IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130013173 


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 date of rank (DOR) to captain (CPT) from 11 September to 27 July 2009.

2.  The applicant states he was supposed to be promoted to CPT when his degree was completed; however, the trustees did not convene until
11 September 2009.  Due to the delay, he missed the cut-off to appear before the fiscal year (FY) 2013/14 major (MAJ) promotion board. 

3.  The applicant provides a letter from Thomas Edison State College (TESC), subject Degree Completion:  BA (Bachelor of Arts) Liberal Studies, dated          11 June 2013.

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.  The applicant was appointed as a Reserve Commissioned Officer in the rank of second lieutenant (2LT) on 29 September 2004.  He was promoted to first lieutenant (1LT) on 22 June 2006.

3.  The applicant's record contains a diploma from TESC that shows his BA degree was conferred upon him on 11 September 2009.

4.  Orders B-09-906376, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 14 September 2009, promoted the applicant to CPT, effective 11 September 2009.

5.  The applicant provides a letter issued by the Assistant Director, Office of Military and Veterans Education, TESC, dated 11 June 2013, who states after a careful review of the applicant's current academic evaluation and transcripts it has been determined that he successfully completed all requirements to earn the BA degree in Liberal Studies as of 27 July 2009.

6.  In the processing of this case, on 3 September 2013, an advisory opinion was provided by the Chief, Officer Promotions, HRC, Fort Knox, KY.  The advisory official stated the applicant's assertion that his DOR to CPT is in error and that he was to be promoted to CPT when his degree was completed may have merit; however, his transcripts and diploma would need to be corrected to reflect
27 July 2009.  Although he completed his course work, HRC can only use the date on the transcripts and/or diploma to promote officers who were considered educationally qualified for civilian education.

7.  On 10 September 2013, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit commends or a rebuttal.

8.  On 10 October 2013, the applicant rendered a rebuttal to the advisory opinion.  In his rebuttal he stated the reason his diploma was dated 11 September 2009 was because that was the date the Board of Trustees convened and dated all the certificates and diplomas; however, he completed his course work in June 2009 and TESC determined he completed his degree requirements on 27 July 2009.  His transcripts were then uploaded into his military personnel record on
12 August 2009.  He further states he requested an adjustment to his DOR to CPT so that he could appear before the FY 13/14 MAJ/O-4 Promotion Board.  The cut-off date to appear below the zone was 31 August 2013, which if his DOR was not adjusted, he would miss by eleven days and fall behind his commissioning class.  He further states if the ABCMR grants his request and it 


was too late to appear before the board, he requests a Special Selection Board (SSB) to consider him for a below the zone promotion to MAJ.

9.  Title 10, U.S. Code, section 12205 provides that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard unless that person has been awarded a baccalaureate degree by a qualifying educational institution.

10.  Army Regulation 600-8-29 (Officer Promotions), paragraph 7-3d states an officer will not be considered or reconsidered for promotion by an SSB when the consideration in question involves an officer below the promotion zone.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his DOR to CPT from 11 September to
27 July 2009 has been carefully examined.

2.  The applicant's BA degree was conferred upon him on 11 September 2009; however, evidence shows he successfully completed all requirements to earn his BA degree in Liberal Studies as of 27 July 2009.  In view of the foregoing, the applicant's records should be corrected as recommended below.

3.  Additionally, based upon the applicant's amended DOR to CPT, the applicant believes he should be considered for an SSB; however, there is no provision in the regulation which provides for below the promotion zone consideration by an SSB.  

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 all Department of the Army records of the individual concerned be corrected by:
   
   a.  showing the applicant was awarded his BA degree on 27 July 2009 (but ceremoniously presented his degree on 11 September 2009); and 

   b.  amending his DOR to CPT to 27 July 2009.

2.  The Board further determined that the evidence presented was 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 granting him an SSB to consider him for a below the zone promotion to MAJ.




      ____________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)                                         AR20130013173



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013173



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1