IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20120018453 


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 correction of his military records to show he was reinstated as a commissioned officer in the U.S. Army Reserve (USAR).

2.  The applicant states he volunteered to serve a 3-year active duty tour from June 2009-2012.  While serving on active duty with the 3rd Brigade Combat Team (BCT), 101st Airborne Division he received notification he was not selected for promotion to captain (CPT) by the fiscal year (FY) 2011 CPT Army Promotion List (APL) Department of the Army (DA) Promotion Selection Board due to his not having completed his Bachelors Degree.

	a.  He notified his branch manager who told him not to worry because he was on active duty and no adverse actions would occur.

	b.  He was placed before the FY 2012 CPT APL DA Promotion Board and was not selected for promotion.  He was enrolled in his last semester of college in October and was to receive his bachelor's degree on 17 December 2011.

	c.  The 3rd BCT commander had approved an education waiver; however, the waiver was not accepted by the U.S. Army Human Resources Command (HRC) because he was not an OCS (officer candidate school) commissioned officer.

	d.  He is disputing his separation because he was on active duty serving in Afghanistan when the promotion process changed in June 2010.  It was nearly impossible to finish 60 credit hours of school while serving as a military police (MP) platoon leader in Afghanistan.  
	e.  He did complete his degree while still on active duty.

3.  The applicant provides:

* college transcripts from DeVry University, Addison, IL, printed 7 March 2012
* Officer Evaluation Reports (OER) for the periods ending 4 February 2010, 5 May 2010, 5 May 2011, and 22 March 2012
* his discharge orders

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the USAR on 8 November 1999.  His military service obligation (MSO) date was established as 7 November 2007.  He was discharged from an enlisted status on 2 April 2008.

2.  On 3 April 2008, he was commissioned a second lieutenant (2LT) in the USAR.  On 15 June 2009, he completed a period of 6 months and 15 days of active duty to complete the MP Basic Officer Leadership Course (BOLC) 
Phase III.

3.  He was ordered to active duty to report 16 June 2009 for 1095 days with an end date of 12 June 2012.  His orders stated he was to remain on the Reserve active status list (RASL).  He was promoted to first lieutenant (1LT) on 
2 October 2009.  

4.  On 28 January 2010, the Assistant Secretary of the Army (Manpower & Reserve Affairs) directed a temporary adjustment to the zones of consideration to promote USAR 1LT's to CPT.  The temporary adjustments affected the CPT APL DA Promotion Boards for FY 2010 through FY 2016.  The adjustments for the 
FY 2011 and FY 2012 boards were:

Board
Convening date
Primary zone range
FY 2011
1 November 2010
1 September 2007
31 December 2009
FY 2012
1 November 2011
1 January 2010
30 November 2010
5.  A review of the applicant's HRC transaction history shows:

	a.  On 6 July 2010, he contacted his branch manager and indicated he was on active duty for operational support (ADOS) until June 2012 and that he would return from Afghanistan (tentatively) in February 2012.  He needed to finish his bachelor's degree, needing approximately 60 credit hours to finish.  He asked what options did he have and could he qualify for the Degree Completion program while he was on ADOS orders.

	b.  On 6 July 2010, his branch manager recommended the applicant look into colleges with online degree opportunities and work towards completing the 
60 hours before the CPT Board/2012 timeframe.

6.  A memorandum from the 81st Regional Support Command, dated 20 May 2011, subject:  Notification of Non-Selection for Promotion (1st Time), notified the applicant that he had been non-selected for promotion to captain.  The records reviewed by the selection board showed he had not completed the required civilian and/or military education by the day before the date the promotion board convened on 2 November 2010.  He was advised to contact his personnel management officer for assistance and advice for improving his potential for promotion.  He was informed that officers only received two opportunities for promotion.

7.  The applicant was considered by the FY 2012 CPT APL DA Promotion Board. The board convened 1 November 2011.  He was not selected for promotion.  The results of the board were approved on 17 February 2012.

8.  He submitted his college transcripts from DeVry University that show he earned his Bachelor of Science in Technical Management on 26 February 2012.

9.  On 14 June 2012, he was released from active duty.  He completed 2 years, 11 months, and 29 days of active service that was characterized as honorable.  He served in Afghanistan from 5 February 2010 to 6 February 2011.  

10.  Orders 12-243-00094, USAR Command, dated 30 August 2012, discharged the applicant from the USAR effective 1 October 2012.

11.  On 17 December 2012, the Office of the Deputy Chief of Staff, G1 disapproved a request to revoke his discharge orders.  G1 stated the applicant was discharged under the provisions of Title 10, U.S. Code, section 14504(a) (10 USC 104504(a)) as a result of his second non-selection for promotion.

12.  The applicant submitted his OER's for the periods ending 4 February 2010, 
5 May 2010, 5 May 2011, and 22 March 2012.

	a.  On all four OERs, in Part V (Performance and Potential Evaluation), the rater placed an "X" in the "Outstanding Performance, Must Promote" block.
	b.  On all four OERs, in Part VII (Senior Rater) the senior rater placed an "X" in the "Fully Qualified" block for the applicant's promotion potential to the next higher grade.

13.  In the processing of this case an advisory opinion was received from the Deputy Chief of Staff, G1, USAR Command.  G1 recommended disapproval of the applicant's request.

	a.  He was not selected for promotion by the FY 2011 and FY 2012 APL DA Promotion Selection Boards for failing to have the prerequisite baccalaureate degree prior to the boards’ convening date.  The results of the FY 2012 promotion board were approved on 17 February 2012; therefore, he was to be removed no later than 1 September 2012.

	b.  The exception to suspend twice non-selected 1LT's who do not possess a baccalaureate degree until the end of their original MSO did not apply to the applicant.  Based on his prior service, his MSO ended 7 November 2007.

14.  On 19 June 2013, the applicant submitted comments in response to the advisory opinion.

	a.  While attending BOLC Phase III, the Army asked if there were any Reserve volunteers to accept a 3-year active duty tour to an unknown continental United States destination.  He volunteered and was assigned to the 3rd BCT, 101st Airborne Division.  He deployed in January 2010.  While in Afghanistan his platoon was embedded with an infantry company at Combat Outpost Sabari.

	b.   He was contacted in June 2010 by his branch manager concerning the CPT board.  He was informed he was eligible for the CPT board due to HRC shortening the promotion time frame from 1LT to CPT.

	c.  His original mandatory promotion date was 2014.  This was shortened by
2 years.  There was no way he could focus on his personal college requirements with his platoon and superiors depending on him to carry out military missions.

	d.  He provided the following additional evidence:

* orders for award of the Air Assault Badge and additional skill identifier 	2B
* Bachelor of Science in Technical Management Diploma from DeVry 	University, dated 26 February 2012
* BOLC Diploma, dated 20 November 2008
* MP BOLC Phase III Diploma, dated 15 June 2009
* Antiterrorism Officer Basic Course Diploma, dated 30 September 2011
* three photographs

15.  Army Regulation 135-175 (Separation of Officers) states an officer in the grade of first lieutenant, captain, or major who has completed his statutory MSO, will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components selection board.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states effective 1 October 1995, that no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, provides that under the provisions of 10 USC 651, each person who becomes a member of a U.S. Armed Force, either by enlistment, appointment, or induction, will serve in the U.S. Armed Forces for a total initial period of 8 years.  Any part of such service that is not active duty will be performed in a Reserve Component.  A person's statutory military service runs concurrent with a contractual military service obligation.

18.  10 USC 104504(a), provides that a 1LT, USAR, who has failed selection for promotion to the next higher grade for the second time shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

DISCUSSION AND CONCLUSIONS:

1.  He contends after not being selected by the FY 2011 CPT APL DA Promotion Selection Board he contacted his branch manager and was told not to worry because he was on active duty.  However, remarks in the TAPDB-R transaction history, dated 6 July 2010, indicate his branch manager recommended he look into colleges with online degree opportunities and work towards completing his degree prior to the FY 2012 CPT APL DA Promotion Selection Board.  This indicates the applicant was well aware of the requirement to obtain a bachelor's degree even before the FY 2011 board.  Therefore, the evidence contradicts the applicant's contention.


2.  The applicant contends that his military records should be corrected to show he was reinstated as a commissioned officer in the USAR. 

3.  He was a first time non-select for promotion by the FY 2011 CPT APL DA Promotion Selection Board due to not having completed his baccalaureate degree from an accredited institution recognized by the Secretary of Education not later than the day before the selection board convening date.  

4.  He was a second time non-select for promotion by the FY 2012 CPT APL DA Promotion Selection Board due to not having completed his baccalaureate degree from an accredited institution recognized by the Secretary of Education not later than the day before the selection board convening date of 1 November 2011.  He acquired his degree on 26 February 2012.

5.  He had met his military service obligation on 7 November 2007.  Therefore, as required by 10 USC 104504(a), he was discharged.

6.  All USAR officers were subject to the same regulation and statute.  Therefore, there is no error or injustice in this case.

7.  In view of the above, there is no basis to grant the applicant's request.

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)                                         AR20120018453



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ABCMR Record of Proceedings (cont)                                         AR20120018453



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