IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120004496 


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 promotion reconsideration to major (MAJ) by a special selection board (SSB) under the 2011 year criteria and removal of his non-selection for promotion letter.  

2.  The applicant states:

	a.  He has exhausted all lower level means to have an SSB.  He received all documents from his commander to include a letter from Lieutenant Colonel (LTC) Hxxxxx certifying that he mailed (United States Postal Service (USPS)) his educational waiver to the U.S. Army Human Resources Command (HRC) prior to the convening date of the 2011 board.  His military educational waiver submitted into his record would have allowed him to be properly promoted to major in 2011. 

	b.  He also needs his non-selection letter removed from his official file.  He met all requirements for promotion in 2011.  All of the rules were followed and all documentation was submitted timely. 

3.  The applicant provides:

* DA Form 2792 (Demographics/Certification) pertaining to his daughter
* MPCCC-RC (Military Police Captains Career Course-Reserve Components) Phase I Fiscal Year (FY) 11 and MPCCC-RC-Phase III FY11 completion certificates
* Request for Waiver of Military Education Requirements to the 2011 MAJ RC Army Promotion List (APL) memorandum
* email from the Commander, Headquarters (HQ), USSOCOM (United States Special Operations Command)
* Military Personnel (MILPER) Message Number 10-329 (FY11 MAJ promotion board)
* MPCCC DA Form 1059 (Service School Academic Evaluation Report) and diploma
* Request for Waiver of Military Education Requirements memorandum
* email correspondence between himself and a staff member of the Officer Promotions, Special Actions, HRC

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the Florida Army National Guard, as a second lieutenant, on 17 July 1999, with prior enlisted service.  He was promoted to captain on 17 August 2005.

2.  On 21 January and 14 February 2011, he completed the MPCCC-RC Phases I and III FY 11 of the MPCCC.

3.  In a Request for Waiver of Military Education Requirements to the 2011 MAJ RC APL memorandum, dated 15 February 2011, he requested an exception to policy requiring completion of the CCC to be considered for promotion by the 2011 board.  He stated:

   a.  Currently, he had completed the MPCCC Phases I and III.  However, due to being placed on permanent profile after he contracted a serious disease in Iraq in 2005 (line of duty completed in 2007) he had been unable to enroll and complete Phases II and IV.  He was currently scheduled for those phases in the summer of 2011 and his profile was currently being reviewed by the Army Reserve Command Surgeon to allow him to attend and the complete the CCC.
   
   b.  Also, for the past 2 years his family had undergone extreme hardships due to his daughter being seriously ill and his family continued to make many sacrifices to ensure she gets the best of care.  He had made every reasonable attempt within the mitigating circumstances to complete the education requirements required for promotion.

4.  In an email, dated 22 February 2011, the Chief, Army Personnel, HQ, USSOCOM, advised the applicant of his endorsement for a military educational waiver and that it would be mailed and postmarked on that date.

5.  MILPER Message Number 10-329, dated 17 December 2010, announced the policy, criteria, and zones of consideration for the FY11 MAJ Army Promotion List Competitive Category Promotion Selection Board.  The MILPER Message stated:

	a.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), the military education requirements for promotion selection to MAJ are outlined in Table 2-3.  Military and civilian education must be completed no later than the day before the board convenes (8 March 2011).  The military education requirement is completion of any officer advanced course (OAC) or CCC.  The evidence of completion is the DA Form 1059.  Officers not educationally qualified will not be selected for promotion.

	b.  The Chief, Department of Army (DA) Promotions, is the approval authority for all requests for exception to non-statutory promotion requirements in order to be granted a military education waiver for promotion.  CPTs must have completed at a minimum the non-resident portion of the CCC and be scheduled for the resident phase.

   c.  Military education requests for hardship or other justification for an exceptional nature meriting favorable consideration must include an endorsement from the chain of command.  

6.  He was not considered for promotion to MAJ by the 2011 Army RC Mandatory Selection Board that convened on 8 March 2011.

7.  He completed the MPCCC on 22 July 2011.

8.  In a memorandum, dated 1 December 2011, the Chief, Army Personnel Branch, USSOCOM, stated:

   a.  He was certifying that a request for an education waiver for the 2011 MAJ promotion board was mailed to HRC, Fort Knox, KY, from HQ, USSOCOM, postmarked on 22 February 2011.  By no fault of the applicant, the request for an education waiver was not received and included in his promotion file.  

	b.  The applicant was not selected for MAJ by the 2011 promotion board; however, he feels that if the education waiver request had been included and reviewed by the promotion board, the outcome might have been different.  Additionally, the applicant is requesting an SSB promotion reconsideration in accordance with Army Regulation 600-8-29 (Officer Promotions) [sic] to have a promotion board consider his qualifications which include his requests for a military education requirement waiver.
9.  In an email, dated 10 January 2012, a staff member of the Officer Promotions, Special Actions Branch, HRC, advised the applicant of the following:

	a.  After reading his earlier email requests and their response, he felt there was still some confusion on how he was to proceed with his request.

	b.  A waiver for military education was never granted for him for the FY11 MAJ RC board.  A waiver for that board could only be approved by HRC, Officer Promotions, Special Actions, before the convening date of the board which was on 8 March 2011.  Everything from his chain of command was just a request for the waiver, no military education waiver existed for him for that board.  That rendered him not educationally qualified (military) for the FY11 MAJ board.

	c.  In order to be granted an SSB for a previous board (FY11 MAJ), he had to meet the conditions set by the convening date of the board (8 March 2011).  On that date he was not educationally qualified (military), he did not have an approved waiver; therefore, he did not qualify for an SSB for that board.

	d.  Because his chain of command did submit for a waiver and he had the traffic and documentation to that effect, he could submit his case to the Army Board of Correction of Military Records (ABCMR).  The Board will determine with an advisory opinion whether or not an SSB is warranted.  Again, his only recourse to get an SSB for the FY11 MAJ board is through the ABCMR.

10.  In an advisory opinion, dated 19 April 2012, the Chief, Officer Promotions, Special Actions Branch, HRC, stated:

   a.  Based on a review of the information provided, it was the opinion of that office that the applicant's request for reconsideration of promotion to MAJ under the FY2011 criteria be denied.
   
   b.  Their office could not affirm that the applicant's request for a military education waiver was ever received by HRC.  The email reply sent to the applicant from LTC Hxxxxx on 22 February 2011 stated that it would be mailed.  There are no documents that confirm tracking of the request nor was there any email traffic that affirmed who mailed the waiver request, what date it was mailed, or what time it was mailed.  In order for their office to grant a military education waiver retroactively, subsequent to an SSB, the applicant must provide proof of the waiver delivery to HRC or per directive of the ABCMR.

11.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 2 May 2012.  In his response, dated 29 May 2012, the applicant stated:

	a.  He was again forwarding the memoranda dated 22 February and 1 December 2011.  He understands that the military education waiver was not received and therefore he was not selected for the 2011 MAJ board.  His chain of command has admitted the messaging and tracking error had occurred and that he should not be faulted in the 1 December 2011 memorandum.

	b.  From 2005 until 2009, he served as a Special Forces officer at USSOCOM, an active duty war fighting command.  He is not a typical reservist.  He was not afforded opportunities to attend military education or pursue his career, he was only allowed to work on the war effort, not pursue education between 2004 until 2009.  In 2009, he was offered an opportunity to move to USSOCOM and work at the Interagency Task Force, again another war fighting command.  He was assigned to an interagency assignment and was not allowed to pursue military education through the slow RC officer education system.

   c.  His daughter was born in 2009 and was (is) severely developmentally delayed.  In May, she was diagnosed with cerebral palsy and it is not known if she will live long.  He was diagnosed with traumatic brain injury from ground combat and placed on a profile that required him to go through the Medical Review Board all while enrolling in the RC CCC, which he did.  He managed to get the profile downgraded prior to the 2011 promotion board.  His efforts and sacrifices have been immense over the past few years to ensure that he remained on track with his fellow officers/peers and he made every effort to be promotable for the 2011 promotion board and worked very hard to meet all of the time-line suspense's.

	d.  He provides two duty performance memoranda and a summary of his daughter's doctor's visit. 

12.  Army Regulation 135-155 specifies that in order to be promoted to MAJ an individual must have completed 7 years of time in grade as a CPT and the required military education on or before the convening date of the respective promotion board.  It also states 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, Officer 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.  

14.  Army Regulation 600-8-29 prescribes the policies and procedures governing promotion of Army commissioned officer on the active duty list.  The regulation does not govern the promotion of Reserve commissioned officers.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed Phases I and III of the MPCCC in January and February 2011.  He authored a request to HRC for an education waiver stating extreme hardships due to his daughter being seriously ill and his deployment.  On 22 February 2011, his command endorsed that request. He was not selected for promotion to MAJ by the 2011 board due to being not educationally qualified.  He successfully completed the course in July 2011.  

2.  The HRC, St. Louis, advisory opinion indicates that an educational waiver request was never received.  HRC also advised the applicant that a waiver for the 2011 board could only be approved by HRC before the convening date of the board which was on 8 March 2011.  He was further advised he could apply to the ABCMR.

3.  The evidence shows he believed he was requesting a waiver.  His chain of command also believed he would be granted a waiver due to the circumstances. It appears that due to his daughter's illness and his mobilization and deployment he did not purposefully neglect to complete the required military education for promotion opportunity to MAJ.  A review of his records revealed a pattern for completion of the required military education in a timely manner for promotion opportunity.  

4.  In view of the circumstances in this case, it would be equitable to show that the applicant was granted a military education waiver and that he be granted promotion reconsideration to MAJ by an SSB under the 2011 year criteria.  

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant's request for the required military education waiver was approved prior to the convening date of the 2011 major RCSB.

2.  That, following administrative implementation of the foregoing, his records be submitted to a duly-constituted SSB for promotion consideration to major under the 2011 year criteria.

3.  If selected for promotion, the applicant’s records should be corrected by showing he was promoted to major on his date of eligibility, as determined by appropriate Departmental officials, using the 2011 year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion.

4.  If not selected, the applicant should be so notified.



      __________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)                                         AR20120004496





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ABCMR Record of Proceedings (cont)                                         AR20120004496



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