IN THE CASE OF:	  

		BOARD DATE:	    21 August 2012

		DOCKET NUMBER:  AR20120003054 


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, promotion reconsideration to captain (CPT) by a special selection board (SSB).

2.  The applicant states:

	a.  He was discharged after his second non-selection for promotion to CPT. When the first board convened he had not completed the required education as he was serving in Iraq.  He had no knowledge of the board and as such did not apply for an educational waiver.  When the second board convened, he had finished the classes for his degree, but his degree had not been conferred.  He applied for and received an educational waiver, but was not selected.  He was coded as "no reason given."

	b.  He feels the situation which occurred during his first board was out of his control as he was deployed to Iraq.  He attempted to attain his degree, but the work load during the deployment was too great.  At the time of the second board, he was awaiting the conferring his degree and had been awarded an educational waiver.  Again he was not selected.  He had been in a CPT's position for 5 years at this point.  He feels he should be reconsidered for promotion.

3.  The applicant provides:

* active duty orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* official transcript
* recommendation for SSB memorandum
* letters to two Members of Congress

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed as a second lieutenant in the New York Army National Guard (NYARNG) on 7 August 2004 with prior enlisted service.  He was promoted to first lieutenant (1LT) on 7 August 2006.

2.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 6 June 2008.

3.  He was considered and not selected for promotion to CPT by the 2009 and 2010 Reserve Components Selection Boards (RCSB's) that convened on 3 November 2009 and 1 November 2010.  The specific reasons for his non-selections were not divulged by the boards.

4.  He was honorably released from active duty on 10 May 2009 for completion of required active service.

5.  He provides a copy of his Excelsior College official transcript that shows a Bachelor of Science degree was conferred on 21 January 2011.

6.  On 16 March 2011, he was notified of his second non-selection for promotion and required separation from the NYARNG.

7.  In a memorandum to the National Guard Bureau (NGB), dated 6 August 2011, the NYARNG requested retention of the applicant until a determination in his SSB case was received.  The NYARNG official stated the applicant failed to earn his degree in a timely manner as a result of numerous circumstances beyond his control.  This included a deployment to Iraq.

8.  On 17 August 2011, NGB disapproved the NYARNG's request for an exception to policy to retain the applicant until a determination of his Army Board for Correction of Military Records petition.  NGB stated that applying to the Board did not stay other proceedings.

9.  He was honorably discharged from the NYARNG in the rank of 1LT on 1 October 2011.

10.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB, dated 16 February 2012.  The advisory official reiterated the applicant's request.  The official stated:

   a.  The applicant was considered for promotion by the November 2009 CPT promotion board.  He was not selected for promotion due to "not being educationally qualified."  The applicant was considered a second time for promotion by the November 2010 board.  An educational waiver was awarded to him prior to the second board because he was awaiting conferral of his diploma.  Regardless of the waiver being granted, the applicant was still not selected for promotion to CPT a second time due to "no reason given."  As a result, in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5(a), the applicant was separated from the NYARNG on 1 October 2011.

	b.  From June 2008 through July 2009, the applicant was deployed as a commander in support of contingency and support operations in Baghdad, Iraq.  During the 90-day demobilization process the applicant was working through several Soldier and family issues inherent in the position as a commander which took precedence from his personal objectives of promotion.

	c.  The applicant believes his case warranted consideration by an SSB for the 2010-year criteria because he was not given the opportunity to request an educational waiver in a timely manner.  In addition, the Army invested considerable resources in training this officer to become an aviator.  The applicant received his Bachelor of Science degree on 21 January 2011 and has the support of the 42d Infantry Division Commander to seek an SSB and reinstatement.

	d.  According to the Officer Policy Branch, in 2009 the officer promotion rate from 1LT to CPT was 90 percent.  Furthermore, based on similar cases, if the officer had obtained an educational waiver for his first board, it was likely he would have been selected for promotion to CPT.

	e.  Based on the circumstances surrounding the applicant's inability to submit a waiver, NGB recommended his consideration by an SSB under the 2009-year criteria.  The State concurs with this recommendation.

11.  On 18 February 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies that promotion consideration/
reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  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.

13.  Army Regulation 135-155 further specifies that the Chief, Department of the Army Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education) and that requests must contain complete justification and be received prior to the board convening date.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant incurred numerous issues, to include a deployment to Iraq and demobilization duties as a commander, which prevented him from obtaining a degree in a timely manner.  He was considered and not selected by the 2009 and 2010 RCSB's.  His Bachelor of Science degree was conferred on 21 January 2011.  He was awarded an educational waiver prior to the convening date of his second board because he was awaiting conferral of his diploma.  However, he was not selected for promotion to CPT.

2.  In view of the award of his degree and the educational waiver and the presumption his first non-selection could have been based on his records not showing he was educationally qualified at the time, there is a reasonable chance he would have been recommended for promotion to the next higher grade.  It appears he was not able to obtain an educational waiver in a timely manner for the 2009 board through no fault of his own.

3.  It appears that due to deployment and demobilization duties he did not purposefully neglect to complete the required military education for promotion to CPT in 2009.  Considering all the circumstances of this case and the support of NGB and the NYARNG, it would be equitable to show he is eligible for promotion reconsideration to CPT by an SSB under the 2009-year criteria.

4.  Without evidence to the contrary, it does not appear his second non-selection for promotion to CPT was because he was not educationally qualified, as his record was coded "No reason given."  Therefore, he is not entitled to promotion reconsideration to CPT by an SSB under 2010-year criteria.

5.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__ __  ___X____  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all of the State Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  showing he was granted an educational waiver for the 2009 year criteria and ensuring that his military personnel file is complete and accurate and includes that waiver;

	b.  following administrative implementation of the foregoing, that his records be submitted to a duly-constituted SSB for promotion reconsideration to CPT under 2009-year criteria;

	c.  if selected for promotion, that his records be corrected by showing he met all the eligibility criteria for promotion (e.g., being assigned to a CPT's position) effective the date of the release of the applicable promotion selection board, promoting him to CPT with the appropriate date of rank, and paying him any associated back pay and allowances; and

	d.  if selected for promotion and he meets all prerequisites for promotion, that his records be further corrected to show:

		(1)  his discharge from the NYARNG is void and of no force or effect,

		(2)  he was credited with qualifying service for Reserve retirement for his respective retirement years from the dates of his now-voided discharge to the date of his return to the active Reserve,

		(3)  that an adequate explanation be placed in his records to show the gap in his officer evaluation reports from the dates of his now-voided discharge to the date of return to an active Reserve status was not caused by any fault on his part and to ensure that he is not prejudiced thereby in the consideration of any future personnel actions, and

		(4)  that all documents related to his now-voided non-selection for promotion and his discharge be expunged from his records; and

	e.  if not selected by the duly-constituted SSB, he be so notified.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion consideration to CPT by an SSB under the 2010-year criteria.



      _______ _   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)                                         AR20120003054



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ABCMR Record of Proceedings (cont)                                         AR20120003054



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