IN THE CASE OF:	  

		BOARD DATE:	    22 August 2013 

		DOCKET NUMBER:  AR20130004361 


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 consideration for promotion to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR) by a special selection board (SSB) under the Fiscal Year 2011 (FY11) Reserve Component (RC) LTC, Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Judge Advocate General's Corps (JAGC), Promotion Selection Boards criteria.

2.  The applicant states that information has been disclosed that she did not get a "fair" look by the FY11 "in the zone" board for promotion to LTC because the U.S. Army Human Resources Command (HRC) did not consider the request she submitted for a military education (MILED) waiver.  The request is not located in her records.  She states, "…I submitted a letter in support requesting a waiver and I submitted a letter in support of my military waiver request by my Staff Judge Advocate (*to be mailed)."  She contends that since HRC never addressed receiving the waiver and/or granting it, the conclusion is that they never received it.

3.  The applicant provides:

* request for a MILED waiver
* email correspondence with HRC
* unsigned draft request for an education waiver
* endorsement of a request for an education waiver


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army in the rank grade of first lieutenant in the JAGC and entered active duty on 7 May 1998.  She was promoted to captain on 1 January 1999.

2.  She was honorably released from active duty on 9 July 2004 and transferred to the USAR Control Group (Reinforcement).  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the narrative reason for her separation as "non-retention on active duty."

3.  The applicant was promoted to MAJ on 31 December 2005.

4.  On 24 February 2010, she was voluntarily reassigned from the USAR Control Group (Reinforcement) to the 87th USAR Support Command, Birmingham, AL.

5.  The applicant provides copies of email correspondence between her and members of her supervisory chain from 17 to 18 May 2011.

	a.  On 17 May 2011, Colonel (COL) H____ spoke with a representative of the HRC Promotions/Special Actions Branch regarding the proper procedure for the applicant to request a MILED waiver.  COL H____, in turn, rendered a supporting memorandum of endorsement and advised LTC M____ that the original request for a waiver should come from the applicant and be forwarded to HRC for consideration.  COL H____ also stated there is a format on the HRC website boards/promotions page.

	b.  On 17 May 2011, LTC M____ forwarded the aforementioned email to the applicant along with a copy of the signed supporting memorandum of endorsement rendered by COL H____ and an unsigned draft of how the applicant's original request should appear.  LTC M____ advised the applicant as follows:  "1.  Please see both attached.  Second document is what I prepared for COL H____.  You will need to revise it to bear your signature block, etc.  2.  Let me know if you need anything else."

	c.  On 18 May 2011, COL H____ sent the applicant a message stating, "Just following up.  After speaking with a rep from HRC, I believe you have to prepare a memo requesting the waiver which I then endorse.  I have prepared a memo endorsing the waiver.  The format for the waiver request memo is available on the HRC website, boards/promotions page.  Let me know if I can do anything else."

	d.  On 18 May 2011, the applicant responded to COL H____ stating, "Thank you, Sir.  I received the courtesy copy to LTC M____ on those instructions.  Thank you, again for your letter.  Do I need to forward your attached endorsement with my waiver request or do you do that?"

	e.  On 18 May 2011, COL H____ replied, "You do that."

6.  The applicant's records contain a DA Form 1059 (Service School Academic Evaluation Report), dated 23 July 2012, which shows she successfully completed the intermediate level education common core (ILE-CC) course conducted from 29 July 2011 through 20 July 2012.

7.  The applicant's records do not contain a memorandum from the USAR notifying her that she was considered by the FY11 or FY12 RC LTC, AR AGR and AR NON-AGR, JAGC, Competitive Categories, Promotion Selection Boards, but was not selected for promotion.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC, dated 13 May 2013.  The advisory official stated the assertion that the applicant was disadvantaged by not being granted a MILED waiver for ILE-CC is without merit and moot.

	a.  The applicant stated she submitted a MILED waiver request on or about 16 May 2011 for the FY11 RC LTC, AR AGR and AR NON-AGR, JAGC, Competitive Categories, Promotion Selection Boards which convened on 9 August 2011.  However, there is no record that her request for a MILED waiver was ever forwarded to Officer Promotions for final adjudication.

	b.  The MILED requirement for promotion to LTC is 50-percent completion of the Command and General Staff Officer Course (CGSOC) or completion of 
ILE-CC.  In accordance with Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 2-8(a)(1), officers enrolled in the resident CGSOC may be granted equivalent credit for having completed 50 percent of CGSOC.  In 2006, CGSOC was replaced by ILE.  For the purpose of promotion consideration only, officers enrolled in resident ILE or a resident ILE-CC satellite course at the time they are considered for promotion to LTC will be granted equivalent credit for having completed ILE-CC without a waiver.

	c.  Finally, the applicant displayed a lack of due diligence by failing to ensure the associated MILED request was submitted to the application mailing address defined in Military Personnel (MILPER) Message 11-134, paragraph 4, dated 3 May 2011.  At the time the board convened, the applicant had only completed Phase I of the three required phases for ILE-CC completion and was not automatically entitled to a MILED waiver.  This was based upon the past practice of only approving cases with a minimum completion of Phases I and II or with detailed exigent circumstances.  There is no guarantee that her justification would have qualified as an exigent circumstance opposed to merely poor career planning.

9.  A copy of the advisory opinion was provided to the applicant to afford her an opportunity to respond.  The applicant did not respond.

10.  Headquarters, USAR Command, Orders 13-162-00006, dated 11 June 2013, show the applicant was honorably discharged from the USAR effective 1 July 2013 as a result of being twice non-selected for promotion to LTC.

11.  MILPER Message Number 11-134, dated 3 May 2011, announced the policy, criteria, and zones of consideration for the FY11 RC LTC, AR AGR and AR NON-AGR, JAGC, Competitive Categories, Promotion Selection Boards.  The MILPER message stated:

	a.  Army Regulation 135-155, table 2-2, lists the MILED requirements for promotion selection to LTC.  MILED and civilian education must be completed no later than the day before the board convenes (9 August 2011).  The MILED requirement for JAGC officers is 50 percent completion of CGSOC or current enrollment or completion of the 10-month resident ILE course or completion of the ILE-CC.  The evidence of completion is the DA Form 1059.  Officers not educationally qualified will not be selected for promotion.  Officers not having attained the requisite MILED may request a waiver from the Chief, Officer Board Support (Special Actions), AHRC-PDV-PS, 1600 Spearhead Division Avenue, Fort Knox, KY  40122-5407.  Requests must contain complete justification, including recommendations from immediate commanders when applicable.  Requests for waivers must be received no later than 29 July 2011.

	b.  The promotion board will utilize the My Board File (MBF) application which is comprised of the official photograph, officer record brief, and documents from the performance section of the official military personnel file.  The Chief, Department of the Army Promotions, is the approval authority for exceptions to non-statutory promotion requirements.  It is incumbent upon the officer to provide all orders and proof of completion with the waiver request and submit all associated supporting documents to HRC no later than 25 July 2011.

	c.  Officers may review their official files through the HRC website.  In order for the MBF to be updated, the officer must first correct the items in his or her official file through his or her servicing S-1.  Officers may view their MBF's by clicking on the "My Record Portal" using their "Army Knowledge Online" user name.  Failure to comply with the instructions in the MILPER message will be viewed as a lack of due diligence on the officer's part.

	d.  Officers must provide missing documents that are in their possession or make a reasonable attempt to retrieve missing documents.  Again, failure to comply may demonstrate a lack of diligence on the officer's part.  All documents must be submitted using the correct process no later than 25 July 2011.  The MBF will close 5 days prior to the convening date of the board scheduled for 9 August 2011.  The board file closes 5 days prior to the convening date of the board (4 August 2011).

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  Table 2-3 states the MILED requirement from MAJ to LTC is completion of CGSOC or ILE-CC.  It also states SSB's may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army, discovers one or more of the following:  an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of an administrative error, including officers who missed a regularly-scheduled board while on the Temporary Disability Retired List and who have since been placed on the Army Promotion List (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known that completion of the 
ILE-CC and its inclusion in her MBF has been a long-standing regulatory requirement for promotion to LTC.  The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones, are widely published in official, quasi-official, and unofficial publications.
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2.  Additionally, MILPER messages announced the convening date of the FY11 and FY12 RC LTC, AR AGR and AR NON-AGR, JAGC, Competitive Categories, Army Promotion Selection Boards with specific instructions for eligible officers to ensure the individual officer's records were complete and met the requirements.  The message warned that failure to comply with the instructions in the MILPER message would be viewed as a lack of due diligence on the officer's part.

3.  The applicant provides email documentation which shows members of her chain of command took an active interest in assisting her with requesting a MILED waiver and even went so far as to draft a sample for her to follow.  However, it is unclear if she ever complied with the guidance from her leadership and actually prepared and forwarded a waiver request to the appropriate approval authority.  Equally unclear is the fact that the applicant could have detected the alleged error had she exercised due diligence by reviewing her promotion file.

4.  It appears the applicant did not inquire about her promotion file until after the board had convened and she had not been selected.  Her failure to ensure her promotion file was complete despite the clear instructions in the MILPER message regarding deadlines and documents does not justify consideration by an SSB.  As such, there is no material error that warrants sending her records before an SSB.

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 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)                                         AR20130004361



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ABCMR Record of Proceedings (cont)                                         AR20130004361



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