IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130015946 


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, in effect, consideration by a special selection board (SSB) for promotion to captain (CPT) in the U.S. Army Reserve (USAR). 

2.  The applicant states her promotion board information was submitted to the unit administrator but was never uploaded into her board file.  As a result, she was a two-time non select for promotion to CPT.  Her former unit administrator failed to assist her on several occasions.

3.  The applicant provides:

* Social Security Administration verification printout
* DA Form 2823 (Sworn Statement)
* Letter to the Promotion Board President
* Extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers)
* Military Personnel (MILPER) Messages Number 11-288 and 12-283, dated 23 September 2011 and 14 September 2012 respectively

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army, Army Nurse Corps (ANC) in the rank of first lieutenant (1LT) and executed an oath of office on 30 November 2010.  

2.  Based on award of constructive service credit, the applicant's date of rank was adjusted to 30 May 2009.  She was assigned to the 371st Minimal Care Detachment, a troop program unit of the USAR in Twinsburg, OH. 

3.  She was considered for promotion to CPT by the Fiscal Year 2012 CPT Army Medical Department (AMEDD) Army National Guard (ARNG), Army Reserve Active Guard Reserve, (AR-AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR) Competitive Category Army Promotion Selection Board.  This promotion board convened on or about 9 January 2012.  She was not selected for promotion. 

4.  She completed the Reserve Component (RC) AMEDD Basic Officer Leader Course (BOLC) from 22 February 2013 to 18 March 2013. 

5.  She was considered for promotion to CPT by the Fiscal Year 2013 CPT AMEDD, AR-AGR, AR Non-AGR, and ARNG Competitive Category Army Promotion Selection Board.  This promotion board convened on or about 27 November 2012.  She was not selected for promotion.

6.  She was honorably discharged from the USAR on 1 October 2013 by reason of being two-time non-select for promotion to CPT.

7.  An advisory opinion was obtained on 14 November 2013 from the Office of Promotions at the U.S. Army Human Resources Command (HRC).  An advisory official recommended partial approval of her request and stated: 

	a.  Based on review, HRC finds that [Applicant’s] request for reconsideration of promotion by an SSB does have partial merit.  She was released from the Army Reserve due to being a two-time non-selectee for promotion to CPT (in part), based on her not being militarily educationally qualified under the Fiscal Year 2013 criteria.  We have affirmed that she did not review or certify her board file prior to the convene date of the board.  However, her Officer Classification as an Army Nurse allows her up to 3 years from the date of appointment (in accordance with Army Regulation 135-155, Table 2-2, note 8) to complete the AMEDD resident RC BOLC.  Therefore, she could (upon request) have been granted a waiver prior to the convene date of the board. 

	b.  Further speculation for her Fiscal Year 2012 nonselection and any boards prior are unknown because statutory requirements set forth in Title 10, U.S. Code, Section 14104, prevent disclosure of board proceedings to anyone outside the promotion board in question.  Due to her current nonmilitary status, an approval for an SSB (with a retroactive military education waiver) can only be directed by the ABCMR.  Any promotion or associated back pay and allowances will only occur upon a favorable outcome that leads to promotion, which may also include placement or reinstatement on the Reserve Active Status List (RASL) if applicable.

8.  The applicant was provided with a copy of this advisory opinion.  She responded on 23 December 2013 and indicated her desire to be considered by an SSB based on the error.

9.  Army Regulation 135-155 states promotion consideration 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.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.  

	a.  Paragraph 2-2 states to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date.

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

	c.  Table 2-2 states the military educational requirements from 1LT to CPT is a resident officer basic course.  AMEDD officers, regardless of grade in which appointed, other than Specialized Training Assistance Program participants and certain Medical Specialist Corps officers, appointed on and after 1 June 1986 are required to complete the AMEDD resident RC basic course within 3 years after appointment.  

10.  Title 10, U.S. Code, section 14504 states a first lieutenant on the RASL of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the RASL of the Navy who has failed of selection for promotion 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 be separated in accordance with section 14513 of this title not later than 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




DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the ANC in the USAR on 30 November 2010 with a DOR of 30 May 2009.  She was considered for promotion to CPT by the Fiscal Year 2012 CPT Promotion List but she was not selected.  The reason for her non-selection is unknown since promotion boards do not disclose the reason for selection or non-selection of an officer. 

2.  She completed the RC AMEDD BOLC from 22 February to 18 March 2013 which made her educationally qualified.  The Fiscal Year 2013 promotion board convened on 27 November 2012 and considered her non-educationally qualified and she was again not selected for promotion.  As required by law, she was discharged from the USAR after having been twice not selected for promotion.  

3.  However, the regulation governing promotion of ANC officers allows ANC officers to complete BOLC within 3 years of appointment date.  She was appointed on 30 November 2010 and would have been authorized to complete BOLC by 30 November 2013.  She could have requested a military education waiver but for unknown reason she did not do so.  

4.  Although there is no error or injustice in her promotion consideration and/or ultimate discharge, as a matter of equity her record should be corrected to show she applied for and was granted a military education waiver.  As such, she would also be entitled to consideration by an SSB under the 2013 year criteria.  

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing she applied for and was granted a military education waiver for the Fiscal Year 2013 promotion board only; 
	b.  submitting her record to a duly-constituted SSB for promotion reconsideration to CPT based on the 2013 year criteria;

	c.  if she is selected for promotion, correcting her records to show she met all the eligibility criteria for promotion (e.g., being assigned to a CPT's position or being in an active status) effective the date of release of the applicable promotion selection board, promoting her to CPT with the appropriate date of rank, and paying her any associated back pay and allowances as a result of the corrections; and

	d.  if selected and the applicant meets all prerequisites for promotion, her records should be further corrected by:

		(1)  showing the October 2013 discharge from the U.S. Army Reserve is void and of no force or effect,

		(2)  crediting her with qualifying service for Reserve retirement for her respective retirement years from the dates of her now-voided discharge to the date of return to the active Reserve;

		(3)  placing an adequate explanation in her records explaining the gap in her officer evaluation reports from the dates of her now-voided discharge to the date of return to an active Reserve status, showing the gap was caused due to no fault of the applicant, and ensuring she is not prejudiced in the consideration of any future personnel actions; and

	e.  If she is not selected by the duly-constituted SSB she should be so notified.




      _______ _   _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)                                         AR20130015946



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ABCMR Record of Proceedings (cont)                                         AR20130015946



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