IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100007600 


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 he be granted an educational waiver and that he be considered for promotion to Lieutenant Colonel (LTC) by a special selection board (SSB).

2.  The applicant states:

* He was not selected for the 2009 LTC APL [Army Promotion List] Board due to military education requirements
* He met the requirements per Military Personnel (MILPER) message      09-110 and should have been promoted
* He submitted a request for an education waiver on 25 August 2009 while deployed in Afghanistan but his request was never received by the Human Resources Command 

3.  The applicant provides:

* ATRRS [Army Training Requirements Reporting System] report
* Email, dated 26 August 2009
* Request for waiver, dated 25 August 2009
* Email, dated 25 August 2009 





CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 13 May 1989.  He was promoted to major on 22 November 2002.  He was ordered to active duty on 3 March 2009 in support of Operation Enduring Freedom.  He arrived in Afghanistan on 6 April 2009.  

2.  Records show the applicant completed Phases I and 2 of Intermediate Level Education (ILE) in August 2009.  On 25 August 2009, he requested a military education waiver for the September 2009 LTC promotion board based on his extenuating circumstances (mobilized Army Reserve Soldier who was deployed to Afghanistan in March 2009 in support of Operation Enduring Freedom).  In his request he indicates he had not been able to complete Phase 3 of ILE but he would complete Phase 3 by correspondence.  He requested the military education waiver in accordance with MILPER message 09-110 and based upon his real-world mobilization in support of Global War on Terror, his current deployment in a combat zone, and his enrollment in ILE-RC.      

3.  The applicant departed Afghanistan on 28 August 2009.  He was released from active duty on 25 June 2010 and returned to the USAR.

4.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, U.S. Army Human Resources Command, St. Louis, Missouri (USAHRC – STL).  The opinion points out the applicant was considered but not selected by the 2008 and 2009 LTC DA Reserve Components Selection Board (RCSBs).  The reasons for non-selection are unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board.  However, in this case, the applicant could not be selected based on the fact his records did not reflect completion of the required military education (50 percent Command and General Staff College or 100 percent completion of ILE-Common Core (CC), or equivalent).  In order to have been eligible for a military education waiver prior to the board convene dates, he would have had to complete at a minimum Phases 1 and 2 of non-resident ILE-CC.  The Chief, DA Promotions is the approval authority for the military education waivers prior to the convene date of the selection board.

5.  The advisory opinion states the applicant completed Phases 1 and 2 of ILE-CC as of 24 August 2009 and had the waiver been received in that office he would have met education waiver requirements.  Since the board has already taken place, the Chief, DA Promotions no longer has the authority to grant an education waiver.  The Chief, DA Promotions recommends approval of a military education waiver for calendar year 2009, and if granted, direct a special selection board (SSB).  

6.  On 17 June 2010, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond within the given timeframe.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states, in pertinent part, that the Office of Promotions, Reserve Components, USAHRC - STL is the approval authority for all requests for exceptions to nonstatutory promotion requirements.

8.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and appear to have merit.

2.  The evidence of record shows the applicant was not selected for promotion to LTC by the 2008 and 2009 DA RCSBs.  His records did not reflect completion of the required military education.  

3.  The regulatory military education requirement for promotion to LTC is 100 percent completion of ILE-CC, or equivalent.  The applicant had completed Phases 1 and 2 of ILE as of 24 August 2009.  Evidence of record also shows, while deployed in Afghanistan, he submitted a request for a military education waiver on 25 August 2009.  Apparently, the Chief, DA Promotions did not receive this request.   

4.  Based on the information provided in the advisory opinion, had the applicant's request for a military education waiver been received by the Chief, DA Promotions the applicant would have met education waiver requirements. 

5.  It appears an injustice has occurred in this case.  Therefore, in accordance with the advisory opinion, it would be equitable to correct his records to show he was granted a military education waiver and to have his records considered for promotion to LTC by an SSB under the 2009 criteria.


BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing he requested a military education waiver and his request was granted on 25 August 2009; and

	b.  forwarding his records to an SSB for consideration for promotion to LTC under the applicable criteria. 

2.  That, if he is selected for promotion, he be promoted and assigned an appropriate date of rank in accordance with the regulatory policies in effect at the time.

3.  That, if he is not selected for promotion, he be notified accordingly. 




      _______ _   _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)                                         AR20100007600





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ABCMR Record of Proceedings (cont)                                         AR20100007600



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