IN THE CASE OF:	

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090020845 


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 promotion reconsideration to captain (CPT). 

2.  The applicant states he met the educational requirements for promotion to CPT.  However, at the time the Reserve Components Selection Board (RCSB) convened, he was considered not educationally qualified because his degree was not posted to his official military personnel file (OMPF).  He completed the civilian educational requirements in December 2007 and then departed in January 2008 to attend the Military Intelligence (MI) Basic Officer Leadership Course (BOLC) II and BOLC III.  He then went straight into mobilization mode.  He was unaware that his degree was being held due to a petition that needed to be signed at his university.  He only became aware of this issue when he was in theater and contacted the university.  He then asked his spouse to complete the necessary paperwork to receive his diploma.  He then received a diploma with a backdated date of May 2008.  He ultimately had the proper diploma and transcripts with the appropriate seal posted to his OMPF in June 2009.

3.  The applicant provides a copy of a certificate, dated 10 May 2008, showing award of a Bachelor of Arts degree; a copy of a letter, dated 2 April 2009, from the Office of the Registrar; copies of his college transcript and his memorandum to the Human Resources Command (HRC), St. Louis, Missouri, in support of his application.




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army and the Pennsylvania Army National Guard (PAARNG), the applicant’s military records show he was appointed in the PAARNG as a second lieutenant (2LT), and he executed an oath of office on 14 May 2002.  

2.  He was originally assigned as an infantry platoon leader to Company D, 1st Battalion, 111th Infantry, PAARNG, and he was promoted to first lieutenant on 13 May 2004.

3.  In January 2007, he was considered for promotion to CPT by the 2007 RCSB but he was not selected.  His records indicate that he was not educationally qualified.

4.  On 10 February 2008, he entered active duty for training (ADT) and completed the 7-week MI BOLC Phase II and the 13-week MI BOLC Phase III.  He was honorably released from ADT to the control of his ARNG unit on 23 July 2008.

5.  On 26 September 2008, by memorandum, he was notified that a Department of the Army (DA) Mandatory Selection Board would convene on 4 November 2008 to consider eligible officers for promotion to CPT.  The memorandum instructed him to review his records and ensure his OMPF contained all the appropriate documents including civilian education completion documents.  

6.  On 4 October 2008, he was ordered to active duty in support of Operation Iraqi Freedom and he subsequently served in Iraq from 10 January 2009 to 28 August 2009. 

7.  On 27 March 2009, by memorandum, he was notified that he was considered for promotion to CPT but he was not selected and since that was his second non-selection, he was subject to separation on the first day of the seventh month following board proceedings.  The memorandum further stated that although he had met the education requirements for promotion, the DA Board did not consider him educationally qualified because a degree was not present in his electronic OMPF when the Board convened.  He was given the following options:

	a.  Revert to enlisted status with the option to reapply for appointment when he completed his degree requirements.


	b.  Separate from the PAARNG with the option to reapply as a civilian for appointment upon completion of degree requirements.

	c.  Due to the nature of his non-selection, apply to the Army Board for Correction of Military Records (ABCMR) wherein a relief, if granted, would eliminate the requirement to separate him.

8.  On 2 April 2009, by letter, the Registrar, West Chester University, Chester, PA, notified him that a Bachelor of Arts degree was conferred upon him effective 10 May 2008.  According to the Department of Education official website, West Chester University is accredited by the US Secretary of Education thus making the applicant's degree valid.

9.  On 26 June 2009, he petitioned the ABCMR for correction of his records to show he was educationally qualified.

10.  On 26 September 2009, he was honorably released from active duty to the control of his ARNG unit.

11.  On 23 October 2009, by memorandum, an official at the PAARNG notified him that his office did not have authority to grant him relief.  By regulation, since he was twice non-selected for promotion, he would be removed from an active status unless subsequently placed on a promotion list, selected for consideration, or retained under the provision of law.  Accordingly, he would be separated because the PAARNG was bound by Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

12.  On 28 December 2009, he was honorably discharged from the ARNG and as a Reserve of the Army by reason of being twice non-selected for promotion to CPT.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  It states 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.

14.  Army Regulation 135-155 also states that promotion reconsideration by a special selection board (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.

15.  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 criteria.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was twice considered for promotion to CPT but he was not selected by reason of not being educationally qualified.  However, when considered by the second board, he was educationally qualified but lacked the necessary documentation in his official file.  It is unclear why he did not request a civilian education waiver after receiving the memorandum notifying him of his upcoming board.

2.  He was awarded a Bachelor of Arts degree on 2 April 2009 with an effective date of 8 May 2008 from an accredited university.  

3.  The ABCMR has the authority to grant an exception to policy to grant a waiver for the civilian education requirement considering the circumstances of this case. Therefore, in view of the unique circumstances in this case, it would be appropriate to submit his records for promotion reconsideration to CPT by an SSB under the 2008 year criteria and his records should be corrected as recommended below.

BOARD VOTE:

_____X__  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by:

	a.  showing he completed the requirements for his baccalaureate degree and a copy of his Bachelor of Arts degree, dated 8 May 2008, was placed on his OMPF prior to the convening date of the 2008 CPT RCSB;

	b.  submitting his records to a duly constituted SSB for promotion reconsideration to CPT under the 2008 year criteria, and if selected: 

		(1)  voiding his ARNG discharge order, dated 30 December 2009, and considering it of no force or effect; 

		(2)  reinstating him to his previous Reserve commissioned status;

		(3)  promoting him to CPT with the appropriate date of rank, effective date, and date of Federal recognition; 

		(4)  crediting him with qualifying service for Reserve retirement for his respective retirement year(s), from the date of his now-voided discharge to the date of his return to the active Reserve;

		(5)  placing in his OMPF an adequate explanation to show that the gap in his officer evaluation reports, from the date of his now-voided discharge to the date of return to active Reserve status, was not caused by any fault on his part, and to ensure he is not prejudiced thereby in the consideration of any future personnel actions; and











		(6)  expunging from his OMPF all documents related to his now-voided non-selection for promotion by the 2008 RCSB and his discharge orders.

	c.  if not selected, the applicant be so notified.




      _______ _   _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)                                         AR20090020845



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ABCMR Record of Proceedings (cont)                                         AR20090020845



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