IN THE CASE OF:
BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100022416
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 to captain.
2. The applicant states that he was never properly informed of the 2009 promotion selection board. He was also misinformed about the date by his personnel officer. He would have met the requirement for a bachelor's degree if he had been properly notified. He states that it is very unfortunate that he did receive notification of the board meeting this year (i.e., 2010) but only got informed via letter that he was passed over after the board met last year (i.e., 2009).
3. The applicant provides a copy of his college transcript showing he received a bachelor's degree on 21 May 2010.
CONSIDERATION OF EVIDENCE:
1. The applicant, an Army National Guard (ARNG) first lieutenant, was commissioned on 9 August 2003 upon completion of the Maryland ARNG Officer Candidate School. He was non-selected by the 2009 and 2010 Reserve Component Selection Boards (RCSB's).
2. An advisory opinion from the National Guard Bureau (NGB) pointed out a regulatory requirement for officers to be notified of pending mandatory promotion boards at least 90 days before the convening date. The Soldier's name was on
the distribution list for the pertinent notice for the 2009 board. However, due to the passage of time, there is no actual proof that such notice was sent.
3. NGB also noted a statutory prohibition for promoting any first lieutenant who does not have at least a bachelor's degree. He also noted that a waiver of the degree requirement could be granted to officers who had obtained their commission through the OCS system.
4. The advisory opinion was forwarded to the applicant for his response.
5. The applicant offered that NGB seemed to have been confused as to his original request. He maintained that he was actually referring to the 2010 board and maintained that, if he had been properly notified, he might have been able to obtain a waiver.
6. His transcript shows initial enrollment in 1991 and no courses completed between the spring of 2000 and the fall of 2009. He was awarded a bachelor's degree, conferred on 21 May 2010.
7. Title 10, U. S. Code, section 12205(d) authorizes the Secretary of the Army to waive the requirement to have a baccalaureate degree prior to promotion to captain for any officer who was commissioned through the Army OCS. The waiver would be made on a case-by-case basis and may continue 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. The new waiver authority has no expiration date.
8. By memorandum dated 29 May 2003, the Assistant Secretary of the Army (Manpower and Reserve Affairs) delegated to the Office of the Deputy Chief of Staff, G-1 the authority to grant waivers of educational requirements for any Reserve Component officer whose original appointment in the Army as a Reserve officer was through the Army OCS program. Waivers would be made on a case-by-case basis and would be granted only to those officers who demonstrated substantial progress towards completion of degree requirements.
DISCUSSION AND CONCLUSIONS:
1. The applicant maintains that he was non-selected for promotion because he was not properly notified and that, if he had been properly notified, he would
have met the requirement for a bachelor's degree. Alternatively, in response to the unfavorable advisory opinion, he maintains that he was actually referring to the 2010 board and that he might have been able to obtain a waiver if he had been properly notified.
2. However, contrary to the applicant's contention in his rebuttal to the advisory opinion, his application clearly referred to the 2009 promotion board
3. The applicant could not have been promoted because he lacked a bachelor's degree.
4. In light of his college transcript which spans two decades and shows a 6-year break between earning any credits, his assertions that he might have obtained a degree or that he might have obtained a waiver are not convincing. Waivers are made on a case-by-case basis and will be granted only to those officers who demonstrate substantial progress towards completion of degree requirements. Considering the applicant's 20-year effort in obtaining his degree, "substantial progress" in 2009/2010 could not be presumed.
5. Implicit in the Army's promotion system is the universally accepted principal that officers have a responsibility for their own careers. The general requirements and workings of the system are widely known and specific details such as selection board dates, eligibility requirements and promotion zones are widely published in official and quasi-official publications and official communications. Given that the applicant became a first lieutenant in 2003 he knew, or should have known, that he must complete his bachelor's degree or request a waiver prior to the 2009/2010 RCSB.
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 that 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) AR20100022416
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ABCMR Record of Proceedings (cont) AR20100022416
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