IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100017353 


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 a military education waiver and promotion reconsideration for lieutenant colonel (LTC) by a special selection board (SSB).

2.  He states he mobilized and deployed in support of Operation Iraqi Freedom from December 2003 through April 2005 and again from April 2006 through August 2007.  He further states throughout fiscal years 2008 and 2009 he submitted numerous requests through his unit to complete the Intermediate Level Education (ILE) Common Core (CC) Course.  He continues that all reservations were cancelled due to his medical status being listed as P-3 by the U.S. Army Human Resources Command (HRC) Surgeon's Office due to major medical complications from a pulmonary embolism in his right lung.

3.  He states even though his physicians cleared him for duty in May 2008, he could not submit any of his medical documentation to the HRC Surgeon's Office until a medical evaluation board (MEB) reviewed his medical records.  He was told MEB reviews were backlogged for 18 months.  Since then he was cleared medically in November 2009.  He enrolled in the ILE-CC Course and completed phases I and II.

4.  The applicant provides:

* a memorandum from the 2nd Battle Command Training Group
* a letter from the Illinois Lung Institute
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  On 6 July 1987, he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant.

2.  He was promoted to the rank of major (MAJ) with an effective date of rank of 17 July 2003.

3.  He was ordered to active duty in support of Operation Iraqi Freedom for the periods:

* 18 February 2004 through 22 May 2005
* 17 April 2006 through 17 August 2007

4.  A DA Form 67-9 (Officer Evaluation Report) for the period ending 4 July 2008 shows he passed his Army Physical Fitness Test (APFT) on 3 May 2008.

5.  A DA Form 67-9 for the period ending 18 March 2009 shows he passed his APFT on 1 November 2008.

6.  A letter from the Illinois Lung Institute, dated 29 June 2009, indicates the applicant was symptom free from a pulmonary embolism and he was no longer required to take medication for the ailment.

7.  Orders A-06-016815, dated 4 June 2010, issued by HRC show he was ordered to active duty for contingency operations in support of Operation Enduring Freedom for the period 30 June 2010 through 29 June 2011 with attachment to the 75th Battle Command Training Division, 3rd Brigade, Fort Sheridan, IL.

8.  The HRC Soldier Management System transaction history entry, dated 6 August 2009, shows his reservation to school was cancelled due to mobilization.

9.  On 8 September 2009, a promotion board was convened to consider Reserve Component (RC) MAJ's for promotion to LTC.  On 22 September 2009, the promotion board adjourned.

10.  A DA Form 67-9 for the period ending 13 March 2010 shows he passed his APFT on 2 September 2009.

11.  On 6 January 2010, the promotion results for LTC, Army Promotion List (APL), RC, were published and show the applicant was not selected for promotion due to not completing the required military education.

12.  On 20 September 2010, a DA Form 1059 (Service School Academic Evaluation Report) was completed showing he achieved course standards for the U.S. Army Command and General Staff Officer Course (CGSOC) 1-250-ILE (CC).  This form shows the duration of this course was from 29 November 2009 to 13 September 2010.  The Department of Distance Education of the Command and General Staff College Deputy Director and Director authenticated this form on 20 September 2010.

13.  Promotion Orders B-02-100827, dated 11 February 2011, issued by HRC show he was promoted to the rank and grade of LTC/O-5 effective 3 January 2011.

14.  The applicant's military medical records are not available.

15.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, HRC.  The advisory opinion recommended denial. 
It stated that the applicant was considered for promotion to LTC by the 2009 Department of the Army RC Selection Board.  He had not completed one of the required military education requirements (50-percent completion of the legacy CGSOC or full completion of ILE-CC); therefore, he was not selected for promotion.  An entry in the interactive Personnel Electronic Records Management System indicates the applicant's scheduled reservation for ILE was cancelled in August 2009 due to mobilization.  He had the opportunity but did not request a waiver for the board and he did not view his board file prior to the board.  Since the applicant did not practice due diligence concerning his promotion in 2009, HRC recommended his request for a waiver and SSB consideration for 2009 be denied.

16. In his rebuttal to the advisory opinion, he stated an unresolved physical profile (P-3) for the period November 2007 through November 2009 from a pulmonary embolism prevented him from obtaining a reservation for ILE-CC.  He states that although he had been cleared by his civilian doctors and passed his APFT in November 2008, his P-3 profile was not lifted until November 2009, well after the September 2009 LTC APL Selection Board.

17.  He further states that at the time of the 2009 LTC APL Selection Board, he was not educationally qualified according to Military Personnel (MILPER) Message Number 09-110, paragraph 1f.  He was not enrolled in ILE-CC and he had not completed phases I and II of the ILE non-resident course to meet the waiver requirements listed in the message.  He continues that there was little time between his ILE-CC Course cancellation in August 2009 and the September 2009 LTC APL Selection Board to apply for a waiver.  After he returned from deployment to Iraq from November 2007 to November 2009, he did everything within his ability to recover from a serious condition and continue his military service.  He tried to enroll in ILE-CC and complete his military education needed for promotion selection on multiple occasions and was denied enrollment due to reasons beyond his control which excluded him from consideration for promotion without a clear recourse.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policies and eligibility requirements for selecting and promoting officers of both the Army National Guard and the U.S. Army Reserve.  To qualify for selection, commissioned officers must complete the military educational requirements no later than the day before the selection board convening date.  To be fully qualified for selection, an officer must be eligible for consideration, participating satisfactorily, physically qualified, capable of performing the duties of the next higher grade, and educationally qualified.  To select those who are best qualified, the board must first determine which members of the promotion group are fully qualified.  The best qualified are then selected from that group.

19.  Army Regulation 135-155 specifically states SSB's will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error or who were not selected for mandatory promotion as a result of material error.

20.  Paragraph 2-8 of Army Regulation 135-155 states that in order to qualify for selection, commissioned officers must complete the military education requirements no later than the day before the selection board convening date.  The military education requirements from CPT to MAJ is any officer advanced course.  The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military/civilian education) and that requests must contain complete justification and be received prior to the board convening date.

21.  Army Regulation 135-155 further specifies that the Commander, HRC, Chief, Office of Promotions (RC) is the approval authority for all requests for exception to non-statutory promotion requirements.  Requests must contain complete justification, including recommendations by intermediate commanders when applicable.  The Army Board for Correction of Military Records has the authority to grant a waiver for education for a past criteria.

22.  MILPER Message Number 09-110, issued 14 May 2009, announced the Fiscal Year 2009 RC, LTC, APL, competitive categories for promotion selection board zones of consideration.  Within this instructional message, it stated evidence that required military and civilian education must be in the officer's My Board File maintained on the HRC website prior to the board convening date.  Further, it stated the military education requirement is 50-percent completion of the legacy CGSOC or completion of a non-resident ILE-CC with evidence of completion determined by a DA Form 1059.  Officers who are not educationally qualified will not be selected for promotion in accordance with the Director of Military Personnel Management Policy Memorandum, dated 31 August 2006, subject:  RC Promotion Board Military Education Waiver Guidance.

DISCUSSION AND CONCLUSIONS:

1.  The MILPER message provided specific instructions to officers in the zone of consideration for promotion to LTC APL, including the applicant.  This message stated the only acceptable document to confirm course completion for military education was the DA Form 1059 and this form was to be filed in the officer's promotion record at least 1 day prior to the convening date of the promotion board.  His promotion board convened on 8 September 2009.

2.  He contends that he should receive a military education waiver because he had multiple deployments from December 2003 through April 2005 and April 2006 through August 2007 and that he could not enroll in the ILE-CC Course until he was cleared by an MEB in November 2009.  However, his DA Forms 67-9 for the periods of 2008 through 2010 show he passed his APFT with no indication of a physical profile.  There is no evidence in his military service records and he has not provided any evidence such as official military medical documents to substantiate his claim of a serious medical condition or that he endured undue hardship that prevented him from enrolling in the ILE-CC Course in a timely manner or requesting a military education waiver.

3.  His military service records show he had not completed the ILE-CC Course requirements before the promotion board convened on 8 September 2009.  He completed ILE-CC on 20 September 2010.  The requirement for completion of the ILE-CC course is a long-standing requirement for promotion to LTC, which he could have started working toward as early as 2003.  There is insufficient evidence that would warrant granting him a waiver for his military education requirement for ILE-CC Course to meet the educational requirements for promotion consideration for the 2009 LTC APL.  Without granting him this educational waiver, there is no evidence of a material error that would warrant consideration by an SSB.

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 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)                                         AR20100017353



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ABCMR Record of Proceedings (cont)                                         AR20100017353



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