IN THE CASE OF:	  

		BOARD DATE:  14 June 2012

		DOCKET NUMBER:  AR20110021577 


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, reinstatement in the U.S. Army Reserve (USAR) with award of back pay and allowances from the date of his discharge to the present.

2.  He states he has only received one non-select letter, dated 1 May 2010, for the board convening 3 November 2009.  He had met the education requirements prior to that time.  He received orders discharging him due to his being passed over for promotion to captain a second time.  However, the 2012 Captain Army Promotion List (APL) board had not yet convened.

3.  He provides:

* Bachelor of Arts diploma
* DA Form 1059 (Service School Academic Evaluation Report) for the Transportation Officer Basic Course
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 1059 for the Introduction to Defense Transportation Course
* DA Form 87 (Certificate of Training) for the "FORSCOM USAR CO/DET PRE-COMMAND CRS"
* memorandum of Notification of Non-Selection for Promotion (1st Time) 
* DA Form 67-9 (Officer Evaluation Report)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Headquarters, U.S. Army Reserve Command  (USARC) 
Orders 11-292-00011
* DA Form 2-1 (Personnel Qualification Record)
* My Board File printout
* Document about Observations at Youth Development Institute

CONSIDERATION OF EVIDENCE:

1.  His military records show he was appointed in the USAR, Transportation Corps, as a second lieutenant effective 12 May 2005.  He was promoted to the rank of first lieutenant with an effective date and date of rank of 27 May 2007.

2.  His Bachelor of Arts diploma shows he received his bachelor's degree on 12 May 2005.

3.  A DA Form 1059 contained in his records shows he successfully completed the Transportation Officer Basic Course on 20 December 2005.  This document was added to his interactive Personnel Electronic Records Management System (iPERMS) records on 10 January 2006.

4.  Headquarters, USARC notified him by memorandum that he was considered for promotion to captain by the Army Reserve Components (RC) Mandatory Selection Board that convened on 3 November 2009, but he was not selected.  The reason given was that the records review did not indicate he had completed the required civilian and/or military education by the day before the date the board convened.  The memorandum stated if he had completed the education requirements not later than the day before the selection board convened, he could request reconsideration by applying through command channels. 

5.  A review of his records indicates his Bachelor of Arts diploma was added to his records in iPERMS on 22 October 2010.

6.  The applicant's record is also void of documentation which shows he requested to be reconsidered for promotion to captain following receipt of the first letter of non-selection.

7.  The published board results show he was considered and not selected for promotion to captain by the Fiscal Year (FY) 2011 Reserve Components Promotion Selection Board (RCSB) that convened on 2 November 2010; however, the board did not divulge the reason(s) for his non-selection.

8.  His records contain two DA Forms 67-9 (Officer Evaluation Report (OER)) for the rating periods 1 December 2007 through 23 July 2008 (a referred report) and 1 December 2008 through 30 November 2009 that show he was not recommended for promotion by either his rater or senior rater.
9.  An entry in the Integrated Web Services shows he was passed over twice for promotion.   The Soldier Management System contains the remark, entered on 2 March 2011, that the applicant's local clearance and access was suspended and that his current security eligibility is "none."

10.  During the processing of this case, a member of the Board staff contacted the U. S. Army Human Resources Command, Office of RC Promotions to determine whether a notification memorandum of non-selection would have been sent to the applicant due to his second non-selection.  The response was that the data base shows he was a second time non-select and that a notification memorandum is no longer sent to second time non-selectees. 

11.  He was discharged from the USAR effective 1 November 2011, under the provisions of Army Regulation 135-175 (Separation of Officers), based on being twice non-selected for promotion to captain.

12.  In an advisory opinion, dated 31 January 2012, the Chief, Personnel Management Division, USARC, recommended disapproval of the applicant's implied request for reinstatement or revocation of his discharge based on the following:

	a.  The applicant was non-selected for promotion for the first time by the FY 10 Captain APL RCSB Non-Active Guard Reserve.  The reason for the non-selection was the applicant was not educationally qualified.

	b.  The applicant was non-selected for promotion for the second time by the FY11 Captain APL RCSB Non-Active Guard Reserve.  The board did not provide a specific reason for non-selection which meant he was determined educationally qualified by that board.

   c.  The opinion also stated that U.S. Code, Title 10, Section 14504, states officers twice non-selected for promotion to captain will be removed from the Reserve Active Status List on the first day of the seventh month after the President approves the board unless otherwise selectively continued (SELCON), unless the officer is retained under another provision of law.  Retention is authorized for Soldiers selected for SELCON or those who have at least 18 but less than 20 qualifying years for retired pay at age 60 (Reserve Sanctuary).  SELCON for first lieutenants is only authorized for officers who have not completed their baccalaureate degree and only until the end of their statutory obligation.
   
   d.  The applicant possessed a baccalaureate degree; therefore, he was not eligible for SELCON.  Additionally, he had only completed 7 qualifying years for retired pay, which made him ineligible for Reserve Sanctuary.  Since there was no other provision of law to authorize retention, the applicant was discharged in accordance with Army Regulation 135-175, paragraph 4-4a(5)(b) and U.S. Code, Title 10, Section 14504, for non-selection for promotion after second consideration.
   
   e.  The opinion further indicated the applicant may be eligible for a promotion reconsideration board because he provided evidence indicating he was educationally qualified at the time he was considered by the FY 2010 Captain APL promotion board.  It was also recommended that his case be forwarded to the Office of Reserve Promotions, Fort Knox, KY for further determination.  
   
13.  The advisory opinion was forwarded to the applicant for acknowledgement and possible rebuttal on 31 January 2012.  He did not respond.

14.  Army Regulation 135-175 prescribes the policies and procedures for the separation of RC Officers.  Chapter 4, paragraph 4-4a(5), states an officer in the grade of first lieutenant, captain, or major, who has completed their statutory military service obligation, will be discharged for failure to be selected for promotion after the second consideration by an RCSB.  

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for selecting and promoting commissioned officers of both Army National Guard of the United States (ARNGUS) and USAR.

	a.  To qualify for selection, ARNGUS and USAR officers in the rank of first lieutenant must have completed the resident officer basic course.

	b.  Effective 1 October 1995, no person may be selected for promotion to the Reserve grade of captain 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.

	c.  Mandatory selection boards will convene each year.  These boards will consider ARNGUS and USAR officers on the Reserve Active Status List for promotion to captain through lieutenant colonel.

	d.  First consideration for promotion will occur well in advance of the date the officer will complete the time-in-grade requirements in tables 2-1 or 2-3, as appropriate.

	e.  Those officers noted in d, above, who were not selected for promotion on the first consideration, and who remain in an active status, will be reconsidered by the next board considering their grade and/or branch.

	f.  A first lieutenant on the Reserve Active Status List who has failed of selection for promotion to captain for the second time and whose name is not on a list of officers recommended for promotion to captain, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay.

	g.  Officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  To determine if there is an error in the promotion file, the officer may request, within 2 years of the board recess date, a copy of his or her file, as considered by the mandatory Reserve of the Army selection board.

	h.  Material error is defined as one or more errors of such a nature that in the judgment of the reviewing official or body may have caused an individual’s nonselection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1.  He implies he was considered and non-selected only once which was by the 3 November 2009 board, with the next board being November 2011.  However, an APL Board was convened on 2 November 2010.  He was also not selected for promotion to captain by this board.

2.  His contention that he had met the requirements to be promoted to captain prior to the convening of the 3 November 2009 board has been noted.  However, evidence shows his baccalaureate degree was added to his iPERMS record on 22 October 2010, nearly 1 year after this board convened.

3.  It appears he failed to exercise reasonable care by which he should have forwarded his civilian education to his iPERMS/board file prior to the convening of the 3 November 2009 promotion board.  Furthermore, there is no evidence he requested reconsideration for promotion after he was not selected by the 3 November 2009 board.  In addition, it appears the lack of evidence of his civilian education in his promotion file does not appear to have been a materiel error as that board would also have seen his 23 July 2008 referred report which would have resulted in a reasonable chance that the applicant would not have been recommended for promotion anyway.

4.  With respect to the second promotion non-selection, promotion boards are not required to divulge the reasons for non-selection of an officer to the higher grade with the exception of non-completion of military and/or civilian education.  Promotion boards generally use the total-person concept and select the best qualified individuals for promotion.  It is not known if the applicant's promotion file was not sufficiently competitive or if other officers within the population considered by those boards were more competitive.  However, it is highly unlikely that he would have been selected for promotion due to his rater and senior rater recommending he not be promoted.

5.  His baccalaureate degree was added to his iPERMS record on 22 October 2010 and he met the education eligibility requirements prior to the 2 November 2010 board.  As such, evidence indicates the applicant was fairly considered for promotion to captain by both the 2009 and 2010 RCSB's and twice not selected.  Based on his two non-selections for promotion to captain, he was discharged from the USAR.

6.  In view of the foregoing, there is also an insufficient basis for granting the applicant's request for reinstatement in the USAR with award of back pay and allowances from the date of his discharge to the present. 

7.  Notwithstanding the advisory opinion, which indicates his case should be forwarded to the Office of Reserve Promotions for further determination of his eligibility for reconsideration under the FY 10 Captain APL promotion board criteria; there is insufficient evidence to show a material error occurred which would warrant a promotion reconsideration board.
 
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)                                         AR20110021577



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ABCMR Record of Proceedings (cont)                                         AR20110021577



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