IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20120020640 


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:

	a.  Revocation of his 2004 discharge orders from the Army National Guard (ARNG).

	b.  Adjustment of his date of rank (DOR) to major (O-4) to 17 July 2003.

	c.  ARNG promotion to lieutenant colonel (O-5), year group 2009.

	d.  Waivers of military education requirements for O-5 promotion.

	e.  Vacation of his reappointment into the Reserve.

	f.  Continuation in ARNG status.

	g.  Award of retirement points and back pay from his discharge in 2004 to 2007 when the "WASSOM" Memo was placed in his Army Military Human Resource Record.

2.  The applicant states:

	a.  A Department of the Army (DA) Special Selection Board (SSB) convened to reconsider officers for promotion who may have been improperly nonselected.

	b.  The original board Memorandum of Instructions (MOI) for the subject board included a civilian education requirement prescribed by Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 2-9b(2), which required captains being considered for promotion to major to possess a baccalaureate degree if the officer's initial appointment was after 1 October 1987.

	c.  Because this regulatory degree requirement did not provide an exception for officers who were appointed to the grade of captain before October 1995, it failed to implement the baccalaureate degree exception that is required by Title 10, U.S. Code, section 12205(b4).

	d.  Based on this, he was selected for promotion by an SSB under the provisions of Title 10, U.S. Code, section 14502, which adjourned on 1 August 2006.

	e.  His promotion eligibility date is 17 July 2003 to the grade of major.

	f.  The promotion eligibility date will be used in computing time in grade for Reserve promotion to the next higher grade.

3.  The applicant provides:

* Chief, Office of Promotions, Reserve Components Memorandum, dated 21 February 2007
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 February 2004
* Chief, Office of Promotions, Reserve Components Memorandum, dated 23 January 2007

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  With prior enlisted service, the applicant accepted an appointment as a second lieutenant in the Iowa ARNG (IAARNG) on 29 July 1990.  He was promoted to first lieutenant on 28 July 1993.  He accepted an appointment in the Nebraska ARNG (NEARNG) on 20 June 1995 and he was promoted to captain on 29 September 1995.  He transferred to the New Mexico ARNG (NMARNG) on 3 February 2000.

3.  The applicant was honorably discharged from the NMARNG on 1 March 2002, due to "absence without leave for three months."  He was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).

4.  On 16 July 2002, the applicant was notified that a DA Reserve Component Mandatory Selection Board (RCSB) was convened to consider officers of his grade for promotion.  He was told he was considered, but not among those selected for promotion by the board.  He was told that the records reviewed by the DA Selection Board did not indicate he had completed the required civilian and/or military education by the day the board convened (4 March 2002).

5.  The applicant accepted an appointment in the Arizona ARNG (AZARNG) on 12 June 2003 (unit vacancy).

6.  On 7 August 2003, the applicant was notified that a DA RCSB convened on 3 March 2003 to consider officers in his grade for promotion.  He was told he was considered, but was not among those selected for promotion by the board.  He was told that as a result of his twice nonselection, he must be discharged in accordance with Title 10, U.S. Code, section 14513 or Army Regulation 140-10.  He was told that his established removal date was no later than1 February 2004, unless he was eligible for and requested transfer to the Retired Reserve.

7.  The applicant was separated from the AZARNG and as a Reserve of the Army on 1 February 2004.

8.  On 23 January 2007, he was notified that a DA SSB convened to consider for promotion officers who may have been improperly nonselected for promotion.  He was told he was considered under the criteria year 2002 by the SSB.  He was told that the original MOI for the subject board included civilian education requirements prescribed by Army Regulation 135-155, paragraph 2-9b(2), which required captains being considered for promotion to major to possess a baccalaureate degree if the officer's initial appointment was after 1 October 1997. The applicant was told that Title 10 U.S. Code, section 12205(b)4, provides an exception to the baccalaureate degree requirement for officers who were appointed to the grade of captain before 1 October 1995.  The notification states that according to the settlement agreement in Wasson v. Secretary of the Army he received promotion consideration to implement this statutory exception and unfortunately, he was not among the officers selected for promotion.  He was told he still had a basis for further consideration by a DA SSB under criteria year 2003; therefore, his file was considered by another SSB and the result would be announced by a separate memorandum.

9.  On 21 February 2007, the applicant was notified he had been selected for promotion to major by an SSB with a promotion eligibility date of 17 July 2003.  He was told that the earliest possible DOR he could have is the approval date of the criteria year 2003.

10.  On 20 July 2010, the applicant accepted an appointment in the Texas ARNG in the rank of captain.  He was separated from the TXARNG on 1 June 2011 and he was assigned to the USAR Control Group (Reinforcement).  

11.  The applicant was promoted to Major effective 2 June 2011.

12.  He was released from the USAR Control Group (Reinforcement) on 
21 February 2012 and he was reassigned to a Troop Program Unit.

13.  On 1 August 2013, an advisory opinion was obtained from the NGB Chief, Personnel Policy Division, who recommends partial approval and states the following:

	a.  Revoke his discharge from the ARNG in 2004.

	b.  Back date his DOR to 30 December 2004, the date he would have been recommended for promotion to that grade by a mandatory board that should have considered, or that did consider the officer.  The State of Arizona reviewed their Unit Manning Reports from the time he should have been in a promotable status and determined that the first vacant slot for a major position was as of 30 December 2004.

	c.  The requirement to attend Combined Arms and Service Staff School (CAS3) in order to be promoted to major should be waived.

	d.  If the applicant is granted the recommended retroactive promotion to major, he should then be considered by an SSB to evaluate him for promotion to lieutenant colonel, based on his DOR to major.

	e.  If the applicant is granted the recommended retroactive promotion to major, he can then request a waiver of military education in preparation for submitting his board file for the SSB to evaluate him for promotion to lieutenant colonel.  The waiver would be for board action only.  He must meet military education requirements prior to promotion to lieutenant colonel.

	f.  The applicant is an active drilling member of the USAR (from 21 February 2012 to present).  If his case is approved, he can apply for a conditional release through his current unit commander to vacate his reappointment into the USAR.

	g.  The applicant should receive credit for membership points and creditable service for pay purposes from 1 February 2004 (the date of his discharge) through 19 July 2010 (the day prior to reentering the ARNG).  There is no recommendation for back pay in the advisory opinion.

14.  On 12 August 2013, a copy of the advisory opinion was forwarded to the applicant.  He concurred with the advisory opinion on 18 August 2013.

15.  Section 14502(b) of Title 10, U.S. Code, states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error; or (b) the selection board did not have before it for its consideration material information.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The available evidence shows that he is entitled to partial relief in his case.  The applicant was nonselected for promotion to major due to not meeting the civilian education requirement of possessing a baccalaureate degree prior to consideration by the promotion board.  However, Title 10 U.S. Code, 12205(b)4, in effect, at the time, provided an exception to this education requirement for anyone promoted to captain before 1 October 1995.  The applicant's DOR for captain was 29 September 1995.  Therefore, the exception applies to him.

3.  Because he was improperly nonselected, and retroactively selected for promotion eligibility backdated to 17 July 2003, his records should be corrected as recommended below.

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 partial relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

	a.  Revoking his discharge from the ARNG and as a Reserve of the Army, dated 1 February 2004.

	b.  Back dating his DOR to major to 30 December 2004.

	c.  Considering him by an SSB for promotion to lieutenant colonel based on his DOR to major.

	d.  Issuing him credit for 15 membership points and 35 inactive duty training points from 1 February 2004 (date of discharge) through 19 July 2010 (the day prior to reentering the ARNG), and paying him for those inactive duty points.

2.  The Board further determined that 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 back dating his DOR to major to 17 July 2003; waiving his military education for promotion to lieutenant colonel; and vacating his reappointment into the USAR.




      _______ _  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)                                         AR20120020640



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ABCMR Record of Proceedings (cont)                                         AR20120020640



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