IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110009490 


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 correction of his date of rank (DOR) for promotion to first lieutenant (1LT)/pay grade O-2 from 25 February 2010 to 30 June 2009.

2.  The applicant states he was appointed as a Reserve commissioned officer on 30 June 2007.  At the time he was working on Department of State missions in Afghanistan and Iraq and had accepted a follow-on position in Alaska as a Federal Special Agent.  As a result, he was unable to immediately attend the officer basic course (OBC)/Basic Officer Leaders Course (BOLC).

	a.  He and his supervisor began planning for his attendance at the 6-month OBC/BOLC.  During this process, he encountered conflicts concerning his bonus, promotion, and career progression.

	b.  He contacted an Army staff official at the U.S. Army Human Resources Command (HRC) and was told he would be promoted effective the first day of his attendance at BOLC.  He adds this is similar to situations of the past when eligible officers were promoted once properly enrolled in a resident OBC.  He also references Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), table 2-2, note 1, that indicates "officers enrolled in a resident basic course, who are otherwise eligible, will also be considered to have satisfied the education requirements for promotion to 1LT."

	c.  He received notice from HRC that the information he was given was incorrect and he would not be promoted until his successful completion of OBC.

	d.  He met the civilian education criteria for promotion and submitted a request for waiver of the military education criteria; however, his request was denied.

	e.  While at BOLC, he discussed his situation with the Reserve liaison officer who agreed that, based on his experience, he should be promoted effective upon enrollment in BOLC.  The liaison officer contacted HRC and was told the applicant would be promoted with 24 months of time in grade (TIG), but the promotion order would not be published until he completed BOLC.  Shortly thereafter, he was told the information he was given was wrong and he would be eligible for promotion upon successful completion of BOLC.

	f.  He graduated BOLC on 25 February 2010, but his request to have his DOR adjusted was denied.

	g.  He states the process has created a disparity between him and other 1LT's in his year group.  Due to the delay in his promotion to 1LT, he was not eligible for the captain (CPT) promotion board that convened in November 2010.  He adds that had he been selected by that board, he would have been promoted to CPT with a DOR of 27 January 2011.

	h.  He asserts that he acted in good faith and with diligence in balancing his military and civilian responsibilities.  In addition, he attempted to mitigate the problem ahead of time by requesting a military education waiver.  He concludes that the delay in his promotion is an injustice.

3.  The applicant provides copies of his oath of office, two officer evaluation reports, email messages, military education waiver documents, active duty and promotion orders, an academic evaluation report, and civilian education documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant has prior honorable enlisted service in the Army National Guard from 25 September 1999 through 22 March 2002 and in the U.S. Army Reserve from 23 March 2002 through 29 June 2007.  He attained the rank of staff sergeant/pay grade E-6.

2.  A DA Form 71 (Oath of Office – Military Personnel) shows the applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT)/pay grade O-1 on 30 June 2007.

3.  HRC, St. Louis, MO, Orders T-08-939721, dated 6 August 2009, ordered the applicant to active duty for training to attend the Engineer BOLC at Fort Leonard Wood, MO, with a reporting date of 25 October 2009.

4.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant successfully completed the Engineer BOLC on 25 February 2010.

5.  HRC, St. Louis, MO, Orders B-03-001231, dated 1 March 2010, promoted the applicant to 1LT effective and with a DOR of 25 February 2010.

6.  In support of his application, he provides the following documents:

	a.  Two DA Forms 67-9 (Officer Evaluation Report) covering the periods 30 June 2007 through 29 June 2008 and 30 June 2008 through 7 May 2009 show the rater evaluated the applicant's performance and potential as "Outstanding Performance, Must Promote" and the senior rater evaluated his promotion potential as "Best Qualified" during both evaluation periods.

	b.  Email messages, dated 27 January through 6 February 2009, subject:  Orders for Engineer BOLC Reporting 5 April 2010, show:

		(1)  on 27 January, the applicant was contacted by an HRC staff member for information to process his orders for the BOLC starting 5 April;

		(2)  on 31 January, the applicant indicated "most likely I'm going to opt for June OBC";

		(3)  on 2 February, the applicant indicated that his first work day was 17 February, at which time he would discuss the matter with his supervisor;

		(4)  on 6 February, the HRC staff member informed the applicant she provided erroneous information to him regarding the effective date of promotion (i.e., OBC enrollment date versus OBC graduation date); and

		(5)  on 6 February, the applicant indicated he wanted to contact her supervisor to resolve the matter because he had made career choices based on the erroneous information she provided to him.

	c.  A letter from the applicant to the Commander, HRC, dated 20 February 2009, shows he requested a waiver of the military education requirement.  The applicant provided information on:

		(1)  his civilian and military responsibilities;

		(2)  the erroneous information he was provided concerning his promotion eligibility date; and

		(3)  the circumstances that led him to choose the June 2009 BOLC in lieu of the February or April 2009 OBC.

	d.  HRC letter, dated 31 March 2009; two email messages, dated 15 May 2009; and HRC memorandum, dated 19 May 2009, subject:  Military Education Waiver Request; show:

	 	(1)  the Chief, DA Promotions, referred the applicant's request for waiver to the Office of the Deputy Chief of Staff, G-1, Personnel Policy Integrator, for action; 

		(2)  the Personnel Policy Integrator advised that the applicant's request for waiver fell under the authority of the Chief, Office of Promotions; and 

		(3)  the Chief, Office of Promotions, informed the applicant that it was regrettable that he was misinformed about the TIG and education requirement; however, his request for waiver of the military education requirement was disapproved because there was no waiver provision authorized for lieutenants.

	e.  Thomas A. Edison State College transcripts and diploma show the applicant completed all of the degree requirements for the Bachelor of Arts degree in Criminal Justice on 4 June 2010.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions, Department of the Army Promotions, HRC, Fort Knox, KY.

	a.  The advisory official recommends the applicant's request for adjustment of his 1LT DOR be disapproved.

	b.  He cites the Army regulatory note that the applicant references and states that this exception applies to officers that are assigned to the officer active duty obligor and the Early Commissioning Program only.  The applicant was not appointed as a 2LT under either of these programs; therefore, the referenced regulatory guidance does not apply to his promotion action.

	c.  The TIG policy was changed to 18 months on 19 August 2008 by the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs.  The applicant met the TIG requirement on 29 December 2008.  However, under this policy, an officer could not be promoted prior to completion of the required military education of either OBC or BOLC.  The applicant did not complete BOLC prior to the date he met the 18-month TIG requirement; therefore, he was not eligible to be promoted at that time.

	d.  He notes that the Army regulatory guidance shows that a 2LT will have a DOR no earlier than the date he meets the TIG and promotion requirements.  On 25 February 2010, the applicant met the education requirements for promotion to 1LT when he completed BOLC and he was promoted on that date.

8.  On 16 November 2011, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.

9.  On 9 December 2011, the applicant indicated he was in the process of relocating and requested an extension of time to prepare a response.  To date [30 days later], the applicant has not provided a response.

10.  Army Regulation 135-155, chapter 2 (Promotion Eligibility and Qualification Requirements), shows in:

	a.  table 2-1 (Time in Grade Requirements – Commissioned Officers Other Than Commissioned Warrant Officers) the minimum TIG for promotion from 2LT to 1LT is 2 years and

	b.  table 2-2 (Military Educational Requirements – Commissioned Officers Other Than Commissioned Warrant Officers) that the resident OBC is required for promotion from 2LT to 1LT.  Note 6 of the table specifies that basic branch lieutenants appointed on and after 1 April 1984 are required to complete a resident officer basic course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to 1LT/O-2 effective and with a DOR of 30 June 2009 because he acted in good faith and with diligence in attempting to complete the military education requirement for promotion; however, due to erroneous information provided by Army officials, his attendance at BOLC was delayed which resulted in the delay in his eligibility for promotion to 1LT.

2.  The applicant executed an oath of office for appointment as a Reserve commissioned officer in the rank of 2LT/O-1 on 30 June 2007.

3.  The evidence of record shows the applicant was contacted by an HRC staff member on 27 January 2009 regarding his attendance at BOLC beginning 5 April.  At that time, the applicant was provided erroneous information concerning promotion eligibility (i.e., upon enrollment vice completion of BOLC).

	a.  On 31 January, the applicant indicated he would most likely attend the June BOLC; however, he would be discussing the matter with his supervisor on 17 February.

	b.  On 6 February, less than 1 week later, the HRC staff member informed the applicant she provided erroneous information to him regarding the effective date of promotion.  On that same date, the applicant asserted that he had made career choices based on the erroneous information she had provided to him.

4.  The sincerity of the applicant's contention is not in question.  However, the evidence of record shows the HRC staff member provided the applicant with the correct information about the military education requirement within 6 days of the erroneous information she provided and at least 11 days before he planned on discussing his attendance at the course with his supervisor.  Thus, the notion that the applicant missed the opportunity to be enrolled in either the April or June 2009 BOLC was due to the erroneous information provided by the HRC staff member is disingenuous because he acknowledged he did not intend to provide a decision on which course to attend until at least 17 February 2009.

5.  The evidence of record shows that, in the applicant's case, a minimum of 2 years of TIG was required for promotion to 1LT/O-1, provided he completed the military education requirement (OBC/BOLC) and was otherwise eligible for promotion.

6.  Records show the applicant satisfied the required education requirement (i.e., completion of the BOLC) for promotion to 1LT on 25 February 2010.  Records also show he was promoted to 1LT/O-2 effective and with a DOR of 25 February 2010.  Thus, there is no error or injustice in this case.

7.  Based on the available evidence and all of the foregoing, the applicant is not entitled to the requested relief.



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)                                         AR20110009490



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ABCMR Record of Proceedings (cont)                                         AR20110009490



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