IN THE CASE OF:	

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018665 


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 promotion to captain (CPT) in the U.S. Army Reserve (USAR) and correction of the spelling of his last name on his USAR discharge orders.

2.  The applicant states he was accepted into the U.S. Army (USA) Engineer Branch in July 2010 when he was transferred from the U.S. Air Force (USAF).  During the CPT promotion selection board, he was disqualified due to the lack of educational qualification.  The promotion board stated the USAF Engineering School (properly known as the USAF Flight Engineer School) and the training he received were not equivalent to the USA Engineer School and training.  Therefore, he was not going to be promoted.  The decision came in on 27 September 2013 and he was informed on 9 October 2013.  The Promotions Office informed him that due to two-time non-selection based on the educational qualification, and since he did not have enough time to correct this, he was going to be discharged.  From the time he was accepted into the USA Engineer Branch to the discharge notice, there was no administrative guidance informing him of the lack of educational qualification.  Therefore, the decision was made due to no fault of his and there was still no way to remedy the action given the amount of time he had.  The Promotions Office informed him that the next selection board would be 28 October 2013.

3.  The applicant provides:

* Air National Guard (ANG) initial appointment and extension of Federal recognition orders, dated 23 April 2004
* Air Force Form 133 (Oath of Office (Military Personnel)), dated 23 April 2004
* USAF/ANG DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 31 May 2006
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 18 August 2008
* DA Form 61 (Application for Appointment), dated 10 October 2009
* USAR appointment memorandum, dated 21 September 2010
* USAR appointment orders, dated 21 September 2010
* USAR reassignment orders, dated 7 October 2010 and 4 August 2011
* Acquisition Career Record Brief, dated 16 April 2012
* DD Forms 368 (Request for Conditional Release), dated 1 December 2011, 4 May 2012, 21 June 2012
* memorandum, dated 21 June 2012, subject:  Request for Conditional Release to the USAF Reserve (USAFR)
* DA Form 4187 (Personnel Action), dated 23 July 2013, Request for Constructive Credit
* USAR discharge orders, dated 23 July 2013
* memorandum, dated 27 September 2013, subject:  Request Waiver for Engineer Basic Officer Leader Course (BOLC) Attendance Based on Previous Civilian Education and/or Accreditation for (Applicant)
* Fiscal Year (FY) 2012 CPT Army Promotion List (APL) Non-Active Guard Reserve (AGR) Promotion Selection Board (PSB) file (Applicant), non-select
* FY13 CPT APL Non-AGR PSB file (Applicant), non-select
* Air Force Institute of Technology transcripts
* college transcripts
* training certificates
* email correspondence

CONSIDERATION OF EVIDENCE:

1.  Following enlistment in the USAR Delayed Entry Program, the applicant enlisted in the Regular Army (RA) on 8 March 1995.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows his first name spelled as "Oxxxxtuegxu."

2.  He was discharged from the RA under honorable conditions (general) on 9 December 1997 by reason of unsatisfactory performance.  He held military occupational specialty 68G (Aircraft Structural Repairer).  His DD Form 214 for this period of service shows his first name spelled as "Oxxxxtuegxu."

3.  He enlisted in the Colorado Army National Guard (ARNG) on 26 November 2001.  He was honorably discharged from the COARNG on 28 May 2003 (enlistment in another component).  

4.  He enlisted in the Colorado Air National Guard on 29 May 2003.  He was discharged from the Colorado Air National Guard on 22 April 2004 to accept an appointment as a commissioned officer.  Both his enlistment contract and NGB Form 22 shows his first name spelled as "Oxxxxtuegxu."

5.  He was appointed in the Colorado Air National Guard and executed an oath office on 23 April 2004.  He entered active duty on 31 May 2005 and subsequently served in Iraq.  He was honorably released from active duty on 31 May 2006.  His DD Form 214 for this period shows his first name spelled as "Oxxxxtuegxu."

6.  He was promoted to first lieutenant (1LT) 23 April 2006.  He was honorably discharged from the Air National Guard in the rank of 1LT on 18 August 2008 (physical disqualification).  His NGB Form 22 for the period 23 April 2004 through 18 August 2008 shows his first name spelled as "Oxxxxtuegxu."

7.  On 10 October 2009, he submitted an application for appointment in the USAR.  With his application, he submitted his college transcripts, certificates, and documents pertaining to his prior service.  He listed his first name spelled as "Oxxxxtuegxu."

8.  He was appointed as a Reserve commissioned officer of the Army effective 5 October 2010.  His appointment memorandum shows his first name spelled as "Oxxxxtuegxu."

9.  On 31 August 2011, Military Personnel (MILPER) Message 11-265 announced the mandatory Department of the Army (DA) PSB for FY12 would convene on or about 1 November 2011 to consider 1LT's for promotion to CPT.

* the above-the-zone date of rank (DOR) was 31 December 2009 and earlier and the promotion-zone DOR was 1 January 2010 to 30 November 2010
* the military educational requirement that must be completed before the convening date of this board was in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), table 2-2
* the military educational requirement was 100-percent completion of the Officer Basic Course (OBC) or the BOLC or higher
* officers not educationally qualified would not be selected for promotion
10.  He was considered for promotion to CPT by the FY12 CPT APL Non-AGR PSB that convened on 1 November 2011 and recessed on 10 November 2011, but he was not selected for promotion.  He had not completed BOLC.

11.  On 18 July 2012, MILPER Message 12-222 announced the mandatory DA PSB for FY13 would convene on or about 29 October 2012 to consider 1LT's for promotion to CPT.

* the above-the-zone DOR was 30 November 2010 and earlier and the promotion-zone DOR was 1 December 2010 through 31 July 2011
* the military educational requirement that must be completed before the convening date of this board was in accordance with Army Regulation 135-155, table 2-2
* the military educational requirement was 100-percent completion of the OBC or BOLC or higher; officers not educationally qualified would not be selected for promotion

12.  He was considered for promotion to CPT by the FY12 CPT APL Non-AGR PSB but he was not selected for promotion.  This board convened on 29 October 2012 and recessed on 10 November 2012.  He had not completed BOLC.

13.  HRC Orders D-07-311849, dated 23 July 2013, honorably discharged him from the USAR.  These orders show his first name spelled as "Oxxxxtuegxa."

14.  On 23 July 2013, the applicant submitted a DA Form 4187 (Personnel Action) requesting constructive credit.

15.  In a memorandum from the U.S. Army Engineer School, dated 27 September 2013, subject:  Request Waiver for EBOLC Attendance Based on Previous Civilian Education and/or Accreditation for (Applicant), the Chief of the Engineer Personnel Development Office (EPDO) notified the applicant that:

	a.  The EPDO and the Engineer School reviewed his documents and, based on that review, he could receive credit for the construction (General Engineering) portion of the EBOLC.  He had not earned credit for completing any portion of the Deputy Commanding General for Initial Military Training-approved common core. He also had not earned credit for completing any of the U.S. Army Engineer School tactical training required for an Army engineer officer.

	b.  After receiving credit for the General Engineering portion of the EBOLC, he still had a substantial portion of the EBOLC to complete.  The exact amount of time depended on the time he arrived, the amount of resident classes in session, and the ability to schedule his attendance.  He would need to be at Fort Leonard Wood, MO, for approximately 19 weeks when scheduled and would attend multiple lessons in multiple EBOLC classes.

	c.  Upon full review, the EPDO determined that approving this waiver was not in the best interests of the applicant and the Army.  Therefore, an educational waiver was disapproved.

16.  On 17 January 2014, an advisory opinion was received from HRC in the processing of this case.  HRC recommended disapproval of the applicant's request.  The advisory official stated:

	a.  The applicant transferred from the USAF to the USA on 21 September 2010 apparently as part of the Blue to Green Program.  He was considered and subsequently non-selected by both the FY12 and FY13 RC CPT APL PSB's due to his lack of the required military education, EBOLC.

	b.  He never displayed the due diligence to contact his respective career manager or officer promotions proponent to determine the rationale for his initial non-selection.  However, following the second non-selection, he contacted the officer promotions proponent on 12 August 2013 regarding his completion of the USAF OBC.  In the course of the ongoing series of discussions, the applicant was facilitated through the Army G-3/G-5/G-7 Equivalent Credit Process.  Unfortunately, after the recommendation from the EPDO and the Engineer School on 27 September 2013, it was ultimately determined on 8 October 2013 by the Army G-3/G-5/G-7 Equivalent Credit Process that the USAF course was not equivalent and required 19 additional weeks of tactical training 
(i.e., EBOLC-B) to merit equivalent credit.  If the applicant had displayed the same due diligence after the first non-selection or earlier, he would have more than sufficient time to meet the associated military educational requirement for promotion to CPT.

17.  On 18 February 2013, he submitted a rebuttal in which he stated:

	a.  He never knew about the requirement for military training (19-week course requirement) until it was too late to react or do anything about it.  In fact, he still would not have found out about it if he had not been passed over for promotion.  When he accepted appointment into the Engineer Branch of the USAR from the USAF, neither his unit administrator nor his officer career manager mentioned anything about completing the Engineering Personnel Course.  He performed his duties with the notion that everything was alright.

	b.  It was not until he began inquiring that he found out this training is required, but by then it was too late to react or do anything.  His civilian employer is understanding and would have allowed him to complete the course.  He is still available to complete this course if given the opportunity.

18.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  Table 2-1 (Time in Grade Requirements for Commissioned Officers Other Than Commissioned Warrant Officers) outlines the service requirements for promotion and indicates that for promotion to CPT, the minimum years of service in the lower grade is 2 years and the maximum years of service in the lower grade is 5 years.  Table 2-2 states the military educational requirement for promotion to CPT is 100-percent completion of OBC or BOLC or higher.

19.  Title 10, U.S. Code, section 14504, states a 1LT on the Reserve Active Service List of the Army, Air Force, or Marine Corps, or a lieutenant (junior grade) on the Reserve Active Service List 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 USAR in the rank of 1LT on 5 October 2010.  He knew or should have known of the requirement to complete BOLC or should have asked if his USAF training was the equivalent of Army training.  He did not complete this course.

2.  He was twice considered by a mandatory board and each time he was not selected for promotion.  The MILPER message for each board clearly stated the military educational requirement was 100-percent completion of OBC or BOLC or higher, and that officers not educationally qualified will not be selected for promotion.

3.  It was not until his second non-selection that he submitted a request for an educational waiver.  His request was disapproved because it was ultimately determined by the Army that the USAF course he had previously completed was not equivalent and required additional training to merit equivalent credit.

4.  Since he neither completed the basic course nor received equivalent credit, nor inquired in a timely manner (i.e., after his first non-selection) he was not qualified for promotion and thus he could not be promoted.  Since he twice failed promotion, he was required to be discharged by legal statute.  There is neither an error nor an injustice in his discharge.

5.  His discharge orders, however, contain a typographical error.  His spelling of first name should be corrected to end in the letter "u" instead of the letter "a."

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 amending HRC Orders D-07-311849, dated 23 July 2013, pertaining to his discharge from the USAR to show his first name ending with the letter "u" instead of the letter "a."

2.  The Board further determined 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 his promotion to CPT.



      _____________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)                                         AR20130018665



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ABCMR Record of Proceedings (cont)                                         AR20130018665



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