IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100020900 


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, in effect, correction of his records to remove any reference that he was twice non-selected for promotion to captain (CPT)/pay grade O-3 and consideration for promotion to CPT by a Special Selection Board (SSB).

2.  The applicant states while preparing to mobilize in September 2008 he was informed by his battalion adjutant that he was to be considered for promotion by the upcoming Fiscal Year 2009 (FY09) Department of the Army (DA) CPT Promotion Board.  At the time, he had not yet completed the basic educational requirement of a bachelor's degree.

   a.  Realizing that he would not be able to complete the education requirement while he was deployed, he submitted a request for a civilian education waiver that would allow him to complete the requirements by late 2010.  A few weeks later, the battalion executive officer and adjutant informed him the battalion had forwarded his request for waiver to the brigade.

   b.  He deployed to Iraq and heard nothing further on his request for waiver or the results of the promotion board.

   c.  He redeployed in August 2009 and returned to civilian employment.  On
7 October 2009, he was informed via email message that his request for waiver was not properly submitted by the brigade in 2008 and that he was a first-time non-select by the FY09 DA CPT Promotion Board.

   d.  On 15 October 2009, he received an email message informing him that he would be considered for promotion on 3 November 2009 by the FY10 DA CPT Promotion Board.  He prepared another request for civilian education waiver, submitted it to the battalion adjutant on 21 October 2009, and it was forwarded to the brigade on 1 November 2009.  At that time, the adjutant was informed there was not sufficient time to process the request for waiver to the promotion board, so it was not forwarded to Headquarters (HQ), National Guard Bureau (NGB).

   e.  The applicant asserts that he did everything required of him to obtain a
civilian education waiver and he currently needs only 21 credit hours to complete his bachelor's degree.  He has developed a plan to meet the requirement within
1 year and will submit a second request for education waiver, if required.

3.  The applicant provides a copy of his request for civilian education waiver and documents in support of his request for waiver.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and Washington Army National Guard (WAARNG) for a period of
3 years on 30 April 2002 for the Officer Candidate School enlistment option.

2.  He was appointed as a Reserve commissioned officer in the ARNGUS and extended Federal recognition as a second lieutenant/pay grade O-1 in the WAARNG effective 24 August 2003.

3.  He was promoted to first lieutenant/pay grade O-2 effective 24 August 2005.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 18 August 2008 in support of Operation Iraqi Freedom (OIF) and he served in Iraq from 17 October 2008 to
5 August 2009.  He was honorably released from active duty on 30 August 2009 and transferred to his WAARNG unit.  He completed 1 year and 13 days of net active service.

5.  In support of his application, the applicant provides the following documents:

   a.  Headquarters, 81st Brigade Troops Battalion, Everett, WA, memorandum, dated 30 September 2008, subject:  Waiver of Statutory Education Requirements for Promotion to Captain, that shows the applicant requested waiver of the civilian education requirement (i.e., completion of a bachelor's degree) for consideration by the FY09 DA CPT Promotion Board.  He anticipated completion of his degree during his deployment.
   b.  Special Operations Detachment - Pacific, Camp Murray, Tacoma, WA, memorandum, dated 22 July 2010, subject:  1LT [Applicant's Name] Education Waiver for 2008 [sic] CPT Promotion Board, that shows the adjutant confirmed the applicant was mobilized in August 2008, his record was reviewed, and it was determined he did not meet the education requirements for promotion to CPT.

       (1)  A request for education waiver was processed and submitted through channels prior to the unit's deployment.  

       (2)  The applicant had planned to complete his classes by spring 2009; however, the unit's operational tempo precluded him from completing the classes as planned.

       (3)  The unit was never notified that the applicant's request for waiver did not make it to the board until the results of the promotion board were announced.

       (4)  The adjutant asserts the applicant and his chain of command did everything necessary to obtain an education waiver for the FY09 DA CPT Promotion Board.

   c.  Headquarters, 205th Regiment, Camp Murray, Tacoma, WA, memorandum, dated 21 July 2010, subject:  Education Waiver Request for 1LT [Applicant's Name], that shows the operations officer confirmed he was the executive officer of the applicant's unit throughout the deployment to OIF.  The applicant submitted a request for education waiver and it was processed through the battalion and brigade.

       (1)  He states the applicant's request was apparently not processed to HQ, NGB.  As a result, the applicant was not selected for promotion.

       (2)  The applicant learned of his non-select in October 2009 and attempted to resubmit his request for an education waiver.  However, there was insufficient time to process his request prior to the FY10 DA CPT Promotion Board convening date and he was not selected for promotion to CPT a second time.

       (3)  The operations officer strongly recommends the applicant be given the opportunity to remain in the ARNG to complete the education requirement.
   
   d.  Headquarters, 81st Brigade Special Troops Battalion (BSTB), Everett, WA, memorandum, dated 17 July 2010, subject:  1LT [Applicant's Name] - Executive Officer, B Company, 81st BSTB, that shows the commanding officer requests that the applicant be reconsidered for promotion to CPT because of events beyond the applicant's control.
       (1)  He states the applicant needs approximately 30 semester hours to complete his bachelor's degree.

       (2)  He restates the circumstances surrounding the applicant's mobilization in 2008 and the processing of his request for a civilian education waiver.  

       (3)  He confirms that the applicant learned his request for waiver had not been submitted to the board only after he returned from Iraq.  He resubmitted his request for waiver on 1 November 2009, but not in time for it to be processed for the FY10 DA CPT Promotion Board and the applicant was not selected for promotion.

       (4)  The commanding officer summarizes the applicant's accomplishments while serving in the unit and requests the applicant be reconsidered for promotion to CPT.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, Virginia.

   a.  The advisory official recommends partial approval of the applicant's request to allow his promotion packet, to include his civilian education waiver, be considered by an SSB for promotion to CPT under the FY09 and/or FY10 DA CPT Promotion Board criteria and, if selected for promotion, payment of all back pay and allowances that may be due.

       (1)  The advisory official restates the processing of the request for education waiver.  He adds that it was reviewed at HQ, NGB, on 30 September 2008; submitted to the U.S. Army Human Resources Command (USA HRC),
St. Louis, MO, on 9 October 2008; and USA HRC granted the civilian education waiver, effective 29 October 2008.  He adds the governing statute allows that the waiver may be in effect for no more than 2 years after the waiver is granted.

       (2)  The State was not aware the waiver had been granted and, through no fault of the applicant, the waiver was not included in his promotion packet.

       (3)  The applicant was not recommended for promotion by the FY09 DA CPT Promotion Board.  However, if the waiver had been included in the applicant's promotion packet, he would have met the minimum requirements for selection to be promoted to CPT.

       (4)  The advisory official confirms the applicant was instructed to resubmit a request for education waiver for the FY10 DA CPT Promotion Board under the pretense that his first waiver had not been submitted or approved.  However, due to untimely submission, his second request for waiver was not processed.  The applicant was a non-select for promotion by the FY10 DA CPT Promotion Board.

   b.  The advisory official opines that the documents provided by the applicant show he was misinformed concerning the status of his request for waiver.  He adds:

       (1)  the applicant has not yet completed a baccalaureate degree;

       (2)  if the applicant is selected for promotion to CPT by an SSB under the FY09 or FY10 DA CPT Promotion Board criteria, the effective date of his discharge should be adjusted to no later than 2 years after his civilian education waiver was approved (i.e., 29 October 2010); and

       (3)  if the applicant is not selected for promotion to CPT by an SSB under the FY09 or FY10 DA CPT Promotion Board criteria, the effective date of his discharge should be adjusted to no later than the date in which he reached his maximum time in grade of 5 years as a 1LT (i.e., 24 August 2010).

       (4)  To date, the applicant has not been discharged and remains a member of the WAARNG.  Therefore, the effective date of his discharge should be no later than the effective date determined by the ABCMR.

7.  On 12 May 2011, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has not provided a response.

8.  On 15 June 2011, information pertaining to the applicant's civilian education waiver was requested from the Officer Promotions Branch, Management Support Division, USA HRC, Fort Knox, KY.

   a.  The USA HRC official confirmed that the civilian education waiver was in the applicant's FY09 promotion packet and he was not selected for promotion.  

   b.  There was no evidence the applicant requested a waiver for the FY10 board; therefore, he was considered by the board as not educationally qualified.  Since he was not educationally qualified, he did not meet the criteria for selection for promotion.

   c.  The official added that a waiver must be requested for each board.

   d.  If selected for promotion, the promotion is contingent upon completion of the required education.
9.  On 15 June 2011, the applicant was provided a copy of the email message in order to have the opportunity to respond to its contents.  However, the applicant failed to provide a response.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers of the U.S. Army Reserve.  

   a.  Chapter 2 (Promotion Eligibility and Qualification Requirements) provides in:

       (1)  section II (Eligibility for Consideration and General Qualifications for Selection), paragraph 2-9 (Civilian education requirements), that effective
1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education or, within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense for purposes of meeting officer educational requirements;

       (2)  section III (Board Considerations), paragraph 2-15 (Exceptions), subparagraph b (General exceptions), states that the Commander, USA HRC, Chief, Office of Promotions (Reserve Component), is the approval authority for exceptions to all non-statutory promotion requirements.

   b.  Chapter 3 (Board Schedules and Procedures), Section III (Promotion Reconsideration Boards), paragraph 3-19 (General), provides that officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board. Special selection boards will reconsider commissioned officers who were wrongly not considered and/or those who were considered, but not selected by mandatory promotion boards that convened on or after 1 October 1996.

11.  Title 10, U.S. Code, section 12205, paragraph (d), provides, "[t]he Secretary of the Army may, on a case-by-case basis, waive the baccalaureate degree requirement for any officer who was commissioned through the Army Officer Candidate School.  The waiver may be in effect for no more than two years after the waiver is granted.  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."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to remove any reference that he was twice non-selected for promotion to CPT (O-3) and he should be reconsidered for promotion to CPT by an SSB.

2.  The evidence of record shows the applicant requested a civilian education waiver in September 2008 that would allow him to complete the requirements for a bachelor's degree during his deployment to Iraq.  

3.  The applicant was granted a civilian education waiver, effective 29 October 2008.  The applicant and his chain of command were unaware of this fact.  Nonetheless, the approved waiver was included in the applicant's promotion packet for the FY09 DA CPT Promotion Board and he was non-selected for promotion.

4.  The applicant was deployed to Iraq from 17 October 2008 to 5 August 2009. The applicant did not complete the requirements for a bachelor's degree during the period of his deployment.

5.  The evidence of record shows that a civilian education waiver to complete the educational requirement(s) for promotion may be in effect for no more than two years after the waiver is granted.  However, the evidence of record also shows that a waiver of the educational prerequisite(s) for promotion must be requested for each promotion board.

6.  The evidence of record shows the applicant submitted a request for civilian education waiver for the FY10 DA CPT Promotion Board on 21 October 2009.  He submitted his request 12 days prior to the convening date of the board and was informed there was insufficient time to process the request for waiver to the DA promotion board.  As a result, the applicant was considered by the FY10 DA CPT Promotion Board in November 2009 as not educationally qualified.  Since he was not educationally qualified, he did not meet the criteria for selection for promotion, and he was non-selected for promotion.

7.  Records show the applicant was considered and twice non-selected for promotion to CPT.

8.  In view of the foregoing, there is no basis to correct the applicant's records to remove references that he was twice non-selected for promotion to CPT (O-3).
9.  However, had the applicant's 21 October 2009 request for civilian education waiver been timely processed and approved, it would have been included in the applicant's promotion packet and he would have met the minimum prerequisite for selection to be promoted to CPT.  Therefore, as a matter of justice, it would be appropriate to approve consideration of the applicant's records (as constituted at the time), to include an approved civilian education waiver, by an SSB under the FY10 DA CPT Promotion Board selection criteria.

10.  The evidence of record shows that the applicant planned to complete the education requirement by late 2010.  There is no evidence of record, and the applicant provides insufficient evidence, to show he completed the requirements for a baccalaureate degree within 2 years of his approved civilian education waiver (i.e., by 29 October 2010).

   a.  On 19 August 2010, the applicant indicated in his request to this board "he currently needs only 21 credit hours to complete his bachelor's degree" and "he has developed a plan to meet the requirement within 1 year" [i.e., August 2011].  

   b.  On 26 April 2011, the Chief, Personnel Policy Division, NGB, confirmed the applicant had not yet completed a baccalaureate degree.

   c.  Thus, it appears the applicant has not completed the civilian education requirement for promotion to CPT.

11.  Records show that 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  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 partial relief.  As a result, as a matter of justice, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a request for waiver of the civilian education requirement was approved prior to the convening date of the FY10 CPT DA Promotion Board.

2.  As a result of this correction, the applicant's records (i.e., promotion packet as constituted at the time), to include an approved civilian education waiver, should be considered by a Special Selection Board for promotion consideration to captain under the FY10 DA CPT Promotion Board selection criteria.

   a.  If selected, the applicant shall be promoted to captain with a date of rank/ eligibility and effective date, as determined by the appropriate Departmental officials, that is consistent with that of other officers selected under the FY10 DA CPT Promotion Board criteria, along with entitlement to all back pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion.

       (1)  In this regard, the effective date of the applicant's promotion shall not be prior to the date he met the education requirement of a baccalaureate degree that is a prerequisite for promotion to captain.

       (2)  If the applicant does not/cannot provide evidence of completion of the civilian education requirement for promotion to captain, based on the requirement to complete a baccalaureate degree within 2 years of his approved civilian education waiver (i.e., by 29 October 2010), he shall be discharged accordingly.

   b.  If not selected, the applicant shall be so notified of his two-time non-select for promotion to CPT under the FY10 DA CPT Promotion Board criteria and discharged accordingly.

3.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of references that he was twice non-selected for promotion to CPT (O-3).




      _______ _   _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)                                         AR20100020900



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020900



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1