IN THE CASE OF:  

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140004435


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 the rank of captain (CPT/O-3) by a special selection board (SSB).

2.  The applicant states:

	a.  He was discharged from the Colorado Army National Guard (COARNG) as a result of being twice non-selected for promotion to CPT because he did not possess a bachelor's degree to meet the education requirement.

	b.  He did not obtain his bachelor's degree in a manner consistent with most officers who were accessed under the Early Commissioning Program (ECP) because he served nearly 4 years on active duty in completion of the following:

* 12 months training in the Aviation Officer Basic Course (OBC) 
* 18 months pre-deployment
* deployment and post deployment
* attendance at additional airframe qualification courses
* short deployments to Haiti and South America

   c.  In November 2011, his battalion commander counseled him regarding his  pass over for promotion for failing to meet the education requirement and afterwards offered him a very coveted position in a new aircraft (UH-72) transition program because, he feels, the commander genuinely felt he was wronged.
   
   d.  Other ECP lieutenants who faced similar situations went through the educational waiver process while he was specifically told to not submit an educational waiver because he was not an Active Guard and Reserve Soldier and would obtain his degree by the next promotion board.
   
   e.  He was shocked and absolutely confused when, while on temporary duty at the Aviation Maintenance Officer course, he learned via text message that he was being discharged from the Army.
   
   f.  Although he obtained his college degree in 2012, he was discharged from the ARNG in December 2012, well after his spring graduation.
   
   g.  He recently learned he was actually transferred to the Individual Ready Reserve (IRR) and was to his surprise, still a member of the military with an opportunity to be an excellent officer and an excellent pilot.
   
   h.  He desires that this Board consider the reasoning for his twice non-selection for promotion to CPT and make the appropriate adjustment to his military record in a manner to allow him to serve in the Army again.
   
3.  The applicant provides:

* Self-Authored Statements
* Army Review Boards Agency Letter
* Control Sheet (Congressional Inquiry - 6 pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) on 30 October 2000 for a period of 8 years.  He executed a DA Form 597 (Army Senior Reserve Officers' Training Corps Non-Scholarship Cadet Contract).

2.  On 3 July 2002, the applicant was appointed a Reserve commissioned officer of the United States Army in the rank of second lieutenant (2LT), in accordance with the ECP, indefinitely.  He also executed his oath of office on 3 July 2002.

3.  On 13 August 2002, Department of the Army (DA), U.S. Army Reserve Personnel Command, published Orders C-08-320015 reassigning the applicant from the USAR Control Group (Officer Active Duty Obligator), by reason of appointment in the COARNG, effective 12 July 2002.  At that time, he was granted temporary Federal Recognition and executed his oath of office.

4.  His record shows he was promoted to first lieutenant/O-2 on 3 July 2004.
5.  On 11 July 2005, he was ordered to active duty training to attend the Aviation OBC.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting this service shows he was released from active duty (REFRAD) to the COARNG on 21 July 2006, having completed 1 year and 11 days service for the period it covered.

6.  On 4 May 2007, he was ordered to active duty in support of Operation Iraqi Freedom.  On 23 May 2008, he was REFRAD by reason of completion of required service, having completed a total of 1 year and 20 days of creditable active duty service.

7.  His official military personnel file contains a COARNG Memorandum, dated 8 April 2010.  In part, it specifically shows:

   a.  a Human Resources Command (HRC), Fiscal Year (FY) 2010 Reserve Components Mandatory Selection Board (RCSB) convened on 3 November 2009 to consider officers of the applicant's grade for promotion:
   
   b.  unfortunately, the applicant was not selected for promotion by the board; this was his second non-selection;
   
   c.  the records reviewed by the DA Selection Board did not indicate that he had completed the required civilian education requirement by the day before the board convened; and
   
   d.  as a result of this second non-selection, unless he was sooner separated by reason of age, physical disability, or for cause, he would be discharged in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition).

8.  On 5 August 2011, the applicant earned his bachelor of arts degree in economics from Colorado State University.

9.  On 5 December 2011, the applicant was honorably separated from the COARNG in the rank of 1LT.  His National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he completed 9 years, 5 months, and 3 days of total service.

10.  On 5 January 2015, the Chief, Personnel Policy Division, National Guard Bureau (NGB) prepared an advisory opinion in response to the applicant's request for SSB promotion consideration to CPT.  The Chief indicated:

	a.  Return without action.  The Soldier is no longer in the COARNG.
	b.  The Soldier was discharged into the IRR effective 5 December 2011 from the COARNG for his two time non-selection to CPT after not completing the mandatory civilian education requirements.

	c.  The policy and regulatory provisions, as it relates to promotions beyond the rank of 1LT, as stated by the ARNG Officer Policy Branch says that the Soldier may be accessed from the IRR by the State, if recommended by the COARNG Adjutant General (AG) and approved by the Assistant Secretary of the Army Manpower Reserve Affairs.  The COARNG AG recommendation will be forwarded through the ARNG Officer Policy Branch to the ASA M&RA for a final accession determination.

	d.  HRC has verified the applicant is listed on the FY15 DA CPT Selection Board for consideration for promotion and that no further opinion should be rendered until release of official results in April 2015.  If Soldier (applicant) is DA selected to CPT, he may be accessed back into a State National Guard or a USAR troop program unit.

11.  The applicant was provided a copy of the advisory opinion on 16 January 2015.  No response was received.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states effective 1 October 1995 no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education.

13.  Title10 U. S. Code (USC), section 104504(a), provides that a 1LT, USAR, who has failed selection for promotion to the next higher grade for the second time 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.

14.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Paragraph 7-2 states SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, DA discovers one or more of the following:

	a.  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required).

	b.  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

	c.  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be considered for promotion to CPT by an SSB because the delay in obtaining his bachelor's degree was caused by his active duty service.  There is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant was considered for promotion to CPT twice by an appropriate promotion board but he was not selected for promotion based on his failure to obtain the required bachelor's degree.  As required by law and regulation, he was ultimately assigned to the IRR in December 2011.

3.  The evidence of record confirms he was initially appointed a 2LT in the COARNG on 3 July 2002, he was considered for promotion to CPT a second time before a selection board that convened 3 November 2009, and between this time he completed nearly 2 and one-half years of active duty service, as evidenced by his DD Forms 214.  This confirms it was his failure to complete the education requirement for promotion to CPT prior to the convening dates of the RCSBs that considered him in FY 2009 and FY 2010 that caused his non-selection, not his service on active duty. 

4.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known that reviewing and updating his official records has been a long-standing regulatory requirement, announced in messages and communicated by assignment officers.  The general requirements and workings of the system are widely known and specific details such as promotion board dates and promotion zones are widely published in official, quasi-official, unofficial publications, and in official communications.

5.  In the absence of clear and convincing evidence to the contrary, it is presumed that the promotion process pertaining to the applicant was conducted in accordance with law and regulations applicable at the time and there is an insufficient basis to grant relief.  However, it appears that the applicant is currently being considered for promotion to CPT and may be presented with an opportunity to serve in the Army in the near future.  The ABCMR wishes the applicant well.

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)                                         AR20140004435





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ABCMR Record of Proceedings (cont)                                         AR20140004435



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