IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20110016304 


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 adjustment of his date of rank (DOR) to first lieutenant (1LT) to 11 March 1999.

2.  The applicant states being selected for active duty, Signal Corps, by the November 1994 Selection and Branching Board and not having entered active duty at the time of his appointment, he fell under the definition of Officer Active Duty Obligator (OADO), as specified in Army Regulation 135-91 (Service Obligations, Method of Fulfillment, Participation Requirements and Enforcement Procedures) and, as such, he should have been promoted to 1LT at the 3-year mark as specified in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-2.

3.  The applicant provides:

* Extract of the 2005 Army Regulation 135-91
* Change 9 to Army Regulation 135-155 (April 1981)
* Appointment memorandum, dated 17 January 1996
* Request for Duty Change, dated 5 March 1996
* Army Reserve Status and Address Verification, 2001

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.  The applicant's available record shows he enlisted in the U.S. Army Reserve (USAR), Reserve Officers' Training (ROTC) program, on 4 September 1991.  He attended St. Cloud State University in Minnesota.

3.  He provides a memorandum and accompanying endorsements for a "Request for Duty Change" as follows:

	a.  Memorandum through the U.S. Army Cadet Command, Fort Monroe, VA to the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 5 March 1996, wherein the Chief, Cadet Personnel Division, recommended approval of the applicant's request to change from active duty to Reserve Forces Duty.  The memorandum also stated he was selected for active duty, Signal Corps, by the November 1994 Selection Branch Board and that due to delay in commissioning, he found other employment.

	b.  First endorsement, dated 11 March 1996, wherein the Chief, Accessions Management and Scholarship Division, U.S. Army Cadet Command, Fort Monroe, forwarded the request to the Commander, U.S. Total Army Personnel Command, Alexandria, VA.

	c.  Second endorsement, dated 15 March 1996, wherein the Chief, Accessions Branch, Department of the Army, disapproved the request.

4.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant and he executed an oath of office on 11 March 1996.  He was assigned to the USAR Control Group (Annual Training).

5.  There is no indication in the available record that shows whether the applicant was an active participant in training in any unit.  Likewise, there is no evidence of completion of the Officer Basic Course or any other military education.

6.  Orders D-10-149882, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, dated 26 October 2001, honorably discharged the applicant from the USAR effective the same date.  His rank is shown as "2LT" on the discharge orders.

7.  On 23 September 2008, he was appointed as a 2LT in the Minnesota Army National Guard (MNARNG).  He completed the Officer Basic Leadership Course on 13 April 2009 and he was promoted to 1LT on the same date.

8.  He previously submitted a request to the ABCMR for waiver of the military education requirements for promotion to 1LT (and captain (CPT)) and contended that he had moved 6 times between 1994 and 1999, but kept the ROTC chain informed of his address.

9.  On 13 April 2011, the Board denied his request for:

* A waiver of education requirements for promotion to 1LT and CPT
* Adjustment of his DOR to 1LT from 13 April 2009 to 12 September 1997
* Consideration for promotion to CPT by a special selection board

10.  Army Regulation 135-155 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.  The version in effect at the time stated for promotion from 2LT to 1LT, the minimum number of years in the lower grade is 3 years.  Additionally, an officer must meet the required educational requirements prior to being promoted (Officer Basic Course) as well as meeting the height/weight standards, Army Physical Fitness Test, and security requirements.  Change 9, dated 15 April 1981, stated that 2LTs assigned to Control Groups and officers transferred from OADO Control Group to Annual Training Control Group who are awaiting active duty or active duty for training orders are not required to meet the military education requirements for promotion.  Promotion under these circumstances does not negate the requirement to complete the basic course at a subsequent date.

11.  The 2005 version of Army Regulation 135-155 defines an OADO as an officer appointed in the USAR from the ROTC program who is obliged to serve on active duty or on active duty for training and does not enter active duty at the time of appointment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's complete service records are not available for review with this case.  The available record shows he was appointed as a 2LT in the USAR on 11 March 1996 and he was assigned to the USAR Control Group (Annual Training).

2.  Although he contends he kept ROTC officials informed of his address, there is no evidence he did the same with the officials who would have managed his career, the U.S. Army Reserve Personnel Center in St. Louis.  As such, he never completed the required basic officer course.

3.  There is no indication in the available records that confirms he completed the military education requirements or any other mandatory requirements that would have qualified him for promotion to 1LT.  He was ultimately discharged on 26 October 2001.

4.  It is clear that his failure to exercise due diligence contributed greatly to his non-selection for promotion.  This, coupled with the lack of documentary evidence, makes it impossible for the Board to render a favorable decision in his case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20110016304



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ABCMR Record of Proceedings (cont)                                         AR20110016304



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