IN THE CASE OF:	  

		BOARD DATE:	16 January 2014

		DOCKET NUMBER:  AR20130010603


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 to captain (CPT) in the Texas Army National Guard (TXARNG), with a date of rank (DOR) concurrent with his graduation from the Basic Officer Leader Course (BOLC).

2.  The applicant states:

* he was not promoted despite meeting the requirements for promotion; he has been an O-2 [first lieutenant (1LT)] for 4 years and 7 months
* he was to be promoted via unit vacancy after completing BOLC in 2011, but this did not happen, and for no apparent reason
* he was not given a reasonable answer as to why he was not promoted during that time
* in February 2012, he spoke with the commander of Headquarters and Headquarters Company (HHC), Texas Medical Command (MEDCOM), and was informed by his commander that he would handle his promotion
* his commander asked him to send in the required documents for promotion, although he had previously done so in 2011
* he reassembled the documents and sent them to the HHC commander - the packet included Officer Evaluation Reports (OER), Army Physical Fitness Test (APFT) scores, security clearance information, a unit vacancy checklist, and his college transcripts
* his commander told him via email that he would send the packet forward
* in April 2012, he visited the HHC commander to check on his promotion progress
* as for the recent DA board, he realizes he is responsible for what gets into his Army Military Human Resource Record (AMHRR) file, but he never thought about the transcripts since he sent that information to the people who said they would process the packet
* he emailed and phoned and asked repeatedly what he needed to do to get promoted, all to no avail; his commander informed him that he had done nothing with his packet because of "fast-tracking" a higher-ranking officer's packet and that he has been "very busy"
* he received a copy of his packet from his office via email – after this, he does not know what happened to his packet
* only recently he learned his packet was sent to the State in December 2012, but was returned because of a change in the status of his eligibility
* [his promotion] would be considered by a Department of the Army (DA) board based upon his DOR
* he was considered by a board in December 2012 – the results of the board stated he lacked the required military education despite the presence of the appropriate DA Form 1059 (Service School Academic Evaluation Report) in his AMHRR since 2011
* there was no mention of the need for his college transcripts
* he was reconsidered by a second board; however, he never received direct notification of the results of the second board
* his brigade commander sent him an email explaining the Order of Merit List (OML) and informed him that his Officer Record Brief (ORB) was not visible to the board – again, there was no mention of college transcripts
* he wrongly assumed that sending his transcripts to the S1 was sufficient
* he was passed over by the DA board because there were no college transcripts in his file
* he was notified by his superiors of his reason for non-selection
* he was counseled that he had since 2008 to get his transcripts into his AMHRR file
* he feels it is inexcusable that he has not been promoted for as long as he has been in his current rank
* he has received satisfactory OERs and APFT tests
* he has attended every drill and volunteered for, and participated in, duty outside of routine assemblies
* he has watched his peers being promoted around him and he feels he did everything that was asked of him in order to be promoted in 2012, but it didn't happen - there is no good reason for this
* the point he would like to make is that he should not even have to go through the DA board for promotion from 1LT to CPT, since the unit vacancy should have sufficed back in 2012, and he should already have been promoted by now
* he was ignored and put aside – he has had to fight to just to get into the ARNG, taking 3.5 years to get in
* he then had to wait 3 years to get into BOLC, nearly going over the allotted time to complete it due to MEDCOM's inability to get him into a class
* he recently had to file a complaint just to get all of the benefits promised to him when he joined – and now he has to file a complaint just to get promoted
* he feels this should be rectified now – he should not have to wait until the 2014 DA board

3.  The applicant provides the following documentary evidence:

* numerous emails documenting his communication with members of the TXARNG regarding his promotion to CPT, sent between 2011 and May 2013
* documentation pertaining to his consideration, on 2 separate occasions, by a Fiscal Year 2013 (FY13) Consolidated Officer Board
* his unit vacancy promotion packet, consisting of:

* Officer Personnel Management Branch Unit Vacancy Promotion Checklist
* a memorandum from the commander of HHC, Texas MEDCOM, TXARNG, subject: Recommendation for Promotion of Officer, dated
20 April 2012
* DA Form 1059, BOLC, dated 16 May 2011
* copies of his college transcripts
* DA Form 705 (APFT Scorecard)
* a Medical Protection System (MEDPROS) Individual Medical Readiness report
* a person summary sheet and a personnel data sheet
* DA Form 67-9 (OER), covering the period 21 October 2010 through
20 October 2011
* DA Form 4037 (ORB)
* 
CONSIDERATION OF EVIDENCE:

1.  On 23 October 2008, after previous enlisted service in the Regular Army and Individual Ready Reserve, the applicant was appointed as a 1LT in the TXARNG, assigned to the Texas Medical Detachment of the TXARNG. 

2.  On or about 22 April 2011, he entered active duty for the purpose of attending and completing the BOLC for Reserve Component (RC) Soldiers (BOLC RC).  

3.  On or about 16 May 2011, he completed the BOLC RC and returned to the control of the TXARNG.

4.  He was considered for promotion to CPT by the FY13 AMEDD RC CPT Promotion Board that convened at Fort Knox, KY on 27 November 2012 and recessed on 18 December 2012.

5.  On 28 March 2013, the TXARNG notified him he had been non-selected by the FY13 AMEDD RC CPT Promotion Board due to a lack of education.  The non-selection memorandum does not specify what education he lacked.

6.  A review of his AMHRR shows:

* his DA Form 1059, showing his completion of BOLC RC, was input into the performance folder of his AMHRR on 20 September 2011
* his college transcripts and diploma, showing his completion of his baccalaureate degree, were input into the performance folder of his AMHRR on 13 March 2013 and 2 May 2013

7.  He submits numerous emails documenting his communication with members of the TXARNG, sent between 2011 and May 2013.  These email messages document his attempts to have his promotion packet processed, from unit to State level, for consideration of a unit vacancy promotion.  

8.  On 5 August 2013, in the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA.  This official recommended partial approval of the applicant's request for relief.  She further stated the following points:

	a.  [Applicant] contends he should have been promoted in 2012.  He contends he was told by someone in his chain of command that his promotion would be submitted through a unit vacancy promotion in February 2012; later, he was told April 2012.  He states the completed promotion packet was submitted to his unit, but his unit failed to process it and send it to the State for the TXARNG's Federal Recognition Board (FRB).

	b.  [Applicant] received a direct commission on 23 October 2008, and he was enrolled to begin BOLC approximately 3 years later, on or about 22 April 2011.  Per National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), dated 15 April 1994, the requirements for promotion to CPT are as follows:

* minimum time in grade is 2 years
* AMEDD officers will attend BOLC within 24 months
* Bachelor's degree
* recommendation and/or endorsement through chain of command from the State
* must be medically fit, have a passing APFT, be within the consideration period, and be in an active status

	c.  [Applicant] could not be considered in the 2-year time frame because he needed to complete BOLC.  Upon completion of BOLC, he contends he submitted his DA Form 1059 to his unit.  He contends he also submitted his promotion packet shortly after and it was being processed in September 2011 at the unit.  He contends he spoke with his company commander in February 2012, who told him he would handle his promotion.  In April 2012, his commander told him he had not yet taken action on his promotion, but said he would still handle it.

	d.  [Applicant] was not selected by the FY13 AMEDD RC CPT Promotion Board due to lack of proper education for CPT; there was no degree in his AMHRR.  The TXARNG states that the error has since been corrected.  The TXARNG also admits the Soldier's promotion packet was delayed at no fault of the Soldier, causing him to go before the DA Board.

	e.  Eligibility for promotion does not mean an automatic promotion.  It is the officer's responsibility to manage his or her career; however, the fact remains the officer submitted the appropriate paperwork and promotion packet to his unit.  It is the unit's responsibility to upload documents to a Soldier's AMHRR and it is the command's responsibility to endorse or deny a promotion packet and forward it to the State.  Moreover, his unit had a responsibility to inform him of his appearing before a board, in order for him to prepare.  Had the errors not occurred at unit level regarding his education, he may have been promoted prior to becoming a DA non-select.

	f.  Based on the circumstances surrounding the case, the applicable Army and ARNG regulations, and the review of this case by Officer Policy at NGB, [Applicant] could not have been promoted to CPT with a date of rank of 16 May 2011.  His packet would have had to be processed on the scrolls at NGB – the earliest he could have been promoted would have been 90 days from the time the State would have submitted the packet for consideration.

	g.  According to Officer Policy at NGB, and email traffic from the TXARNG, his promotion packet was not complete until April 2012 due to delinquent OERs.
Email traffic indicates the State was not willing to promote him before that date. However, the OER delinquencies are null and void because he would not have any OERs prior to BOLC, and that is not a requirement for promotion to CPT per National Guard Regulation 600-100.  Army Regulation 623-3 (Personnel Evaluation Reporting System) provides that newly-commissioned officers (active Army and ARNG) will not be eligible to receive OERs, except for "Relief for Cause" reports, until after the completion of the respective officer basic course.

	h.  His promotion packet was not submitted to the State in February or April 2012, as he originally assumed.  Due to negligence at the unit level his packet was not sent to State until December 2012, causing the packet to go before the DA Board.

	i.  The evidence provided does not offer a clear timeline of events leading to the submission of his promotion packet.  He indicated in a letter, dated 31 May 2013, that he had submitted documentation for his promotion packet to his unit since the completion of BOLC in 2011.  An email, dated 8 February 2012, shows his packet was being processed at unit level in September 2011.  As determined by the command team's memorandum, dated 2 July 2013, there were discrepancies at unit level that prevented the Soldier's promotion packet from being processed in a timely manner in 2011.  However, as indicated in the same memorandum, the Soldier was to be promoted under a unit vacancy promotion upon completion of BOLC.

	j.  It is clear he attempted to submit his packet in a timely manner, and that there were issues at the unit, which to date have prevented his promotion to CPT.

	k.  NGB recommends [Applicant] have a promotion effective date no earlier than 1 September  2011.  This date is determined as if his packet had gone before the TXARNG Federal Recognition Board (FRB) in June 2011, and allows for the 90-day processing time at NGB for Federal Recognition.   The applicant should receive all back pay and allowances that may have been lost as a result of this error.

9.  On 6 August 2013, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the U.S. Army Reserve.

	a.  Table 2-1 states the minimum time-in-grade requirements for promotion from 1LT to CPT is 2 years in the lower grade, and the maximum time in grade requirements for promotion from 1LT to CPT is 5 years in the lower grade.

	b.  Table 2-2 states the military education requirements for promotion from 1LT to CPT is completion of any resident officer basic course.  

	c.  Promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  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 military schooling.    

11.  National Guard Regulation 600-100 prescribes the policy, criteria, and procedures governing the promotion of commissioned officers of the ARNG.  

	a.  Paragraph 8-1 states promotion in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirement for promotion.

	b.  Paragraph 8-7 states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an officer must be in an active status, be medically fit, meet the height and weight standards, have completed the minimum years of promotion service, have completed the minimum civilian and military education, and have passed the physical fitness test.

	c.  Paragraph 8-8 states a commissioned officer must complete the minimum years of service prior to being considered for promotion and Federal recognition in the higher grade.  

	d.  Paragraph 8-14 states ARNG officers will be mandatorily considered for promotion as a Reserve commissioned officer of the Army when they meet minimum promotion service requirements prescribed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to CPT in the TXARNG with a DOR concurrent with his graduation from the BOLC.

2.  The evidence of record shows he completed BOLC on 16 May 2011.  After completing BOLC, he attempted to have his promotion packet boarded for consideration by the TXARNG FRB; however, due to administrative errors at the unit level, his packet was not sent to the State until December 2012, causing his packet to go before the DA Board.

3.  He contends he should be promoted to CPT under the unit vacancy system in the TXARNG; however, such relief is outside the limits of this Board.  As such, and due to his seniority within grade, he cannot be promoted by the State.

4.  He was considered by the FY13 AMEDD RC CPT Promotion Board; however, he was not selected because his college transcripts were not in his AMHRR.  The responsibility to review a Soldier's record for an upcoming promotion board belongs to the Soldier being considered.

5.  Implicit in the Army's promotion, retirement, and personnel systems is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant is a commissioned officer in the TXARNG.  He knew, or should have known, what it takes to get promoted.  The fact that he did not complete a review of his record does not constitute a material error.  Therefore, there is no basis for conducting an SSB.

6.  However, as a matter of equity and because of clear issues at the State level, as verified by NGB and recognized by the TXARNG, it would be appropriate that the applicant be reconsidered for promotion by a DA SSB, convened under the 2013 criteria.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  submitting his records to an SSB for promotion consideration to the grade of CPT, under the criteria of the FY13 AMEDD RC CPT Promotion Board;

	b.  if selected for promotion to CPT by the SSB, establishing his CPT promotion effective date and DOR as if he had been originally selected, and by providing him all back pay and allowances due as a result; and

	c.  if not selected for promotion, he should be so notified.

2.  The Board further determined 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 promoting the applicant to CPT under the TXARNG unit vacancy promotion system.




      _______ _   _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)                                         AR20110025089



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130010603



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1