IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090015100 


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 change of his dates of rank (DOR) as a captain (CPT)/O-3 to 17 March 2000 and as a major (MAJ)/O-4 to 17 March 2004.

2.  The applicant states that he should have been considered for promotion to CPT under the 1999 criteria rather than the 2000 criteria.  The previous Army Board for Correction of Military Records (ABCMR) decision clearly stated that the record should be corrected to show receipt of a civilian education waiver.  The regulation specified that an officer was supposed to be considered and, if selected, then request an education waiver, if necessary.

3.  The applicant provides the previous ABCMR Record of Proceedings along with other associated documents, including:

* Human Resources Command, St Louis, MO (HRC-STL) memorandum, dated 16 August 2005
* National Guard Bureau (NGB) Special Orders Number 297 AR, dated 14 October 2005, extending him Federal recognition in the Army National Guard (ARNG) for the purpose of promotion to CPT, effective 20 March 2001
* a college transcript showing he was awarded a Bachelor of Arts degree on 2 August 2002
* NGB Special Orders Number 32 AR, dated 1 February 2006, extending him Federal recognition in the ARNG for the purpose of promotion to MAJ, effective 31 January 2006


* a 15 March 2010 Memorandum for Record from the Assistant Deputy Commander Operations, Headquarters, 36th Infantry Division, Austin, TX, TXARNG, subject:  Date of Rank Adjustment for [applicant's name], recommending a special selection board (SSB) consideration for a lieutenant colonel's [LTC/O-5] unit vacancy position, if his current dates of rank as a CPT and MAJ are adjusted 

CONSIDERATION OF EVIDENCE:

1.  The ABCMR twice previously considered the applicant's situation.

2.  The original case was Docket Number AR2001058445, dated 30 August 2001.  In a 12 August 2004 reconsideration case (Docket Number AR2003096515) the Board noted:

   a.  the applicant, a TXARNG enlisted Soldier, completed the state's Officer Candidate School (OCS) and he was commissioned as a second lieutenant (2LT)/O-2;
   
   b.  he was promoted to first lieutenant (1LT)/O-2, effective 3 June 1995;
   
   c.  Army Regulation 135-155 (Promotion of Commissioned and Warrant Officers Other Than General Officers) provided that the time in grade as a 1LT was 5 years.
   
   d.  Title 10, U.S, Code, section 12205 required a bachelor's degree for promotion above the rank of 1LT and the Fiscal Year 1999 Defense Authorization Act amended that requirement to give the Secretary of the Army authority, until 30 September 2000, to waive the requirement for officers commissioned through the Army OCS before 1998.
   
   e.  he was considered and not selected by the 1999 Reserve Components Selection Board (RCSB) because he did not have a bachelor's degree;
   
   f.  his command requested an education waiver, on 10 January 2001;
   
   g. on 9 February 2001, NGB responded that they lacked the authority to grant a waiver;
   
   h.  the ABCMR had previously denied the applicant's 15 May 2001 request, in part, because no waiver was requested until January 2001;
   
   i.  a 4 April 2001 letter informed the applicant that the authority to grant waivers had expired on 30 September 2000;
   
   j.  the applicant resigned his commission and enlisted in the TXARNG rather than be involuntarily separated due to the second nonselection for promotion;
   
   k.  a 4 November 2003 opinion by the Office of The Judge Advocate General advised, in another case, that the applicable law [Title 10, U.S. Code, section 12205(d)(1)] permitted the Secretary of the Army to grant waivers of the baccalaureate requirement for ARNG officers, if the ARNG OCS program from which they were commissioned was accredited by the Department of the Army.

3.  In ABCMR Docket Number AR2003096515, the Board recommended and the secretarial authority approved correction of his records to show that a 1 August 2000 request for a waiver was approved and that the applicant be considered by an SSB for promotion to CPT.  Also, if he were selected for promotion to CPT, his reversion to enlisted status be voided and that he be shown to have remained a commissioned officer.
   
4.  A 16 August 2005 memorandum from HRC-STL informed the applicant that he had been selected for promotion to CPT under the 2000 criteria and that his date of rank as a CPT would be 30 March 2001.

5.  The applicant submitted his current application on 6 May 2009.

6.  In the processing of this case, on 16 February 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official noted that following the last ABCMR case and selection by an SSB the applicant's DOR and effective date as a CPT had been adjusted to 20 March 2001 and his DOR as a MAJ to 31 January 2006, because:

   a.  officers selected by an SSB are to have the same DOR as if they had been selected by a mandatory promotion board;

   b.  the maximum time in grade as a 1LT is 5 years; and 

   c.  the applicant had been granted full relief in accordance with the last  ABCMR decision.

7.  The applicant offered in rebuttal that the NGB recommendation was not in accordance with the ABCMR decision, the regulation, or the facts of his case.  He contends that:

* he was not but he should have been considered for promotion by the board that convened on 19 November 1999
* the ABCMR granted full relief in Docket Number AR2003096515 by directing that his record be changed to show that he requested a civilian education waiver on 1 August 2000 and his request was granted 
   
8.  Consideration of Evidence, paragraph 5, of the ABCMR Record of Proceedings for Docket Number AR2003096515 noted that the applicant was considered and not selected by the RCSB that convened in November 1999 and the one that convened in November 2000.  Discussion and Conclusions, paragraph 2, noted that the issue of waivers for graduates of state ARNG OCS programs had not been clarified until November 2003, after all waiver authority had expired and that the applicant had completed his bachelor's degree about six months later.  Therefore, the Board, recommended relief (in the form of amending the original, 30 August 2001, decision in his case) as a matter of equity.

9.  The approved recommendation provided for the approval of a 1 August 2000 waiver of the civilian education requirement, consideration by an SSB for promotion to CPT under the applicable criteria, and the voiding of his return to enlisted status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that his dates of rank as a CPT/O-3 should be changed to 17 March 2000 and as a MAJ/O-4 to 17 March 2004.

2.  The approved recommendation in ABCMR Docket Number AR2003096515 granted him a 1 August 2000 waiver of the bachelor's degree requirement because he had made significant progress in completing this requirement.  It referred his case "to an SSB for consideration for promotion to CPT under the applicable criteria."  If he was selected for promotion, his return to enlisted status was to be voided and he would be considered to have served continuously as an officer.

3.  The Determination/Recommendation section was inartfully worded in that it did not deny excess in the form of consideration under the 1999 criteria.  As clearly indicated in the Discussion and Conclusions section of ABCMR Docket Number AR2003096515, the intent of the recommended relief was only to grant him an SSB effective AFTER the date the ABCMR granted him the 1 August 2000 civilian education waiver.  Therefore, consideration under the 1999 criteria was not intended.

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 this requirement.

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)                                         AR20090015100



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ABCMR Record of Proceedings (cont)                                         AR20090015100



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