included in the APL (Army Promotion List) CPT Board causing him to be a two-time non-select for promotion to CPT for civilian education.

3.  The applicant provides, in support of his application, a copy of his college transcripts, dated 30 January 2009 (degree awarded on 20 December 2008); copies of his DA Forms 67-9 (Officer Evaluation Report (OER)) for the periods 
1 December 2007 through 30 November 2008, 19 June 2007 through 
30 November 2007, 19 June 2006 through 18 June 2007, and 16 December 2005 through 18 June 2006; a copy of his comments to the OER he received on 9 September 2007; a copy of a memorandum, dated 8 June 2009, appealing the results of the 2009 CPT Board; a copy of a letter of input, dated 14 November 2008, to the 2008 Order of Merit List; a copy of a certificate, dated 1 August 2008, showing completion of the Pre-Command Course; a copy of his DA Form 1059 (Service School Academic Evaluation Report), dated 16 July 2004; and a copy of a letter, dated 18 June 2009, from the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, denying his request for an SSB.


CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant’s records show he was appointed as a second lieutenant (2LT) in the Engineer Corps of the Missouri Army National Guard (MOARNG) and he executed a National Guard Bureau (NGB) Form 337 (Oaths of Office) on 19 August 2002.  He subsequently entered active duty and he completed the Engineer Officer Basic Course on 16 July 2004.  He was promoted to first lieutenant (1LT) on 19 August 2004 and he was assigned to the 220th Engineer Company, Festus, MO.

2.  On 6 December 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and he subsequently entered active duty and served in Kuwait/Iraq from 15 May 2005 to 2 January 2006.  He was honorably released from active duty on 4 February 2006.

3.  During the month of June 2007, the applicant received a referred OER, an annual OER, which covered 12 months of rated time from 19 June 2006 through 18 June 2007 for his duties while serving as a platoon leader with the 220th Engineer Company.  In Part IV (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" blocks for the areas of "Mental" attribute, "Conceptual" skill, and "Motivating" actions.  Additionally, the rater placed in Part Va (Performance Potential Evaluation), an "X" in the "Unsatisfactory Performance-Do Not Promote" block and entered supporting comments in Part Vb.  Furthermore, the senior rater placed an "X" in the "Do Not Promote" block in Part VIIa (Senior Rater) and entered supporting comments 

4.  During the month of November 2007, the applicant received a second referred OER, a change of duty OER, which covered 6 months of rated time from 19 June 2007 through 30 November 2007 for his duties while serving as a platoon leader with the 220th Engineer Company.  In Part IV, the rater placed an "X" in the "No" block for the "Duty" value, "Mental" attribute, "Conceptual" skill, and "Planning" and "Executing" actions.  Additionally, the rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block and entered supporting comments in Part Vb.  Furthermore, the senior rater also placed an "X" in the "Do Not Promote" block in Part VIIa and entered supporting comments 

5.  The applicant submitted a copy of a memorandum, dated 6 September 2008, addressed to the President, FY09 CPT APL Board, in which he stated that he reviewed his board file on line and that he would graduate with a Bachelor's Degree in Biology and Environmental Science on 16 December 2008.  However, there is no indication that USAHRC-St. Louis received this memorandum.

6.  The applicant submitted a copy of a memorandum, dated 14 November 2008, addressed to the President, 2008 Engineer Officer Review Board, in which he stated that he would graduate with a Bachelor's Degree in Biology on 20 December 2008.  

7.  The applicant’s records show he was considered for promotion to CPT by the mandatory Department of the Army (DA) 2008 Reserve Components Selection Board (RCSB) that convened on 6 November 2007 and recessed on or about 15 November 2007, but he was not selected.  Military Personnel (MILPER) Message 07-183, issued on 23 July 2007, specified the following:

	a.  Army policy requires Soldiers to review their "My Board File (MBF)" on-line.  "You are required to provide any missing documents that you have in your possession or make a reasonable attempt to retrieve those missing documents. Failure to comply with this Message may demonstrate a "lack of due diligence" on your part and must be fully explained if you decide to request a Special Selection Board at a later date."

	b.  Army Regulation 135-155 (Promotion of Commissioned Officers and warrant Officers Other Than General Officers), paragraph 2-8 and table 2-2, lists the military education requirements for promotion selection.  Military and civilian education requirements must be completed no later than the day before the boards convene.  Evidence that you completed the required military and civilian education must be in your MBF.  For these boards the military education requirement is completion of the Officer Basic Course (OBC).  The civilian education requirement is a Baccalaureate Degree.  Evidence of completion is the Academic Evaluation Report (AER) (DA Form 1059) or diploma.  Officers not educationally qualified will not be selected for promotion.  In accordance with Director of Military Personnel Management (DOPM) Policy memorandum, dated 31 August 2006, Subject: Reserve Component Promotion Board, Military Education Waiver Guidance, there will be no military education waivers.

8.  The applicant’s records show he was again considered for promotion to CPT by the mandatory 2009 RCSB that convened on 4 November 2008, but he was not selected.  MILPER Message 08-198, issued on 4 August 2008, specified the exact same wording as the 23 July 2007 MILPER Message.

9.  On 16 December 2008, the applicant was awarded a Bachelor of Science Degree in Biology and Environmental Science from Drury University.



10.  On 8 June 2009, by letter, to the President, FY09 CPT APL Board, the applicant appealed the board results and requested an SSB.  He stated that his civilian education transcripts were not entered into his records and that the two negative OERs were due to a personality conflict with his rater.

11.  On 18 June 2009, by letter, the Chief, Special Actions Branch, DA Promotions, USAHRC-St. Louis notified the applicant that at the time he was considered for promotion in November 2008, he had not completed the required civilian education requirement of a Baccalaureate Degree and that an education waiver could have been considered on a case by case basis if it had been received prior to the convening date of the Board.

12.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  This regulation 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.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  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.

13.  Army Regulation 135-155 also specifies that for a first lieutenant to be eligible for promotion to captain, 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.

14.  The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all current year criteria requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification and be received prior to the board convening date.  The ABCMR has the authority to grant a waiver for the civilian education for a past criterion.

15.  Title 10, U.S. Code, section 12205, states that no person may be appointed to a grade above first lieutenant in the Army Reserve, or be federally recognized in a grade above first lieutenant as a member of the Army National Guard unless he was awarded a baccalaureate degree from a qualifying educational institution. 

A qualifying institution is an educational institution that is accredited.  This statutory provision applies to active duty Other Than Regular Army (OTRA) officers.  It does not apply to officers appointed to the grade of captain before 
1 October 1995, nor does it apply to an officer appointed in, or assigned for service in a health profession for which a baccalaureate degree is not a condition of original appointment or assignment.

16.  In accordance with section 512 of the National Defense Authorization Act (NDAA) for FY02, the Secretary of the Army 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 Officer Candidate School.  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 in which the waiver was granted are subject to discharge from active duty.  The new waiver authority has no expiration date and is now codified as Title 10, U.S. Code, section 12205(d).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted a civilian education waiver and promotion reconsideration to CPT by an SSB under the FY 2009 criteria.

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.  The applicant knew or should have known that completion of a Bachelor's Degree has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones, are widely published in official, quasi-official, and unofficial publications, and in official communications.

3.  The evidence of record shows that the MILPER Messages announced the convening dates of the 2008 and 2009 boards with specific instructions for eligible officers to ensure the officer’s record was complete and met the requirements.  

4.  The applicant’s order to active duty and subsequent deployment in support of Operation Iraqi Freedom is noted.  Furthermore, his efforts in pursuing his 


education with a goal of obtaining a Bachelor's Degree are also noted.  
Nevertheless, when his record was considered by the 2008 RCSB, he lacked the civilian education requirement.  He was awarded a Baccalaureate Degree on 16 December 2008, nearly 13 months after the convening date of the 2008 Board and over a month after the convening date of the 2009 Board.  There is neither an error nor an injustice.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090012765



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ABCMR Record of Proceedings (cont)                                         AR20090012765



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