BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20130016646 


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, promotion consideration to captain (CPT) by a Special Selection Board (SSB).  

2.  She states:

	a.  She was twice non-selected for promotion to CPT based on lack of civilian education.

	b.  She failed to meet the requirements because the time-in-grade (TIG) for promotion to CPT was reduced after she was commissioned and she was involuntarily deployed to Afghanistan during her junior year in college.  

   c.  Critical classes and internship were only offered in person at an approved social service agency with supervision, but they were not available during her deployment.

	d.  She had 30 semester hours of college completed when she was commissioned in October 2008 and was attending college part time.  

	e.  She works full time as a Military Technician for the U.S. Army Reserve (USAR).

   f.  In March 2009, the TIG requirement for promotion to CPT was reduced to 24 months with no grandfather clause for those who completed very little of college.  
   g.  She had to drop a semester of college when she was deployed, which caused her to graduate in May 2013 instead of May 2012.  She graduated six months after the convening date of her second promotion board.

3.  She provides:

* Email
* Memorandum, Subject:  Options upon Non-Selection for Promotion After Second Consideration
* Reserve Status Statement and Election of Options
* Bachelor of Social Work Degree
* Washburn University transcript 
* Letter addressed to a general officer
* Memorandum, Subject:  Fiscal Year (FY) 2013, CPT Reserve Component (RC) Army Promotion List (APL) Promotion Board Results
* Memorandum, Subject:  2013 CPT APL Non-Active Guard Reserve Promotion Selection Board
* Memorandum, Subject:  Request for Promotion Reconsideration Board First Lieutenant (1LT) [applicant], xxxx
* Memorandum, Subject:  Request for Reconsideration of 1LT [applicant] for Promotion to CPT 
* Letter addressed to a congressman
* Memorandum, Subject:  Promotion of RC 1LTs to CPT at 24 Months TIG
* Promotion orders 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the USAR, the applicant was appointed as a Reserve commissioned officer on 5 October 2008 in the rank of second lieutenant.  Her Washburn University transcript shows she had been awarded 34 credit hours from Allen County Community College between Spring 2007 and Spring 2008 semesters.  

2.  On 11 January 2009, she was ordered to active duty for training (ADT).  She completed the Adjutant General Basic Officer Leaders Course (BOLC) III on 
8 May 2009.  She was released from ADT on 8 May 2009.  

3.  On 25 March 2010, the Office of the Chief, Army Reserve issued a policy memorandum, Subject:  Promotion of RC 1LTs to CPT at 24 months TIG that adjusted the TIG requirements for Army Reserve 1LTs to be considered for promotion to CPT.  The memorandum stated this reduction in TIG requirements applied to Troop Program Unit (TPU), Active Guard Reserve (AGR), Individual Ready Reserve (IRR), and Individual Mobilization Augmentee (IMA) officers with the exception of Chaplain and Judge Advocate General officers.  In accordance with Title 10, U.S. Code, section 14303a(2), 1LTs cannot be promoted until they reach 24 months TIG.  

4.  On 25 June 2010, the Office of the Chief, Army Reserve issued a "Corrected Copy" of memorandum, Subject:  Promotion of RC 1LTs to CPT at 24 months TIG.  The TIG requirement was still adjusted to 24 months.  

5.  Orders 10-222-0002, dated 10 August 2010, show she was released from the 821st Transportation Battalion and reassigned to the 387th Adjutant General Battalion, effective 10 August 2010.  The additional instructions on these orders state "This assignment is for the convenience of the government..."

6.  Her Washburn University transcript shows she was awarded additional credit hours from Allen County Community College between Spring 2008 and Summer 2010, but she withdrew from her classes in Spring 2010 semester.  

7.  On 1 October 2010, she was ordered to active duty in support of Operation Enduring Freedom.  She served in Afghanistan from 9 October 2010 to 25 August 2011.  

8.  She was considered and not selected for promotion to CPT by the Reserve Component Selection Board (RCSB) which convened on 1 November 2011.  She was not qualified based on not meeting the civilian education requirement.

9.  She provided the following documents which indicate:  

	a.  Orders B-05-002803, dated 13 May 2010, she was promoted to 1LT with an effective date and date of rank of 4 April 2010.  

	b.  Letter, dated 19 January 2012, the Deputy Chief of Staff, G-1, Headquarters, USAR Command advised a Congressional Representative that the applicant was considered and non-selected for promotion by the November 2011 CPT Promotion Selection Board due to lack of civilian education.  The Congressional Representative was also advised that if the applicant failed to complete her bachelor's degree by the 12 November 2012 promotion board, she would be once again non-selected for promotion since she had already completed her military service obligation.  Further, the Congressional Representative was advised that there were currently no statutory provisions which authorized her retention; therefore, statute required she be removed from an active Reserve status not later than the first day of the seventh month after the President approves the board.  The G-1 stated the applicant had been advised she could pursue enlistment or appointment as a warrant officer or apply for reappointment as a commissioned officer upon completion of her degree. 

   c.  Memorandum, dated 12 October 2012, the applicant advised the President, 2013 CPT APL Non-AGR Promotion Selection Board she had reviewed her board file online.  She attested she would have completed her civilian education in May 2012 with her bachelor's degree in Social Work if she had not deployed.  She requested an exception and to be granted a promotion board deferment until May 2013 when she completed her civilian education.  

	d.  Washburn University diploma and transcript, she was awarded her Bachelor of Social Work on 10 May 2013.

   e.  Memorandum, dated 9 July 2013, the FY2013, CPT RC APL Promotion Board results show she was twice non-selected for promotion due to missing military or civilian education.  The memorandum indicated that education waivers were not authorized for this board.

   f.  Letter, dated 19 July 2013, she requested reconsideration for promotion to CPT based on her completion of educational requirement.  She stated that if selection in another branch met the needs for the Army Reserve, she would also be interested in a transfer to either the Transportation Branch or Quartermaster Branch.  

   g.  Memorandum, dated 25 July 2013, the commanding general (CG) of the 451st Sustainment Command requested the applicant be reconsidered for promotion to CPT based on her deployment status from October 2010 to October 2011, which delayed her graduation date from May 2012 to May 2013.  The CG stated the applicant was an exceptional officer who completed her degree.  

   h.  Memorandum, dated 31 July 2013, she was notified of the options available to her as a result of her second non-selection for promotion to CPT.  She provided a Reserve Status Statement and Election of Options; however, her elections were not indicated on the form. 

   i.  Memorandum, dated 2 August 2013, the CG of the 79th USAR Sustainment Support Command recommended approval of the applicant's request for reconsideration for promotion to CPT based on her civilian education requirement being met.  

   j.  Email, dated 6 August 2013, she was notified of her twice non-selection for promotion to CPT.
10.  She was considered and not selected for promotion to CPT by the RCSB which convened on 29 October 2012 and was approved on 1 July 2013.  She was not qualified based on not meeting the education requirement.

11.  On 25 October 2013, an advisory opinion was obtained from the Chief, Officer Promotion Management, U.S. Army Human Resources Command (HRC), who stated:

	a.  The TIG requirements to CPT for the promotion boards conducted for the period 2011-2016 were accelerated based on the memoranda from the Army Reserve G-1, dated 25 March 2010 and 25 June 2010, which are in contrast with the TIG requirements published in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1.

	b.  The applicant was appointed in 5 October 2008 as a direct commission and had sufficient time to pursue her civilian education requirements for CPT as required by Title 10, U.S. Code, section 12205.

	c.  The applicant contends she was involuntarily mobilized, but her records only show partial mobilizations for 13 to 14 November 2009, 1 to 3 October 2010, and a voluntary activation for the period 1 December 2009 to 30 September 2010.  It appears her delay in gaining her civilian education requirement was more self-induced than involuntary in nature.

	d.  Since the applicant was a direct commission, she was not eligible to request a Bachelor of Arts waiver.  All waiver requests are limited to Officer Candidate School (OCS) appointees.  She only met her civilian education requirement six months after her second promotion board convened; therefore, she has no grounds for an SSB reconsideration based upon any demonstrated material error.

12.  A copy of the advisory opinion was forwarded to the applicant to allow her to submit comments or a rebuttal.  She provided a response on 6 November 2013 and included orders (e.g., reassignment, active duty, deployment), and two DD Forms 214.  She stated:

	a.  The advisory opinion incorrectly states her records show partial mobilizations from 13 to 14 November 2009 and from 1 to 3 October 2010 and a voluntary activation for the period 1 December 2009 through 30 September 2010.

	b.  The only period of active duty she completed during the 2009 to 2010 time frame was from 11 January to 9 May 2009.  This period of active duty was not voluntary, but it was to complete BOLC.

	c.  She could not have been on active duty from December 2009 to 30 September 2010 because she was pregnant and gave birth on 10 February 2010.  

	d.  The advisory opinion also states she had sufficient time to pursue her civilian education requirements.  She states she was promoted in October 2008 and was required to complete a four-year degree prior to the October 2012 promotion board.  She asserts this would have been impossible since she lost a semester of college to attend BOLC and was deployed for 12 months.

13.  Orders published on 9 December 2013 show she was discharged from the USAR effective 1 February 2014.

14.  A review of her personnel records in the HRC, Integrated Web Services - Major Personnel Actions revealed she had partial mobilizations on 13 and         15 November 2009, 5 December 2009, 1 October 2010, and 4 October 2011.  

15.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.  

16.  Title 10, U.S. Code, section 12205 states that no person may be appointed to a grade above the grade of first lieutenant unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  The National Defense Authorization Act for Fiscal Year 1999 authorized the Secretary of the Army to waive, until 30 September 2000, this requirement for any officer who was commissioned through the OCS before 17 October 1998.  The waiver would be made on a case-by-case basis and could continue in effect for no more than two years after the waiver was granted.  

17.  The National Defense Authorization Act for Fiscal Year 2002 added section 12205(d) to Title 10, U.S. Code.  This section authorized the Secretary of the Army to waive the requirement to have a baccalaureate degree prior to promotion to captain for any officer who was commissioned through the Army OCS.  The waiver would be made on a case-by-case basis and may continue in effect for no more than two years after the waiver is granted.  Officers who have not earned a baccalaureate degree at the end of the period in which the waiver was granted are subject to discharge from active duty.  The new waiver authority has no expiration date.

18.  Title 10, U. S. Code, section 14504 provides that a 1LT of the reserve active-status list 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 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.

19.  By memorandum, dated 25 May 2010, the Office of the Chief, Army Reserve, Army Reserve G-1 announced:

	a.  Starting with the FY2011 CPT Department of the Army Reserve Component Mandatory promotion board and continuing through the FY2016 promotion board, TIG requirements for Army Reserve 1LTs to be considered for promotion to CPT will be adjusted per spreadsheet at enclosure 1 of reference 1a.

	b.  This reduction in TIG requirements applied to TPU AGR, IRR, and IMA officers with the exception of Chaplain and Judge Advocate General officers.  In accordance with Title 10, U.S. Code, Section 14303a(2), 1LTs cannot be promoted until they reach 24 months TIG.

20.  On 25 June 2010, the Office of the Chief, Army Reserve, Army Reserve G-1 issued a "Corrected Copy" of the previous memorandum, dated 25 May 2010.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve commissioned officer on 5 October 2008 in the rank of second lieutenant.

2.  She was promoted to 1LT on 4 April 2010.

3.  She was considered, but not selected for promotion to CPT by the 2012 and 2013 DA Reserve Components Selection Boards.

4.  The advisory opinion states the applicant's 2011 and 2012 board file failed to show she met the civilian education requirement.  Therefore, she was not educationally qualified for promotion to CPT.

5.  The evidence of record shows she was awarded her Bachelor of Social Work Degree on 10 May 2013, six months after the convening date of her second promotion board. 

6.  By law, a baccalaureate degree is required to be promoted to captain.  Waivers are only authorized for officers who were commissioned through OCS.  The applicant was a direct commission.

7.  In view of the foregoing, there is no basis for granting the applicant relief in this case.

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 that 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)                                         AR20130016646



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ABCMR Record of Proceedings (cont)                                         AR20130016646



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