IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20120021243 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be reinstated as the selectee for the Defense Comptrollership Program (DCP) Graduate Program in the next available academic year.

2.  Counsel states the applicant met all of the requirements for the DCP Graduate Program at the time he submitted his packet for admission to the program on 5 January 2010.  The applicant was initially selected as an alternate for the program; however, after the primary selectee was disqualified, he became the primary candidate.  At the time of his selection, he was a major (MAJ) in the U.S. Army Reserve (USAR), Active Guard Reserve (AGR).  On 11 March 2010, he was notified that he was not selected for the DCP Graduate Program because he had been promoted to the rank of lieutenant colonel (LTC).

3.  Counsel provides a supplemental brief and eleven exhibits.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a USAR AGR officer in the rank of LTC at the time of his application.

2.  U.S. Army Human Resources Command (HRC) Memorandum for Eligible Reserve AGR Officers, subject: Memorandum of Instruction (MOI) – Calendar Year 2009 AGR Officer Professional Development Assignment (PDA) Process for Academic Year (AY) 2010-2011, dated 23 September 2009, announced assignment opportunities beginning in summer 2010 for eligible officers.  It stated that those who met the eligibility criteria at enclosure 1 could apply for attendance at the PDA programs including the DCP.  The Director, Officer Personnel Management Division (OPMD) was the approval authority.  Assignment decisions would be made in the January 2010 timeframe.  The suspense for submission of applications was 6 January 2010.  Paragraph 1 of Enclosure 1 stated all prerequisite requirements were subject to change.  Paragraph 2b of Enclosure 1 mentioned only CPTs and MAJs in the eligibility criteria.

3.  HRC memorandum, subject: Army Reserve Officer PDA Notification, dated
18 February 2010, stated the applicant was considered, but unfortunately he was not among those selected by the PDA Board for an AY 2010-2011 Fellowship.

4.  An email, dated 1 March 2010, stated that if "these officers are not flagged" and were otherwise eligible for promotion, they were to be promoted with the exception of the one officer who was removed from the selection list.

5.  Orders B-03-001239, issued by HRC, dated 2 March 2010, promoted the applicant to the rank of LTC effective 30 December 2009.

6.  An email addressed to the applicant, dated 11 March 2010, stated he was chosen as an alternate but not selected because of his promotion.

7.  An email from Colonel (COL) KLC addressed to the applicant, dated 14 April 2010, stated "unfortunately we cannot give your case reconsideration."  The board Letter of Instruction (LOI) was very specific in that DCP candidates would be in the grade of CPT or MAJ.  Although he was in the grade of MAJ when he applied, as a newly-promoted LTC he was no longer eligible and did not meet the course prerequisites.

8.  A DA Form 1559 (Inspector General (IG) Action Request), dated 16 April 2010, shows he requested the IG investigate the legality/appropriateness of the decision to reject his selection for the DCP.  He stated he should not have been rejected for the DCP based on a promotion that occurred after he was selected by the PDA board.  His career manager confirmed that he was selected for the DCP but removed because he was promoted to LTC.  The non-select "PDA 


notification" was dated 18 February 2010 and his promotion orders were not issued until 2 March 2010; hence, removal from selection for this reason was impossible.  Furthermore, the MOI had a suspense date of 6 January 2010 for application and, at that time, he met all of the requirements (evidenced by his selection for the school by the board).

9.  In response to the applicant's request for assistance, a DAIG letter addressed to Senator Nelson, dated 16 June 2010, stated documentary evidence revealed the applicant previously contacted the Director, OPMD at HRC, St. Louis, MO about a reconsideration of his non-selection for the DCP.  Additionally, the applicant had filed IG requests for assistance for a due process review with both the HRC IG and as well as the U.S. Army Reserve Command (USARC) IG.  The Director of OPMD responded to his request for consideration stating, "unfortunately we cannot give your case reconsideration.  The board LOI was very specific in that DCP candidates would be in the grade of CPT or MAJ.  Although you were in the grade of MAJ when you applied, as a newly-promoted LTC you are no longer eligible and did not meet the course prerequisites."  The HRC IG conducted a due process review of this response and concurred with the Director.  The applicant's promotion list was approved 30 December 2009 and the selection board did not meet until after 6 January 2010.  Therefore, the board would have been aware of his promotable status, as well as that of other officers, and removed them from consideration.

10.  The DAIG Action Request System shows the applicant's case was opened on 4 May 2010 and closed on 7 December 2010.

11.  An email from the HRC IG, dated 2 July 2012, stated the IG had conducted a thorough analysis of his request for assistance.  Based upon their due process review of his case, the IG found no errors in COL KLC's refusal to reconsider his request for consideration as a potential DCP candidate.  As she correctly pointed out, the program is for CPTs and MAJs.  The applicant's promotion list was approved as of 30 December 2009 and as the applicant stated, "the MOI had a suspense of 6 January 2010 for application and, at that time, he met all of the requirements."  He should not have been considered for the DCP, but because of an administrative error his records were reviewed.

12.  A letter from Mr. (LTC Retired) TCM addressed to the applicant's counsel, dated 16 August 2012, states he was a DCP graduate and was an LTC at least 1 year prior to his DCP selection.  He was promoted on 29 December 2005 and applied for Syracuse in August or September 2006.  He was initially told that as an LTC, he was ineligible for the school.  He disagreed and asked the functional area manager to provide the regulatory guidelines that stated he was ineligible.  They provided guidance that said the class was intended for senior CPTs and junior MAJs.  He then asked for the waiver procedures and was told that a waiver for an Army Reserve Soldier had to go through his chain of command through the Office of the Chief, Army Reserve (OCAR) Comptroller, and be endorsed by the OCAR Director of Resource Management.  He requested a waiver which was granted, allowing him to compete for a position in the upcoming class, as he had to meet all other entrance criteria for acceptance.  He was selected for the program and attended Syracuse from May 2007 through August 2008.
 
13.  The applicant's record is void of evidence showing whether he was offered the opportunity to decline the promotion to LTC.

14.  Counsel states that in the applicant's case, the decision to deem him ineligible for the DCP Graduate Program was arbitrary and capricious, and therefore was a material error by COL KLC.  Department of Defense (DOD) Instruction 1332.10 is the policy that governs graduate education for military officers.  This instruction does not state that officers who attain the level of LTC should be deemed ineligible for graduate education programs.

	a.  Army Regulation 621-1 (Training of Military Personnel at Civilian Institutions) does not differentiate between a MAJ and an LTC in order to specify which military officers are eligible for educational opportunities at civilian institutions.  Army Regulation 621-108 (Military Personnel Requirements for Civilian Education) establishes the requirements for military personnel to participate in coursework at civilian institutions.  Chapter 2 of this regulation states graduate education at the grade of CPT, MAJ, and LTC provides the officer the necessary skills to meet specific position requirements, which are generally narrow in scope and deep in technical application.

	b.  HRC annually develops civilian schooling input, by specialty and academic discipline, at the grade of CPT, MAJ, and LTC to create an inventory of officers at all grades that possess knowledge to satisfy the Army Education Requirements System.  This paragraph clearly and convincingly demonstrates that the intention of the Army is to encourage CPTs, MAJs, and LTCs to continue to better themselves through education in order to strengthen the U.S. military.  These three ranks are mentioned on two occasions in the brief paragraph, and only the rank of COL is explicitly excluded from the graduate education requirements as promulgated by the Department of the Army.  It is clear from Army Regulation 621-108 that the intent of the Department of the Army is to include LTCs in graduate education programs such as the DCP that the applicant was originally selected for.


	c.  Furthermore, the letter sent to Senator Nelson from COL MC stated that any officer who had applied for the DCP Graduate Program but was the rank of LTC would have been removed from consideration.  However, LTC TM was selected and completed the program in August 2008 in the rank of LTC.  He was originally told that he was ineligible; however, he was instructed that there was a waiver procedure that would allow him to be considered for the program and he provided a signed document that states he was admitted to the DCP Graduate Program while he was an LTC.

	d.  The fact that the applicant has been relentlessly pursuing this matter for more than 2 years and was treated so disparately compared to other U.S. Army LTCs indicates a clear material error by multiple individuals that he interacted with.  Additionally, it is worth noting that there was a material error involved regarding his promotion from MAJ to LTC.  Army Regulation 600-8-29 (Officer Promotions), paragraph 5-5, dictates that an officer must be allowed an opportunity to decline any promotion after discussing the declination with his or her rater.  The deviation from Army regulations regarding his promotion further shows a disregard for established Army regulations and directives.  In his case, he was not offered the opportunity to decline the promotion from MAJ to LTC.  The applicant recognizes that it may sound imprudent or even implausible that he would have declined his promotion and affirms that the issue is now moot in light of the case of LTC (Retired) TCM.  However, the simple fact is that he was not afforded the chance to discuss the possibility that he would be removed from the DCP Graduate Program as an unintended consequence of his promotion.  This is significant because graduates of the DCP Graduate Program receive a Masters of Business Administration (MBA), which is an extremely valuable and desirable degree.  He would have been eligible to receive his MBA at the expense of the Department of the Army in exchange for serving a minimum of 42 months, which is three times the length of the DCP Graduate Program.  He was deprived of the opportunity to discuss the impact of declining the promotion on his eligibility for the program weighed against the ramifications of declining the promotion in regard to his Army career with his rater.  Once again, the applicant wishes to point out that it is extremely unlikely that he would have declined his promotion to LTC and that the decision is irrelevant due to LTC (Retired) TCM's case.  However, the point remains that the choice was guaranteed by Army Regulation 600-8-29, but was disregarded in the selection process.

	e.  Counsel states, for the reasons stated above, it is clear that the applicant was the victim of a material error in discretion when he was removed from the selection list for the DCP Graduate Program.  The Department of the Army has arbitrarily and capriciously excluded him from the opportunity to complete the 


DCP Graduate Program.  Despite his selection and relentless efforts to be reinstated, he was not properly informed of the procedures to be waived into the program.  Lastly, he was not given the opportunity to decline his promotion to the rank of LTC in order to complete the DCP Graduate Program and receive a Masters of Business Administration from Syracuse University.

15.  Army Regulation 600-8-29, paragraph 5-5 states that an officer may decline certain promotions and that the officer should be counseled by his or her rater about the impact of declination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel's contentions were carefully considered.  The applicant would surely have been aware of the option to decline his promotion.  Counseling regarding the impact of declination would have only been pertinent if he had indicated that he intended to decline the promotion.  Further, counsel admits the applicant recognizes that it may sound imprudent or even implausible that he would have declined his promotion.  As such, there appears to have been no harm to the applicant or inequity in this respect. 

2.  The HRC IG conducted a due process review of COL KLC's response to the applicant and concurred with it.  The IG indicated the applicant's promotion list was approved on 30 December 2009 and the PDA selection board did not meet until after 6 January 2010.  His promotion was not effective until after the PDA board made its selection for the DCP Graduate Program.  However, COL MC stated the PDA board would have been aware of his promotable status, as well as other officers, and that he should have been removed from consideration.

3.  Though the PDA MOI does not explicitly exclude LTCs, LTC (Retired) TCM stated he was initially told that as an LTC he was ineligible for the school.  However, he applied for and was granted a waiver to attend the program.  Not all the circumstances surrounding his selection and the applicant's non-selection are known, including why the original selectee was removed from the selection list, which resulted in the applicant (initially an alternate selectee), being identified as the selectee.  However, the applicant was informed that he did not meet the guidelines as a LTC and he was denied reconsideration; in effect, denying a waiver from the approval authority.  Notwithstanding that LTC (Retired) TCM was granted a waiver to attend the DCP in 2007-2008, LTC's were not included as eligible candidates for this program.  Further, based on the statement in Enclosure 1 of the MOI and on COL KLC's response to the applicant, evidence shows the OPMD Director intended that the DCP selectee would be in the grade of CPT or MAJ.  As the approving authority, COL KLC had the right to consider only those officer candidates in the rank of CPT or MAJ as she may have determined was best for the USAR at the time.

4.  Although it appears minor administrative errors may have been occurred, the fact that another officer previously was granted a waiver does not in and of itself indicate inequity.  There is no evidence of legal error, inequity, or injustice in the applicant's non-selection for the DCP.

5.  In view of the foregoing, there is no basis for granting 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)                                         AR20120021243



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ABCMR Record of Proceedings (cont)                                         AR20120021243



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