IN THE CASE OF:	

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130020225 


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 reconsideration to lieutenant colonel (LTC) in the Army National Guard (ARNG) under the Fiscal Year 2013 (FY13) year criteria.

2.  The applicant states:

   a.  His promotion packet for promotion to LTC was not reviewed because his State, South Carolina, did not submit a military education (MILED) waiver through the electronic tracker (E-tracker).  The MILED waiver was completed, on-time, and he met the requirements for the MILED waiver.  The State, due to training issues on a new system, failed to click submit for the completed MILED waiver to be seen by the board.  Therefore, he was not selected due to the MILED not being met.  His record should have included the completed MILED waiver.  

   b.  Had the MILED waiver accompanied his Department of the Army (DA) board packet, he believes the National Guard Bureau (NGB) and U.S. Army Human Resources Command (HRC) would have forwarded his packet to DA for approval.  He had been deployed for 12 months within three years of the board.  He had completed Phases I and II of the Intermediate Level Education (ILE) and had a reserved seat in the Army Training Requirements and Resources System (ATRRS) for Phase III.

3.  The applicant provides copies of the following:

* ILE reservation notification
* ATRRS update
* extension request approval email
* two requests for MILED waiver memoranda
* three Director's Personnel Readiness Overview (DPRO) print screens
* memorandum of support from the SCARNG Deputy Chief of Staff, Personnel

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the SCARNG, as a second lieutenant, on 31 July 1999.  He was promoted to major (MAJ) on 21 March 2008.

2.  In a memorandum, dated 5 March 2012, the NGB stated for promotion from MAJ to LTC the military education required was ILE, and MILED waivers were authorized for promotion to the grades of MAJ and LTC only. 

3.  He provided copies of the following:

   a.  An email correspondence, dated 24 October 2012, wherein he was advised of a reservation for the 701-1-250-ILE Common Core (CC).

   b.  ATRRS reservations, dated 24 October 2012, which show he was scheduled for the ILE CC to begin on 4 February 2013.

   c.  An email correspondence, dated 15 November 2012, wherein he was advised that his request for an extension had been approved with a new end date of 21 March 2013.  The SCARNG official stated that the applicant was currently enrolled in Phase III of ILE with dates from 4 to 15 February 2013.  Once the applicant completed Phase III, he would have met all the educational requirements.

   d.  A memorandum, dated 10 December 2012, wherein the Deputy Chief of Staff for Personnel, SCARNG, requested a MILED waiver for the applicant.  The SCARNG official stated that the applicant was currently enrolled in Phase III of ILE with dates from 4 to 15 February 2013.  Once the applicant completed Phase III, he would have met all the educational requirements.

   e.  A memorandum, dated 12 December 2012, wherein the applicant requested a MILED waiver and stated that he would complete his military education (ILE Phase III) by February 2013.  He also stated that he had completed Phase I in August 2011 and Phase II in October 2012.  He immediately enrolled in Phase III, but in January 2012 he was selected as the Executive Officer of The Adjutant General of South Carolina, and because of the time demands associated with that position, he was unable to complete Phase III until October 2012.  

   f.  three DPRO E-tracker screens, dated 12 December 2012, which show his status as "pending" for a MILED waiver.

4.  His record contains the following:

   a.  A DA Form 1059 (Service School Academic Evaluation Report), dated 21 March 2013, which shows he completed the Command and General Staff Officer Course, 1-250-ILE CC, on 20 March 2013.  The form shows the duration of the course was from 21 June 2011 through 20 March 2013, to indicate all phases of the course.

   b.  A Notification of Promotion Status memorandum, dated 21 October 2013, wherein  the Deputy Chief of Staff for Personnel, SCARNG, advised the applicant of his non-selection for promotion to LTC by the board that convened on 
8 January 2013.  The memorandum also advised the applicant that he would be considered by the next board in January 2014.

5.  He also provided a copy of a memorandum, dated 1 November 2013, from the Deputy Chief of Staff for Personnel, SCARNG, in support of the applicant's application.  The SCARNG official stated:

   a.  The applicant was prepared for the FY13 DA Board, his officer record brief and Interactive Personnel Electronic Records Management System performance folder were updated and reviewed prior to the cut-off date of 21 December 2012.

   b.  A MILED waiver for ILE Phase III was submitted by the applicant on 12 December 2012 and was uploaded into E-Tracker by the SCARNG Officer Section on 12 December 2012.  At the time of the case being submitted for the applicant's MILED waiver, they were unaware of the requirements to add remarks for the case.  In doing so, that would have revealed the "Submit" button to the NGB-HRH officer policy division.

   c.  The SCARNG Officer Section failed to add remarks and submit the MILED waiver for the applicant to NGB-HRH (Officer Policy).  The applicant was non-selected for FY13 selection to LTC.  The SCARNG believed that error may have occurred due to a training issue with E-Tracker, and they had adjusted their process to eliminate the chance of that reoccurring.


6.  In an advisory opinion, dated 21 February 2014, the NGB, Chief, Personnel Policy Division, reiterated the applicant's requests.  The NGB official stated:

   a.  The SCARNG provided a memorandum to support the applicant's request and claim that the SCARNG made the error in failing to upload the waiver.  The SCARNG failed to submit the Soldier's State-approved MILED waiver because the individual making the entry did not properly submit the waiver after uploading it to E-Tracker.  Because of that error, the NGB never received the waiver; therefore, it was never forwarded to HRC for approval.

   b.  MILED waivers are processed through NGB and submitted to HRC.  Military Personnel (MILPER) Message 12-313, FY13, LTC Army Promotion List (APL), Army Reserve Active Guard Reserve (AR-AGR), Army Reserve Non-Active Guard Reserve (AR-Non-AGR), and ARNG of the United States (ARNGUS), Competitive Categories, Promotion Selection Boards), paragraph 4a, established the deadline for submission to NGB as 19 November 2012.

   c.  The HRC suspense date was 7 December 2012, in accordance with MILPER Message 12-313, paragraph 4b.  The waiver was generated and submitted to the SCARNG on 12 December 2012.  Even if the SCARNG had properly submitted the waiver upon receipt, the suspense for submission to NGB and HRC had already passed.

   d.  MILPER Message 12-313, paragraph 4c, allows for ATRRS course reservations to be submitted to HRC in order to be granted credit for meeting the military education requirement for board purposes.  It is unknown if the applicant's ATRRS course reservation was submitted to HRC.  

   e.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 13 July 2004, defines material error as "one or more errors of such as 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."  Paragraph 3-19 outlines under which conditions the commander, HRC, Office of Promotions (Reserve Components (RC)) will normally not determine a material error occurred in a Soldier's board file.  Paragraph 3-19(f)(2) states it is normally not a material error if, "the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation they had."  Evidence was not provided indicating the applicant took this step.
   f.  The FY13 LTC board convened on 8 January 2013, prior to the applicant attending the ILE Phase III.  The applicant completed Phase III of ILE on 20 March 2013 and received a DA Form 1059.

   g.  ARNG Policy Memo #12-023, Waivers for Department of the Army Mandatory Selection Boards (DA Board – 5 March 2012), paragraph 5b, states, "For promotion to LTC, MAJs must have completed the Phases I and II of ILE."  The applicant completed both phases by October 2012, but the DA Form 1059 was not issued until the completion of Phase III, which was 20 March 2013.  Because of that, the board also did not see the completion of Phase I and II.

   h.  The SCARNG does not concur with this recommendation, reference memorandum, dated 1 November 2013, from the State.

7.  On 21 February 2014, the advisory opinion was forwarded to the applicant for his acknowledgement/rebuttal.  In his response, dated 21 March 2014, the applicant requests a positive final determination in his case and rejection of the recommendation of the advisory opinion.  He stated:

   a.  He was directed that the FY13 LTC APL board would convene on 8 January 2013.  He was directed to contact his S-1 as his primary point of contact.  He did and referred to them frequently as his point of contact and subject matter expert on all items regarding LTC APL.  He had never prepared a packet for a board up to that point.

   b.  His S-1 directed him to state-generated "general instructions" which advised him to submit a letter to the president of the board reference a MILED waiver.  He did on 30 November 2012 and received an email on 3 December 2012 from his S-1 stating it was "good to go," and "the State Officer Section had forwarded it to the NGB for processing last week," and "the NGB did their first pull on 7 December 2012."

   c.  At that point, he had completed his MILED waiver, submitted all documentation and was told in writing that his packet was "good to go."  On 12 December 2012, his State Officer Section required he resubmit his MILED waiver in a different format with that day's date.  He did so on that same day.

   d.  His State Officer Section admitted that they had failed to process his submitted documentation as noted in the advisory opinion.  Despite the NGB's mention of MILPER Message 12-313, this MILPER message was never sent to or referenced to him by his S-1, State Officer Section, or NGB.  Not only did he redo the MILED waiver at their request with a new date, but they failed to submit his MILED waiver (and accompanying documentation) to the NGB.
   e.  Paragraph 3(a)(3) of the advisory opinion indicates that "it is unknown if the applicant's ATRRS course reservation was submitted to HRC."  That was part of accompanying documentation that he forwarded to his State Officer Section through S-1.

   f.  In his opinion there were one or more errors of such a nature as defined in Army Regulation 135-155:

		(1)  His State Officer Section failed to submit or review his initial MILED waiver, dated 30 November 2012.

		(2)  His State Officer Section failed to submit his second MILED waiver, dated 12 December 2012.

		(3)  He was not provided a copy of the MILED message nor did he know that any such documents existed.

		(4)  His Staff Officer Section and NGB-HRH failed to conduct critical quality control to inspect packets that were submitted, ensuring all documentation was present and in order.  This is the intent of earlier suspense dates, to provide echelon headquarter elements timely preparation and inspection time of packets that they then send forward or up to the next headquarters.

   g.  The statement that, "Evidence was not provided that the Soldier took that step" is completely ludicrous.  He submitted weekly requests to his S-1 and his State Officer Section on the status of his packet and can authenticate 32 such requests through his chain of command between 9 November 2012 and 3 January 2013.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed ILE Phases I and II by October 2012.  He was considered and not selected for promotion to LTC by the FY13 LTC APL.  It appears he was considered not educationally qualified.

2.  He contends that he timely submitted a request for a MILED waiver and due to the SCARNG failing to upload an approved waiver he was not selected by the FY13 LTC APL.  

3.  The evidence shows his MILED waiver was generated and submitted to the SCARNG on 12 December 2012.  In accordance with MILPER Message 12-312, the deadline for submission to NGB was 19 November 2012.  As such, even if the SCARNG had properly submitted the waiver the suspense date for submission to NGB and HRC had already passed.  

4.  MILPER Message 12-312 also allowed for ATRRS course reservations to be submitted to HRC in order to be granted credit for meeting the military education requirement for board purposes.  The available evidence shows the applicant was notified of his reservation on 24 October 2012; however, there is no evidence of record and he did not provide sufficient evidence showing when and if he submitted his course reservation to HRC.  There is also no evidence and he did not provide sufficient evidence to show a MILED waiver was generated or issued prior to 12 December 2012.  

5.  By regulation, a material error is not a material error if the officer could have taken timely corrective action such as notifying the Office of Promotions of the error.  The applicant had from 24 October up to 19 November 2012 to ensure at least his reservation notice was submitted to the NGB.  He has not shown that he was unjustly prevented from doing so.  He has not shown a material error.

6.  He states he can authenticate 32 requests asking for a status on his MILED waiver.  If he can provide these requests, he may request reconsideration. 

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)                                         AR20130020225



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ABCMR Record of Proceedings (cont)                                         AR20130020225



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