BOARD DATE: 25 November 2014
DOCKET NUMBER: AR20140006787
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, his records go before a Special Selection Board (SSB) for promotion consideration to captain (CPT) and that he be retained by the Pennsylvania Army National Guard (PAARNG) past his separation date of 31 October 2014.
2. The applicant states he received a notification of non-selection for promotion and notice of separation because he was not educationally qualified [for promotion] and he would like it overturned. When he was not selected for promotion the first time, he was within 3 credits of finishing his bachelor's degree. He was deployed to Iraq for 1 year in 2009 which temporarily halted his progress. He finished his degree in December 2013, 3 months after receipt of his first notification. His college transcripts were already in the interactive Personnel Electronic Management System (iPERMS) at the time of his second non-selection.
3. The applicant provides a memorandum and college transcripts.
CONSIDERATION OF EVIDENCE:
1. Having had prior enlisted service, the applicant was appointed as a second lieutenant in the PAARNG and he executed an oath of office on 11 August 2007.
2. He attended and successfully completed the Field Artillery Basic Officer Leadership Course (BOLC) from 29 March to 31 July 2008 at Fort Sill, OK.
3. He was ordered to active duty as a member of the PAARNG in support of Operation Iraqi Freedom and he entered active duty on 19 September 2008. He was promoted to the rank/grade of first lieutenant (1LT)/O-2 on 11 February 2009.
4. He was honorably released from active duty on 29 September 2009 to the control of the ARNG. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he served in Iraq from 23 January to 1 September 2009.
5. On 1 July 2013, by memorandum, he was notified by the PAARNG that he was considered for promotion to CPT by the Department of the Army (DA) Reserve Components CPT Army Promotion List (APL) Selection Board but was not selected for promotion. If eligible, he would be reconsidered at the next mandatory board for his grade. Prior to the next board, he should review his iPERMS record to ensure it was current and accurate. He would also have the opportunity to submit a memorandum of input with supporting documentation for the board's consideration.
6. He provides and his record contains a college transcript, dated 17 January 2014, from Excelsior College, Albany, NY, wherein it shows he was awarded an Associate Degree in Science (Nursing) on 18 March 2011 and enrolled on 4 May 2011 for the Bachelor of Science Nursing program. He completed the degree requirements on 30 December 2013 and was awarded the Bachelor of Science in Nursing Degree on 17 January 2014.
7. On 25 March 2014, by memorandum, he was notified by the PAARNG that he was considered for promotion to CPT by the DA Reserve Components CPT APL Selection Board but was not selected for promotion. As this was his second non-selection, he would be separated from the PAARNG on 31 October 2014 under the provisions of Army Regulation 135-155 (ARNG and U.S. Army Reserve (USAR) Promotion of Commissioned Officers and Warrant Officers Other than General Officers).
8. In the processing of the case an advisory opinion, dated 19 May 2014, was received from the Chief, Personnel Policy Division, National Guard Bureau (NGB). The advisory official recommended disapproval of the applicant's request and opined, in part, that:
a. The applicant was non-selected for promotion by the fiscal year 2013 (FY13) and FY14 promotion selection boards due to not meeting the civilian education requirement. He completed his baccalaureate degree on 30 December 2013 and was awarded the degree on 17 January 2014. In his application, he stated the delay in completing his degree was due to deployment in 2009.
b. His degree was awarded after the FY14 promotion board convened on 3 December 2013; therefore, his non-selection by the board was not due to an error or injustice. Army Regulation 135-155, paragraph 2-9a, 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's convening date, that person has been awarded a baccalaureate degree from an accredited institution" (emphasis added).
c. In addition, Army Regulation 135-155 , paragraph 4-33b, states, "A 1LT on the Reserve Active Status List who has failed selection for promotion to CPT for the second time and whose name is not on a list of officers recommended for promotion to CPT will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time."
d. The PAARNG did not concur with the advisory opinion.
9. On 29 May 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received.
10. Orders 276-1022, dated 3 October 2014, issued by the Commonwealth of PA, Department of Military and Veteran Affairs, honorably separated him from the ARNG and as a Reserve of the Army on 31 October 2014.
11. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers. This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individuals non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was considered but not selected for promotion to CPT by the FY13 selection board for not being educationally qualified. He was again considered but not selected for promotion to CPT by the FY14 selection board for not being educationally qualified.
2. The criteria for selection for promotion to the Reserve grade of CPT requires an officer to have been awarded a baccalaureate degree no later than the day before the convening date of the selection board. In his case, the FY14 selection board convened on 3 December 2013. He did not complete the requirements for his degree until 30 December 2013 and not awarded the degree until 17 January 2014. Therefore, he was appropriately not selected for promotion due to not being educationally qualified.
3. As he was twice non-selected for promotion to CPT, he was appropriately separated from the ARNG on 31 October 2014. There is no evidence of a material error or injustice. Therefore, he is not entitled to 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.
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