IN THE CASE OF: 

		BOARD DATE:  26 March 2014

		DOCKET NUMBER:  AR20130010853 


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 by reinstating him in the Active Army Reserve and selecting him for promotion to lieutenant colonel (LTC)/pay grade O-5.

2.  The applicant states he was transferred from the Active Army Reserve to the Retired Reserve because he was not selected for promotion to LTC and had the maximum years of service (24 years).  At the time the LTC board met he had completed 50% of the Intermediate Level Education (ILE) which is the military education (MILED) requirement.  He should have been allowed to be selected for LTC but the board did not have knowledge that he met the MILED requirement.  He submitted the MILED waiver, but the records show him as not MILED qualified.  He has since completed ILE. 

3.  The applicant provides copies of:

* his memorandum for record, dated 25 May 2013
* his memorandum requesting reconsideration for promotion to LTC, dated 25 May 2013
* 88th Regional Support Command memorandum, Subject:  Selective Continuation (SELCON), dated 27 January 2013
* Military Personnel (MILPER) Message 12-313
* his Army Training Transcript, dated 11 May 2013
* his request for waiver of MILED requirement, dated 5 January 2013
* his DA Form 1059 (Service School Academic Evaluation Report)
* his U.S. Army Command and General Staff College transcript
* Orders 13-141-00066, Headquarters, 88th Regional Support Command, dated 21 May 2013
* his 20-year letter, dated 2 May 2013 
* Chronological Statement of Retirement Points, dated 28 June 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 30 April 1989.  He was promoted to major (MAJ)/O-4 on 26 March 2006.

2.  He was considered, but not selected, for promotion by the Fiscal Year 2013 (FY13) promotion board to LTC  

3.  He provides a memorandum displaying a timeline showing that on:

		(1)  31 October 2012, he received MILPER Message 12-313, announcing the FY13 LTC Army Promotion List (APL) Promotion Selection Board. 

		(2)  1 November 2012, he was notified by telephone that he was not educationally qualified due to not completing ILE.

		(3)  18 December 2012, he submitted his last ILE Phase 2 paper.  Due to sequestration constraints the paper was not graded until 30 December 2012. 

		(4)  3 January 2013, his board file closed per MILPER Message 12-313.

   	(5)  4 January 2013, he submitted a request for waiver of the MILED requirement.  He claimed he had completed Phases 1 and 2 of the ILE-Reserve Component.  He was experiencing civilian employment issues that were hindering his completion of Phase 3, but planned to finish Phase 3 in the next 70 days.

		(6)  8 January 2013, the LTC board convened.

		(7)  16 April 2013, he finished all 3 phases of ILE.

		(8)  19 April 2013, he called HRC and was told he was not educationally qualified.  The MILED waiver was not put into his LTC board file.

		(9)  20 April 2013, he was informed that he must be retired from the Active Army Reserve because he was not selected for promotion, had 24 years of service, and had 20 qualifying years for retirement. 
		(10)  21 May 2013, he received orders transferring him to the Retired Reserve effective 21 May 2013.  The reason is listed as maximum authorized years of service. 

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Branch, U.S. Army Human Resources Command (HRC).

	a.  The opinion stated the applicant's assertion that he was disadvantaged by not being granted a MILED waiver for promotion consideration to LTC is without merit and moot.

	b.  His waiver request was received on 7 January 2013, 30 days after the suspense date of 7 December 2012.  His waiver request was not endorsed by his command as required in MILPER Message 12-313.  Additionally, he did not meet the MILED requirement to request a MILED waiver as outlined in HQDA, Deputy Chief of Staff, G-1 policy dated 24 May 2010.

	c.  The applicant states he was 50% ILE, MILED completed which is true; however, 50% ILE is not the required course completion to request a MILED waiver.

	d.  The MILED requirement for promotion to LTC is completion of 50% of the Command and General Staff Officer's Course (CGSOC) or completion of Intermediate Level Education-Common Core (ILE-CC). 

	e.  In order to be granted a MILED waiver for promotion, Soldiers must have served 12 or more cumulative months of outside continental United States (OCONUS) deployment time within the 36 months preceding the convening date of their mandatory promotion board and must have completed the first two phases of ILE-CC.

5.  On 5 August 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to submit a rebuttal statement.  No response was received.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of the USAR.

	a.  Commissioned officers must complete 50% of CGSOC not later than the day before the selection board convening date to qualify for promotion selection to LTC.
7.  On 31 August 2006, DA, Office of the Deputy Chief of Staff, G-1, issued a memorandum, Subject: Reserve Component Promotion Board Military Education Waiver Guidance.  It states, in pertinent part, that the military education requirement for LTC Reserve Component Selection Board (RCSB) is 50% completion of legacy Command and General Staff Officer Course (CGSOC) or 100% completion of ILE-CC or equivalent.  In order to be eligible for a military education waiver, an officer must complete, at a minimum, Phases 1 and 2 of the non-resident ILE-CC.

8.  Army Regulation 135-155 states promotion reconsideration by an 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, that 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.

9.  Title 10, USC, section 14506 (Effect of Failure of Selection for Promotion: Reserve Majors of the Army, Air Force, and Marine Corps, and Reserve Lieutenant Commanders of the Navy) states unless retained as provided in section 12646, 12886, 14701, or 14702 of this Title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the later of the first day of the month after the month in which the officer completes 24 years of commissioned service, or 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.

10.  Title 10, U.S. Code, section 14513 (Failure of Selection for Promotion: Transfer, Retirement, or Discharge) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to reinstate him in the USAR and select him for promotion to LTC.  He contends his MILED waiver was not available to the LTC promotion board.

2.  The evidence of record clearly shows the applicant did not meet the military education requirement for selection to LTC.

3.  The advisory official states the applicant's MILED waiver request was not endorsed by his command, and was received 30 days after the suspense date announced in MILPER Message 12-313.  Additionally, he did not meet the MILED requirement to request a MILED waiver.  He had not completed Phase 
2 of the ILE-CC.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20110021833



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ABCMR Record of Proceedings (cont)                                         AR20130010853



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