BOARD DATE: 31 January 2013
DOCKET NUMBER: AR20110022803
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 captain (CPT) in the Georgia Army National Guard (GAARNG) to April 2009.
2. The applicant states the promotion board for CPT was held in November 2008. His DOR to first lieutenant (1LT) was 17 August 2004 and this would have been his second board. He submitted a civilian education waiver because he was taking the last 8 hours to complete his bachelor degree in Business Administration. He also transferred from the Florida ARNG (FLARNG) to the GAARNG. The results of this board were released in March 2009 and his name was not among those selected for consideration. He then submitted an application through his chain of command to this Board but for some reason his application was lost.
3. The applicant provides a copy of the request for civilian education waiver.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was born on 16 October 1975.
2. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the California ARNG (CAARNG) and executed an oath of office on 17 August 2002. He was promoted to 1LT on 17 August 2004.
3. He entered active duty on 26 September 2004 and subsequently served in Kuwait/Iraq from 28 January 2005 to 12 January 2006. He was honorably released from active duty on 1 February 2006.
4. He also entered and served on active duty from 2 February 2006 to 25 July 2007.
5. On 1 November 2007, he transferred from the CAARNG to FLARNG.
6. On 17 February 2008, he was notified that he was considered for promotion to CPT by the 2008 Army Promotion List mandatory board but he was not selected.
7. On 25 June 2008, he transferred from the FLARNG to the GAARNG.
8. He submitted a memorandum, dated 15 August 2008, through his chain of command to the U.S. Army Human Resources Command requesting a waiver of statutory education requirements. However, it is unclear if his request was submitted or acted upon.
9. He entered active duty on 10 April 2009 and subsequently served in Afghanistan from 26 May 2009 to 2 April 2010. He was honorably released from active duty on 26 May 2010.
10. On 18 September 2009, by memorandum, he was notified of the upcoming 2009 promotion board to CPT. This memorandum alerted him to the requirements and/or importance of ensuring his records were updated.
11. It is unclear if he was considered or selected for promotion to CPT by the 2009 board.
12. On 8 April 2010, he was notified of his eligibility for promotion to CPT and on 30 April 2010, he requested a delay in promotion until 13 November 2011.
13. He entered and served on active duty from 13 March 2011 to 17 August 2011.
14. He was ultimately promoted to CPT with a DOR of 14 July 2010 and extended Federal recognition for this promotion effective 14 July 2010.
15. An advisory opinion was obtained from the National Guard Bureau (NGB) on 10 January 2013 in the processing of this case. An NGB official recommended disapproval of his petition as education waivers were not accepted for the 2009 Army promotion List board as announced by an official Army message. The official stated:
a. In a memorandum, dated 15 August 2008, to HRC, the applicant requested a waiver of statutory education requirements for promotion to CPT. At the time, he was taking his final eight credit hours needed for his bachelor's degree. He suggests that he completed his degree February 2009; however, he did not receive his diploma until May.
b. Title 10, U.S. Code, section 12205 states, "No person may be appointed to a grade above the grade of first lieutenant in the Army Reserve, or be federally recognized in a grade above first lieutenant as a member of the Army National Guard unless he was awarded a baccalaureate degree from a qualifying educational institution. A qualifying institution is an educational institution that is accredited. This statutory provision applies to active duty Other Than Regular Army (OTRA) officers."
c. While the above regulation, as well as National Guard Regulation (NGR) 600-100, states that education waivers are not possible, [Applicant] is correct in his assertion that they are. Section 512 of the National Defense Authorization Act for FY02 authorizes the Secretary of the Army to grant education waivers. Section 512 of the National Defense Authorization Act for FY02 states in part, "the Secretary of the Army may, on a case-by-case basis, waive the baccalaureate degree requirement of 10 USC 12205 (a) for any officer who was commissioned through the Army Officer Candidate School. The waiver may be in effect for no more than 2 years after the waiver is granted. Upon completion of the baccalaureate degree, officers must provide documented proof to their branch assignment officer. Documented proof of a baccalaureate degree must be an official transcript. 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 and is now codified as 10 USC 12205(d)."
d. While the above cited act authorizes education waivers, the applicant's packet was to be presented at the FY09 Reserve Component (RC), Captain Army Promotion List (APL) Board in which waivers were specifically addressed and not authorized in Military Personnel (MILPER) Message Number 08-198, Subject: Fiscal Year 2009, Reserve Component, captain (CPT), Army National Guard of the United States (ANGUS), Army Reserve Active Guard Reserve (AR AGR), and Army Reserve Non-Active Guard Reserve (AR NON AGR), Army Promotion List Competitive Categories Promotion Section Boards, Section 1(F) states in part, "... lAW Director of Military Personnel Management Policy memorandum dated 31 August 2006, Subject: Reserve Component Promotion Board Military Education Waiver Guidance, there will be no waivers for this board and no below the zone consideration." Considering the applicant did not meet the education requirements at the time the board met, his packet was pulled from consideration. This action was correct based on MILPER message 08-198.
DISCUSSION AND CONCLUSIONS:
1. The law requires a baccalaureate degree from a qualifying educational institution for an ARNG/Army Reserve officer's appointment grade above the grade of first lieutenant, or be federally recognized in a grade above first lieutenant as a member of the ARNG. However, the Secretary of the Service may grant an education waiver.
2. During the 2009 promotion board, HRC announced via a MILPER message that waivers were not authorized for that board. Since the applicant did not meet the education requirements at the time the board met, his packet was pulled from consideration. There is neither an error nor an injustice.
3. In view of the foregoing evidence, he 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 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) AR20110022803
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