IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100015594 


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 consideration to captain (CPT/O-3) by a special selection board (SSB).

2.  The applicant states:

	a.  he was non-selected (twice) for promotion to CPT by the Fiscal Year (FY) 2009 CPT Army National Guard (ARNG) Reserve Components Selection Board (RCSB) because he had not completed the required civilian education. 

	b.  he missed two academic years due to mobilization preventing the conferment of his degree.

3.  The applicant provides:

* multiple documents from his official military personnel file (OMPF)
* American Intercontinental University transcript
* Bachelor of Science Degree

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records shows he initially enlisted in the South Carolina Army National Guard (SCARNG) on 16 March 1990 and continued to serve in an enlisted status until he was honorably discharged in the rank of sergeant on 9 July 2002.

2.  On 10 July 2002, the applicant was appointed a second lieutenant (2LT)/O-2 in the SCARNG in the Transportation Corps.  He also completed his oath of office on 10 July 2002.

3.  On 7 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF).  He was promoted to first lieutenant (1LT)/O-2
on 10 July 2004.

4.  On 24 March 2005, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows he completed 1 year, 3 months, and 18 days of creditable active military service.

5.  On 21 February 2009, the applicant was ordered to active duty in support of OIF and continued to serve until he was honorably REFRAD on 8 May 2010.  The DD Form 214 issued to him at that time shows he completed 1 year, 2 months, and 18 days of active military service for the period it covered.

6.  In a memorandum, dated 3 February 2010, the Chief, DA Promotions, Army Human Resources Command (AHRC), informed the applicant he was considered, but not selected for promotion by the FY 2008 and 2009 CPT ARNG RCSBs.  He was also informed that although the reasons for nonelection are unknown, he could not be selected because his records did not reflect his completion of the required civilian education requirements (Bachelor's Degree). AHRC informed the applicant of his option to apply to this Board for an educational waiver and if granted to reapply for an SSB.

7.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  NGB stated:

   a.  The applicant was deployed overseas from 7 December 2003 through June 2005 and again from 21 February 2009 through 8 May 2010 with extensive training periods prior to each deployment.
   
   b.  The training period of his second deployment was from January 2008 to January 2009 during which time the applicant was mobilized on Title 10 Orders, thus the combination of deployments and training mobilizations caused the applicant to miss two academic years which delayed the conferment of his degree.
   
   c.  The applicant was passed over for promotion to CPT by the FY 2008 and 2009 CPT ARNG RCSBS that convened 6 November 2007 and 4 November 2008, respectively.
   d.  The applicant was not selected for promotion because his record did not reflect completion of required civilian education.
   
   e.  Despite missing two academic years due to his service obligations the applicant worked outside of his duty hours to complete his degree while mobilized to active duty.  The frequency and length of the applicant's Title 10 mobilizations interfered with his ability to complete his civilian education requirement in a timely way and placed him at a severe disadvantage.  Based on fairness and equity, the extenuating circumstances relating to the applicant's meritorious Federal service, NGB recommended the applicant be considered by an SSB and the State concurred.

8.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 14 February 2011.  He did not respond.

9.  The applicant provides a copy of his Bachelor's of Science Degree in Criminal Justice Special Population which shows it was conferred in September 2009.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that promotion reconsideration by a 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.

11.  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.

12.  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 Army Board for Correction of Military Records has the authority to grant a waiver for the civilian education for a past criteria.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be considered for promotion to CPT by an SSB.

2.  The evidence of record confirms the applicant’s deployments and extensive training mobilizations caused him to miss two academic years which delayed the deferment of his degree placing him at a severe disadvantage.  In addition, AHRC informed the applicant of his option to apply to this Board for an educational waiver.  In view of these circumstances, and given the favorable recommendation of NGB officials and the information provided the applicant by AHRC promotion officials, it would be appropriate to correct the applicant’s record to show he was granted a waiver of the civilian  education requirement prior to the convening dates of the 2008 and 2009 CPT ARNG RCSBs.

3.  Further, based on the civilian education waiver, it would also be appropriate for the applicant to be reconsidered for promotion to CPT by an SSB using the criteria used by the 2008 and 2009 CPT RCSBs.  If the applicant is selected for promotion by either SSB it would also be appropriate to provide him all back pay and allowances due as a result. 

4.  In view of the foregoing, the applicant’s 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 Department of the Army records of the individual concerned be corrected by:

   a.  showing that he was granted a waiver for the civilian education requirement for promotion to CPT prior to the convening dates of the 2008 and 2009 RCSB; 
   b.  referring his record to a Special Selection Board for promotion reconsideration to CPT under the criteria used by the 2008 and 2009 RCSB; 
      
   c.   if selected under either criteria his records should be further corrected by showing he was promoted to CPT on his date of eligibility, as determined by appropriate Departmental officials provided he was otherwise qualified, and met all other prerequisites for promotion.  He should also be provided all back pay and allowances due as a result; and 
   
   d.  if not selected, the applicant should 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)                                         AR20100015594



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015594



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1