IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20140001736 


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:

	a.  her U.S. Army Reserve (USAR) discharge orders, dated 17 December 2013, be revoked;

	b.  she be granted a civilian education waiver; and

	c.  she be promoted to captain with all pay and allowances.

2.  The applicant states:

* she was not notified of the board results for the Fiscal Year 2013 (FY13) Captain Army Promotion List (APL) board
* she was not given official notice of her discharge orders
* she was not given sufficient time to resolve or dispute this issue prior to the effective date of discharge
* she has reviewed her on-line board files and has completed all eligibility criteria for selection and promotion to captain    

3.  In a memorandum, dated 17 January 2014, she states:

	a.  she wants her USAR discharge orders voided, she be granted a civilian education waiver, she be returned to an active status, and she be promoted to captain with all pay and allowances.  She is a two time non-select based on civilian education.  She applied for a civilian education waiver for the FY13 Captain APL Board, but was denied.  She was not given official notice of sufficient time to remedy this issue before the effective date of discharge.  She has exhausted all administrative remedies at her level.  She currently meets all board prerequisites and requirements for promotion to captain.

	b.  on 30 July 2013, she received an email notification that she was identified as a candidate for the FY 2014 Captain APL Promotion Board; this was the last correspondence she received from the U.S. Army Human Resources Command.  On 19 December 2013, she received an unofficial, accidental email from her unit's senior human resources sergeant containing her discharge orders effective 1 February 2014.  These orders were based on a two time non-selection for promotion to captain.  To this day, she has yet to receive notice of any board results that may have generated such orders.

	c.  she accepted a direct commission as a Military Intelligence officer in March 2009.  She completed the Basic Officer Leadership Course in August 2010.  In the years following, she suffered multiple, unforeseen medical issues, including a potential life-threatening illness requiring surgery.  These issues delayed her ability to complete civilian education before the FY13 Captain APL Board convened.  The enclosed memorandum from her unit surgeon verifies her medical conditions at the time.  She has since recovered and has no physical restrictions or profiles.

	d.  despite the many ill-timed setbacks, she still managed to complete her degree, meet the military education requirements, and successfully maintain both military and civilian careers.  However, the Army's notification process did not allow her the opportunity to sufficiently resolve or respond to their decision to discharge her.  As indicated in a recent email query between HRC and her branch manager, her case is "abnormal" because there is no information on the Soldier Management System (SMS) and interactive Personnel Electronic Records Management System (iPERMS), which further indicates that she had no notification or knowledge of such potential negative action.          

4.  The applicant provides:

* memoranda, dated 10 January 2014, and 13, 15 and 17 January 2014 
* emails, dated 30 July 2013, 19 December 2013, and 13 January 2014
* USAR discharge orders, dated 17 December 2013
* diploma




CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the USAR, the applicant was appointed as a second lieutenant on 5 March 2009.  She was promoted to first lieutenant on 
4 September 2010.   

2.  A memorandum, dated 23 February 2012, states she was considered for promotion to captain, but not selected.

3.  A memorandum, dated 10 July 2013, states she was non-selected for promotion to captain after her second consideration.  The memorandum states that first lieutenants not selected on this second consideration must removed from an active status by the 1st day of the 7th month after the President approves the board findings. 

4.  She provides a memorandum, dated 13 January 2014, from the command surgeon who states:

* the applicant was treated for multiple medical issues that delayed her ability to complete her educational goals
* in March 2011, a potentially life-threatening condition required her to undergo major abdominal surgery
* recuperation for this surgery was prolonged due to unforeseen surgical complications
* between August and December 2012, she was again under physician care for three other unrelated medical conditions from which she has recovered 

5.  Her degree (Bachelor of Science) was conferred on 11 May 2013.

6.  On 1 February 2014, she was honorably discharged from the USAR for being twice non-selected for promotion to captain.

7.  She provides three letters of recommendation, dated January 2014.  A Major General states:

	a.  he has served as a commissioned officer since 1978, deployed several times, had three commands with wartime service since 9/11 and continues to be honored to serve.  During these decades of service, serving with and supervising thousands of Soldiers, he has written very few letters on behalf of a Soldier more deserving than this one.  The applicant is one of the finest persons, greatest of Americans, zealous patriots, finest and most capable officers he has ever served with.
	b.  she did not have her civilian education completed prior to being passed over twice for captain.  She now has her bachelor degree in Social Science and qualifies.  She is an extremely bright, high energy, and highly-motivated officer, but her education was repeatedly interrupted by military doctor's orders as they treated her for several injuries related to military duty, illness, and the loss of a child through miscarriage.  It was an extraordinary prolonged time period for an otherwise superbly-fit Soldier.  Her return to fitness and perseverance to complete her education has paid off.  If ever exceptions are made, this is the officer to do it for.

	c.  failing to retain this officer will be a great loss to the Army and our Nation.  He highly recommends favorable consideration to void her discharge orders, bring her back to an active status, and promote her to captain.

8.  A Brigadier General states:

	a.  the applicant served as his aide and she performed at a level that far exceeded her peers and often officers more senior to her.  She is a sophisticated and mature officer with impeccable duty performance and hence the reason she was specifically chosen by three different General Officers as their Aide de Camp.

	b.  she displays an indispensable desire and determination to meet all challenges and excel as a U.S. Army Reserve officer.  Through no fault of her own, numerous medical issues prevented this officer from completing her civilian educational requirements.  As soon as she regained her health, she pursued her goals and continued to serve the military in an exceptional manner.  She continually strives to improve herself and in doing so raises the level of competency, esprit de corps, and professionalism of those around her, regardless of whether they are subordinate or superior in rank.

	c.  the applicant's background is equally impressive, she is a former enlisted Soldier having served in multiple assignments to include a deployment to Iraq.  She has had an impressive civilian career as well.  She continually strives for excellence, as is evidenced by her numerous awards, recognitions, and military academic record.

	d.  failing to retain this officer will be a great loss to the USAR.  He highly recommends favorable consideration to void her discharge and promote her to captain.



9.  Another Brigadier General states:

	a.  through no fault of the applicant's own, she experienced numerous medical issues that delayed completion of her civilian education.  Despite these life-threatening issues, she managed to recover fully and complete those educational requirements.  When he spoke to her about her future options, she stated "No other job in the world is a rewarding as serving my country and wearing the uniform."  She epitomizes the drive, commitment, and sense of duty that the Army strives to attract and hold in the military.  Equally important, he sees real potential for continued valuable service at increasing levels of responsibilities.  This officer really should be retained.       

	b.  he recommends her discharge be voided, that she be brought back to an active status, be promoted to captain, and she be allowed to continue to serve as a Reserve officer in the USAR.
	 
10.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Officer Promotion Management, U.S. Army Human Resources Command.  The opinion states:

	a.  the applicant was considered and subsequently not selected by both the FY 2012 and FY 2013 Reserve Component Captain APL Promotion Selection Boards.

	b.  the exact reasons for her non-selection for promotion on the aforementioned promotion boards 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.  The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit or an officer's overall record when compared to the records of other officers being considered.  It can only be concluded that the previous promotion boards determined that her overall record, when compared with the records of her contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

	c.  however, the advisory official reviewed the applicant's promotion files and concluded that the reason for her subsequent non-selections were that she was not civilian educational qualified as required by Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-9.  In addition, based upon her direct commission, she was not eligible for waiver consideration as set forth in Title 10, U.S. Code, section 12205 because it is limited to Officer Candidate School appointments. 
	d.  the applicant was separated effective 1 February 2014 due to statutory requirements set forth in Title 10, U.S. Code, section 14504(a) which prescribes the mandatory separation of officer who are twice non-selected for promotion to captain.

	e.  the applicant's claim that she was not properly educated on the requirements for promotion is without merit.  At a minimum, every officer being considered for promotion by the two respective promotion boards was sent via their Army Knowledge Online Account the corresponding zone message for their board which details all the associated promotion requirements, to include the civilian educational requirement.

	f.  that office will defer to the applicant's supporting Regional Support Command Proponent regarding her apparent untimely notification of non-selection and the subsequent rationale and the USAR Command Separation Proponent regarding the grounds that would substantiate revocation of her military discharge.  

11.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond.

12.  Paragraph 2-9 of Army Regulation 135-155 states effective 1 October 1995 no person may be selected for promotion to the Reserve grade of captain unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education or, within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense for purposes of meeting officer educational requirements.  

13.  Title 10 U.S. Code, section 12205 states no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve unless that person has been awarded a baccalaureate degree by a qualifying educational institution. 

14.  Title 10 U.S. Code, section 12205(d)(1) states the Secretary of the Army may waive the applicability of subsection (a) to any officer whose original appointment in the Army as a Reserve officer is through the Army Officer Candidate School program.




15.  Title 10 U.S. Code, section 14504(a) states a first lieutenant on the Reserve active status list of the Army who has failed to be promoted to captain the second time will be removed from the active status list on 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 requests her USAR discharge orders be voided, she be granted a civilian education waiver, she be returned to an active status, and she be promoted to captain with all pay and allowances.  

2.  The letters of recommendation provided by the applicant were carefully considered.  However, evidence shows she was considered and non-selected by the FY12 and FY13 Reserve Component Captain APL promotion selection boards.  The advisory official reviewed her promotion files and concluded the reason for her non-selections were she did not meet the civilian education requirements.

3.  She contends she applied for a civilian education waiver for the FY13 Captain APL board, but it was denied.  It appears she was denied because by law she was not authorized a waiver.

4.  She also contends she was unable to complete her civilian education before the FY13 Captain APL Board convened because of medical issues.  Nevertheless, the governing regulation and statute state no person may be selected for promotion to the Reserve grade of captain unless they have been awarded a baccalaureate degree prior to the selection board convene date.  

5.  Evidence shows she received her Bachelor of Science degree on 11 May 2013.

6.  In addition, by law, a first lieutenant on the Reserve active status list of the Army who has failed to be promoted to captain the second time will be removed from the active status list.   

7.  She was honorably discharged from the USAR on 1 February 2014. 

8.  Based on the foregoing, there is insufficient evidence on which to base granting the requested relief.



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)                                         AR20140001736





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ABCMR Record of Proceedings (cont)                                         AR20140001736



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