IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130016408 


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 reconsideration of the portion of his previous application pertaining to:

* promotion reconsideration by a Special Selection Board (SSB) for promotion to lieutenant colonel (LTC)/O-5 under the criteria for Fiscal Year (FY) 2008 and FY 2009 
* reconsideration of his application for appointment as an Engineer Branch warrant officer 

2.  He submits a new request for authorization to attend the Army War College if he is selected for promotion to LTC/O-5.  

3.  He states:

	a.  On 22 August 2013 the Army Board for Correction of Military Records (ABCMR) determined a General Officer Memorandum of Reprimand (GOMOR) and all supplemental documentation should be expunged from his record.  The Board further determined there was no evidence showing he had completed the required military education to be considered for promotion to LTC/O-5.  He has completed the required military education and therefore should be considered by an SSB under the criteria for FY 2008 and 2009.  

	b.  In order to be competitive for promotion to colonel (COL)/O-6 based on the date of rank (DOR) that would be established if he is selected for promotion to LTC/O-5 by an SSB, he should be authorized to attend the Army War College.  His current mandatory removal date (MRD) is 1 September 2015; however, as a military technician, he can extend his MRD to age 60.

	c.  If he is not selected by an SSB for promotion to LTC/O-5, he requests an SSB to reconsider his 2011 application for direct appointment as an engineer warrant officer.  The packet [he originally submitted] required a moral waiver due to a GOMOR that is being expunged from his Army Military Human Resource Record (AMHRR).  Though the warrant officer selection board does not record reasons for nonselection, it is evident that the moral waiver request based on the GOMOR had a material influence.  A special board should consider his application under 2011 standards without a moral waiver to determine the merits of his application. 

4.  He provides:

* Officer Record Brief (ORB)
* DA Form 1059 (Service School Academic Evaluation Report)
* e-mail 
* printout of his Integrated Total Army Personnel Database-Reserve (ITAPDB-R) record

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120014314 on 22 August 2013.

2.  Having had prior enlisted service in the Regular Army and U.S. Army Reserve (USAR), on 19 August 1987 the applicant was commissioned as a second lieutenant/O-1 in the USAR.  He was promoted to major/O-4 on 14 October 2001.  

3.  On 5 June 2007, the applicant received a GOMOR from the Commanding General, 90th Regional Readiness Command.  After considering the applicant's rebuttal, the imposing authority directed the GOMOR be filed in the performance portion of the applicant's AMHRR.

4.  A DA Form 1059, dated 17 June 2008, shows he achieved course standards for U.S. Army Command and General Staff College (CGSC) 1-250-ILE (Intermediate Level Education) (Common Core) (hereafter referred to as ILE).

5.  A remark, dated 7 February 2010, entered in the transaction history of the applicant's U.S. Army Human Resources Command (HRC) Integrated Web 
Services (IWS) record states the applicant was twice non-selected for promotion by the 2009 LTC Army Promotion List board.  He was not recommended for continuation; therefore, he was to be removed from an active status no later than the first day of the seventh month after the month in which the board was approved.

6.  In a memorandum, subject:  Involuntary Separation Board Results - [Applicant], dated 16 March 2010, the Commander, U.S. Army Reserve Command, notified the Commander, HRC-St. Louis, that the applicant would be retained.  

7.  On 20 June 2010, the Commander, HRC-St. Louis, notified the applicant that he would be retained in the USAR.

8.  On 15 July 2010, Headquarters, 88th Regional Support Command, Fort McCoy, WI, issued Orders 10-196-00013 releasing him from assignment and transferring him to the Retired Reserve effective the date of the orders.  The orders show the reason for the transfer was completion of 20 or more years of qualifying service for retired pay at age 60.

9.  Remarks entered in the HRC IWS transaction history, dating from January through April 2011, show the applicant:

* submitted an application for appointment as a warrant officer in an engineer military occupational specialty (MOS)
* was qualified for the MOS in which he was seeking appointment
* would need a two-time passover waiver if selected
* had a moral waiver
* was not selected by the January 2011 Officer Direct Commission Board

10.  On 22 August 2013, in ABCMR Docket Number AR20120014314, the Board recommended that the GOMOR and all associated documents be removed from the applicant's AMHRR.  The Board recommended denial of the portion of his application pertaining to SSB's, military education waivers, reinstatement in the active Reserve, pay for LTC/O-5, DOR adjustment for LTC/O-5, correction of retirement points, extension of his MRD, authority to compete for COL/O-6, and reconsideration for the Engineer Warrant Officer Program.  

11.  The Record of Proceedings for ABCMR Docket Number AR20120014314 shows the basis for denying his request to have his record reviewed by an SSB was that he had not met the military education requirement for promotion to LTC/O-5.   

12.  The GOMOR and related documents have been removed from the applicant's AMHRR in accordance with the approved ABCMR recommendation.
 
13.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy for selecting and promoting commissioned officers of the USAR.

	a.  Table 2-1 shows that for promotion from MAJ to LTC, an officer must have a minimum of 4 years and a maximum of 7 years in the lower grade.

	b.  Table 2-2 shows the military education requirement to qualify for promotion to LTC is completion of 50 percent of the Command and General Staff Officers Course (CGSOC).  

	c.  Paragraph 3-19d(2) states records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines that an officer's record contained a material error.

	d.  Material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's non-selection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

	e.  Paragraph 3-19g states applications for promotion reconsideration will be sent through command channels to the Chief, Office of Promotions (RC), HRC. As an exception, area commanders will disapprove applications for SSB consideration from officers not meeting the minimum military education requirements or civilian education requirements without referral to HRC.

14.  The HRC website states that, for USAR and Army National Guard Lieutenant Colonel promotion boards, the education requirement is 50% completion of legacy CGSOC or 100% completion of ILE or equivalent.

15.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  

	a.  It states that, based on the needs of the Army, warrant officers who meet the standards described in paragraph 1-6 (Eligibility Criteria) may be appointed to fill:
* mobilization table of distribution vacancies 
* Ready Reserve troop program unit vacancies based on MOS requirements
* Ready Reserve reinforcement openings for assignment to the Control Group (Reinforcement)
* active duty requirements under specific allocations announced by Headquarters, Department of the Army, when qualified Reserve warrant officers are not available  

	b.  Paragraph 1-6 states, in part, that the Army goal is to access warrant officers with 8 or less years of service.

16.  Army Regulation 135-100 does not provide for reconsideration of applications from individuals who were not selected for appointment as warrant officers.

17.  The HRC website states USAR officers must apply to be considered to attend the Army War College.  Applications are accepted during an annual window that is announced to the field via a military personnel (MILPER) message that describes the eligibility criteria.  Officers may be selected to attend the resident course or to complete the Army War College Distance Education Program.

DISCUSSION AND CONCLUSIONS:

1.  The evidence supports the applicant's request for promotion reconsideration by an SSB for promotion to LTC/O-5 under the criteria for FY 2008 and FY 2009.  

	a.  The Record of Proceedings for AR20120014314 incorrectly indicated he had not completed the military education requirement to be eligible for consideration for promotion to LTC/O-5.  The record shows he had completed ILE, which fulfilled the education requirement.  

	b.  The GOMOR present in his record when he was considered by the FY 2008 and FY 2009 promotion boards has been removed.  If not for the presence of this document at the time he was considered, it appears that there would have been a reasonable chance that he would have been recommended for promotion.  

	c.  Accordingly, it would be appropriate for an SSB to consider him for promotion to LTC/O-5 under the criteria for FY 2008 and, if not selected under those criteria, under the criteria for FY 2009.  
	d.  If he is not selected for promotion under the criteria for either year, he should be informed of the decision and no further action should be taken.

	e.  If he is selected under the criteria for either year, his record should be corrected by:

		(1) revoking the orders transferring him to the Retired Reserve,

		(2) establishing his LTC/O-5 promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB, and

		(3) providing him all back pay and allowances due as a result.  

2.  The available evidence does not support his request for reconsideration of his application for appointment as an Engineer Branch warrant officer if he is not selected for promotion to LTC/O-5.  The reasons a board does not select an individual for appointment are not published, and for any given board, there may be any number of reasons an individual is not selected.  While the presence of a GOMOR may have been the reason for nonselection, the reason could just as easily have been the availability of positions, his years of service, or some other factor.  In any event, there are no provisions of regulation providing for the reconsideration of an application for appointment based on material error.  

3.  The available evidence does not support his request for authorization to attend the Army War College if he is selected for promotion to LTC/O-5 by an SSB.  USAR officers are selected to attend the Army War College through a competitive application process.  It would be unfair to authorize the applicant to attend the Army War College without the benefit of that process.  If he is selected for promotion to LTC/O-5 by an SSB, he may submit an application in accordance with the applicable MILPER message.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20120014314, dated 22 August 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his record to an SSB for reconsideration for promotion to LTC/O-5 under the criteria for FY 2008 and, if not selected under those criteria, under the criteria for FY 2009. 

2.  If selected for promotion by the SSB and if otherwise eligible, his record should be corrected by revoking the orders transferring him to the Retired Reserve, establishing his LTC/O-5 promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due as a result.

3.  If he is not selected for promotion by the SSB, he should be so notified by the appropriate promotion officials.

4.  The Board further determined that 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 reconsideration of his application for appointment as an Engineer Branch warrant officer if he is not selected for promotion to LTC/O-5 and authorization to attend the Army War College.



      ____________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)                                         AR20130016408





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ABCMR Record of Proceedings (cont)                                         AR20130016408



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