IN THE CASE OF:
BOARD DATE: 31 May 2011
DOCKET NUMBER: AR20100020360
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 that he be granted promotion reconsideration by a Special Selection Board (SSB) under the same criteria used by the Fiscal Year 2010 Captain (CPT) Reserve Component (RC) Army Promotion List (APL) Board.
2. The applicant states that due to an administrative error, his civilian education waiver was not submitted for consideration during the selection board.
3. The applicant provides:
* A copy of a memorandum requesting consideration by an SSB
* A copy of his request for an education waiver for promotion to CPT
* A copy of a memorandum to the promotion board
* Copies of email traffic regarding the failure to submit his waiver to the board
* A copy of his college transcript and diploma
CONSIDERATION OF EVIDENCE:
1. The applicant initially served on active duty in the United States Marine Corps from 8 December 1992 to 7 December 1996 and in the Marine Corps Reserve until 6 January 2000.
2. On 2 January 2002 he enlisted in the New York Army National Guard (NYARNG) and on 28 January 2004, after completion of officer candidate school (OCS), he was commissioned as a second lieutenant in the NYARNG.
3. He was promoted to the rank of first lieutenant (1LT) on 28 January 2006 and was ordered to active duty on 10 February 2007. He deployed to Afghanistan from 15 May 2007 to 8 May 2008 and was honorably released from active duty on 28 June 2008. He was returned to his NYARNG unit.
4. On 8 September 2009 the applicant submitted a request for a civilian education waiver for promotion to CPT. The request is a part of his Official Military Personnel File (OMPF) filed under the heading of Memorandum to Revoke DD Form 214 issued in error.
5. The applicant was not selected for promotion to the rank of CPT by the FY2010 board due to not being educationally qualified.
6. In the processing of this request a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines that due to an administrative error acknowledged by the NYARNG, the applicants request for an education waiver was not processed in a timely manner and was not provided as part of his promotion packet. Officials at the NGB recommend that the applicants request for consideration by an SSB be approved and that all indications that he was not selected when considered for promotion the first time considered due to not being educationally qualified be removed from his OMPF. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
7. The applicant was promoted to the rank of CPT on 7 March 2011 with a date of rank of 27 January 2011.
8. Title 10, United States Code (USC), section 12205 provides that no person shall be appointed to a grade above the grade of 1LT in the Army Reserve, or be Federally Recognized in a grade above 1LT as a member of the Army National Guard unless they have been awarded a baccalaureate degree from a qualifying educational institution that is accredited. This statutory provision applies to active duty Other Than Regular Army (OTRA) officers.
9. The Fiscal Year 2002 National Defense Authorization Act, section 512 provides that the Secretary of the Army may, on a case-by-case basis, waive the baccalaureate degree requirement of 10 USC 12205 for any officer who was commissioned through OCS. The waiver may be in effect for no more than 2 years after the waiver is granted. Upon completion of the baccalaureate degree, officers must provide documented proof to their branch officer in the form of an official transcript. Officers who have not earned a baccalaureate degree at the end of the period in which the waiver was granted are subject to discharge from active duty. The new waiver authority has no expiration date and is now codified as 10 USC 12205(d).
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should be granted consideration by an SSB under the criteria used by the FY2010 CPT RC Promotion Board has been noted and appears to have merit.
2. The evidence of record clearly shows that the applicant submitted his request for a waiver in sufficient time to be considered by the selection board and through no fault of his own, his waiver was not provided to the board for consideration.
3. Therefore, in the interest of equity, the applicant should receive promotion reconsideration by an SSB.
4. Additionally, any documents contained in his records which indicate that he was not selected when first considered for promotion to CPT based on not being educationally qualified should be removed from his OMPF.
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:
* Placing his records before an SSB for consideration to the rank of CPT with an education waiver under the same criteria used by the FY2010 CPT RC Promotion Board
* Removing all references contained in his records showing that he was not selected when first considered for promotion to the rank of CPT due to not being educationally qualified
* If selected by the SSB, the applicant will be given a date of rank (DOR) commensurate with his selection by the original board with entitlement to all back pay and allowances that flow from that change
_______ _ _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) AR20100020360
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