IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110012314 


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:

* a review of his 1997 non-selection for promotion to captain (CPT) and subsequent promotions since
* an adjustment of his date of rank (DOR) to CPT to 1998
* to be given a DOR to MAJ in the 2008/2009 time frame

2.  The applicant states:

* he was eligible for promotion to CPT but his academic transcripts were not reviewed despite sending three sets of those transcripts
* he provided his transcripts through the chain of command and to the U.S. Army Human Resources Command (HRC)
* he had served as a first lieutenant (1LT) for 5 years, 3 of which were command time, and he had solid officer evaluation reports (OER)
* he out-processed from the U.S. Army Reserve (USAR) in June 1998 
* his non-select memorandum arrived 2 months after he left the USAR and offered a remedy regarding academic non-qualification
* he felt he had burned bridges at the time and the system was broke; he was unsure of how much support he could receive from his chain of command
* upon discharge, he was ordered to the Retired Reserve instead of being placed in the Individual Ready Reserve (IRR) which compounded the problem
* he performed at a level that was worthy of promotion and a DOR of 3 August 1993
* 6 years later, the 84th Division amended the orders and placed him in the IRR
* he returned to the USAR in 2005 and within months he was told he was eligible for promotion to CPT
* he has completed all the requirements for promotion to major (MAJ)
* he is currently in the Active Guard Reserve (AGR) Program in a MAJ's billet and he desires to remain until his mandatory retirement date

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* Bachelor of Science diploma
* Army Training Transcript
* DA Forms 67-8 (U.S. Army OER) from 1 July 1992 to 6 January 1998
* orders to the Retired Reserve
* amendment orders to the Retired Reserve

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having prior enlisted service, the applicant was appointed as a second lieutenant in the USAR and executed an oath of office on 4 August 1990. 
His appointment memorandum and oath of office are not available for review with this case.

3.  He attended and successfully completed the Infantry Officer Basic Course from 28 July to 20 November 1991.  He was awarded a Bachelor of Science degree on 16 May 1992.

4.  He was promoted to 1LT on 3 August 1993 and he served in a variety of assignments as a detachment commander, executive officer, and company commander in various troop program units (TPU's).

5.  On 30 July 1998, he was notified by letter that he had been considered for promotion to CPT by the November 1997 Reserve Components Selection Board (RCSB) that convened on 12 November 1997, but he was not selected.  The letter alerted him to the need to complete the required civilian and/or military education.

6.  His second non-selection memorandum is not available for review with this case; however, his records indicate he was considered for promotion to CPT by the November 1998 RCSB that convened on 9 November 1998, but he was again not selected for promotion.

7.  On 21 June 1999, Headquarters, 84th Division, published Orders 172-19 ordering his release from his TPU, Company A, 2nd Battalion, 274th Regiment, 84th Division, and transfer to the USAR Control Group (Retired Reserve) effective 1 August 1999.

8.  His Army Reserve Personnel Command Form 249-E (Chronological Record of Retirement Points) shows he completed 17 years of qualifying service toward non-regular retirement at the time of his transfer to the Retired Reserve.

9.  On 10 November 2004, Headquarters, 84th Division, published 
Orders 04-315-00001 amending the orders that transferred him to the Retired Reserve to show he was reassigned to the USAR Control Group (Reinforcement or IRR).

10.  On 3 March 2005, he was reassigned from the USAR Control Group (IRR) to a TPU, the 432nd Civil Affairs Battalion, Green Bay, WI.

11.  He attended and successfully completed the Transportation Officer Advanced Course from 19 to 30 September 2005.

12.  He was issued promotion orders to CPT by the U.S. Army Special Operations Command promoting him to CPT with an effective date and DOR of 20 January 2006.

13.  He successfully attended and completed the Civil Affairs Qualification Course from 1 May to 30 June 2006.  He was subsequently transferred from the Infantry branch to the Civil Affairs branch effective 30 August 2006.

14.  On 7 June 2007, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

15.  He entered active duty on 26 November 2007 and subsequently served in Kuwait/Iraq from 2 February 2008 to 9 November 2008.  He was honorably released from active duty on 20 December 2008 to the control of the USAR.

16.  An advisory opinion was obtained from HRC on 16 November 2011.  An official recommended disapproval.  He stated:

* the applicant was twice non-selected for promotion to CPT and he was accordingly and correctly transferred to the Retired Reserve
* the applicant states he prepared for the 1997 RCSB in 1997 and made numerous attempts to include his education credentials in his records, but he does not state why he made no preparation for the 1998 board
* the law states that a special selection board (SSB) will not consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct the error or omission upon which the original board based its decision against promotion
* the applicant's DA Form 1059 was not included in his official file until 15 March 2005 and his transcripts were printed on 1 January 2002 and added to his official file on 2 September 2005

17.  The applicant submitted a rebuttal on 13 December 2011.  He stated:

* it is true that he was not selected for promotion by the November 1997 RCSB because he was not educationally qualified despite his attempts on three occasions to submit his paperwork
* the second non-selection was due to the fact that he was no longer drilling and no promotion packet was submitted
* it was not possible for him to submit a promotion packet because he had already outprocessed and he was no longer drilling
* the two-time non-select letter was never filed in his official records
* at the time, records were updated by the unit administrator and maintained by HRC; the Soldier reviewed the DA Form 2-1 (Personnel Qualification Record) at the time and had no knowledge if the DA Form 1059 was filed appropriately
* the transcripts he used to update his official file after he reentered the USAR in 2005 was the same diploma he used to update his file in 1997
* he sent all the required items to HRC and included the transcripts, DA Form 1059 for the basic course, and a copy of completion card for phase I of the advanced course
* had the documents been filed correctly, he believes he would have been selected for promotion in 1997

18.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  Paragraph 2-15b authorizes waivers for non-statutory military education requirements.  Table 2-1 provides for the time-in-grade requirements for promotion of commissioned officers.  It states that for promotion from 1LT to CPT, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 6 years.  For promotion from CPT to MAJ, the minimum number of years in the lower grade is 7 years and the maximum number of years in the lower grade is 12 years.

19.  Army Regulation 135-155 also states for a 1LT to be eligible for promotion to CPT, the officer must be awarded a baccalaureate degree from an accredited educational institution prior to the convening date of the promotion board.  This policy has been in effect since 30 September 1995.  The 1LT must have also completed the resident officer basic course for promotion to CPT.  Additionally, a CPT must have completed an advanced course prior to promotion to MAJ.

20.  Army Regulation 135-155 further states standby boards [now called SSB's] are formed to prevent any injustice to an officer who was eligible for promotion but his records through error were not submitted to a promotion selection board or contained a material error when reviewed by the selection board.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

21.  The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all current year criteria requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification and be received prior to the board convening date.  The ABCMR has the authority to grant a waiver for the civilian education for a past criterion.

22.  Title 10, U.S. Code, section 14504a, states a first lieutenant on the Reserve Active Status List of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the Reserve Active Status List of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the president approves the report of the board which considered the officer for the second time.

23.  Title 10, U.S. Code, section 14513, states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a Reserve Active Status List is required by section 14504, 14505, or 14506 of this title shall (unless the officer's separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer's Armed Force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer's Reserve appointment

24.  Department of Defense Instruction 1320.11 (SSB) states each Military Department shall use an SSB for the reasons listed in section 628(a) or Title 10, U.S. Code, section 14502(a), of reference (b) or if the decision of the original board involved a factual or administrative error, or if the board lacked some material information for consideration.  Under section 628(b) or 14502(b) of reference (b), an SSB shall not consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR on 4 August 1990.  He completed the Infantry Officer Basic Course on 20 November 1991, was awarded a Bachelor of Science degree on 16 May 1992, and was promoted to 1LT on 3 August 1993.

2.  He was considered for promotion to CPT by the November 1997 RCSB, but he was not selected for promotion due not being educationally qualified.  His non-select letter clearly alerted him to the need to be educationally qualified.

3.  He was considered by the 1998 RCSB and he was again not selected for promotion to CPT.  As required by law, he had three options:  honorable discharge, transfer to the IRR, or transfer to the Retired Reserve.   It is unclear what he elected, but the orders in his records show he was transferred to the Retired Reserve.

4.  Although the orders that transferred him to the Retired Reserve were later amended to show a transfer to the IRR, this does not change the fact that at the time he was considered for promotion in 1997 and in 1998, his records clearly showed he was not educationally qualified.

5.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known that completion of a bachelor's degree and ensuring his records were updated to reflect this degree has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones, are widely published in official, quasi-official, and unofficial publications and in official communications.

6.  The applicant's sincerity is not in question.  However, it is impossible to determine at this late date the degree of his diligence in updating his records.  In the absence of evidence to the contrary, it appears he did not take sufficient steps to prepare and ensure his records were updated to maximize his promotion opportunity.

7.  As such, there is insufficient evidence to adjust his CPT DOR or to recommend an SSB for promotion consideration to MAJ.

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)                                         AR20110012314



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ABCMR Record of Proceedings (cont)                                         AR20110012314



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