IN THE CASE OF:  	  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140017460 


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 the following:

* promotion reconsideration to captain (CPT)
* a personal appearance before the Board

2.  The applicant states:

   a.  On 13 November 2000, he was not selected for promotion by the Department of the Army Reserve Components Selection Board (RCSB) for civilian education. The standard for selection to CPT is a bachelor’s degree.  He graduated from the U.S. Military Academy (USMA) on 23 June 1994.  He received a bachelor’s degree which meets the civilian education standards required for promotion to CPT.  

   b.  He respectfully requests immediate correction to the "material error" that occurred during the 13 November 2014 (sic) CPT selection board.  This correction will allow him to join the U.S. Army Special Forces.  He successfully completed the Special Forces Readiness Evaluation in 2014 and was given a slot with Company A, 5th Battalion, 19th Special Forces Group.  Upon completion of a 6-month vetting process, it was discovered that he was honorably discharged as a two-time non-select to CPT.  He discovered the reason for non-selection on 22 September 2014 via a U.S. Army Human Resources Command (HRC) email.  The HRC email contained the 26 April 2001 "Notification of Promotion Status memorandum" that clearly states lack of civilian education as the sole reason for non-selection.  Obviously, since he is a graduate of the USMA, this is incorrect.  Due to his age, time is of the essence.  This error needs to be corrected before he runs into age-related issues and needs further waivers.  While he is confident the facts should lead to a quick correction, he is available to discuss this matter in person and provide further documentation.

3.  The applicant provides copies of the following:

* USMA transcript (2 copies)
* Officer Record Brief (ORB)
* Notification of Promotion Status memorandum
* Orders Number D-05-222336

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are sufficient bases to waive the statute of limitations.

2.  The applicant provided a copy of his USMA transcript, dated 23 June 1994, which lists the course titles he completed and letter grades he received.  The transcript does not indicate he was awarded a bachelor’s degree.

3.  Section VIII – Civilian Education of his ORB shows he received a Bachelor of Science in Political Science from the USMA in 1994.

4.  He was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 28 May 1994.  

5.  Section VI – Military Education of his ORB shows he completed the Engineer Officers Basic Course in 1995.

6.  He was promoted to first lieutenant (1LT) on 28 May 1996.

7.  He was considered and not selected for promotion to CPT by the 2000 and 2001 RCSBs. 

8.  He also provided copies of the following:

   a. A Notification of Promotion Status memorandum, dated 26 April 2001, wherein he was advised of his non-selection for promotion on 13 November 2000 as his records did not indicate he had completed the required civilian and/or military education by the day the board convened.  He was also advised that if he remained eligible he would be considered for promotion the next year.

   b.  Orders D-05-222336, issued by the USAR Personnel Command on 29 May 2002, discharging him from the USAR effective 1 October 2002, by reason of his two-time non-selection for promotion to CPT.

9.  In an advisory opinion, dated 4 November 2014, the Chief, Officer Promotions, Special Actions, HRC, stated:

   a.  Based on a review of their records and the information provided, they found that the applicant's request to be reconsidered for promotion to CPT by a Special Selection Board (SSB) under the Calendar Year 2000 (CY00) criteria did have merit in part.  However, the Assistant Secretary of the Army for Manpower and Reserve Affairs had directed that special boards for "former officers" cease, unless directed by the ABCMR.

   b.  Pending ABCMR directive, the applicant must first ensure that a complete copy of his conferred degree (transcript and diploma) reflecting a legible date was filed within his Army Military Human Resource Record by HRC Army Soldier Records Branch (ASRB).  The ASRB would validate the degree prior to uploading to the interactive Personnel Electronic Records Management System.  Once those actions are completed, an SSB could be scheduled.  The entire process could take 12 months or more to complete before the results are approved for release by the appropriate signature authority.

   c.  An adjustment of rank or associated back pay or allowances could only occur upon a favorable outcome that leads to a promotion selection to CPT under the CY00 criteria.  Furthermore, it was at the discretion of the Secretary of the Army via the ABCMR to determine if any discharge/retirement order(s) should be revoked or that the applicant be returned to an active/Reserve status and promoted provided he meets all other promotion requirements.

10.  The advisory opinion was forwarded to the applicant for acknowledgment and comment on 17 November 2014.  In his response, dated 3 December 2014, the applicant requested the Board adopt the HRC opinion and direct the HRC to reconsider his promotion to CPT by an SSB.  In effect, based on HRC's request, he had sent a complete copy of his transcript and diploma to them.  

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that:

   a.  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 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 (DOD) for purposes of meeting officer educational requirements. 

   b.  Mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to CPT through lieutenant colonel.  In order to be promoted to CPT an individual must have completed 5 years of time in grade as a 1LT.  The military education requirement is a resident officer basic course.  

   c.  Promotion advisory boards and SSBs will be convened on an "as needed" basis to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  The 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.

   d.  An officer who twice fails to be selected for promotion to the grade of CPT will be removed from active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. 

   e.  If an officer is selected by a promotion advisory board/SSB, the officer's date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer.

   f.  Paragraph 3-19d(3) of the regulation allows the ABCMR to recommend the Soldier be evaluated by a SSB.

12.  Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to promotion reconsideration to CPT:

   a.  The evidence shows the applicant was awarded a bachelor’s degree in 1994 from the USMA; however, it appears the transcript which appeared in his board files did not indicate he was awarded a degree.  He was considered and not selected for promotion to CPT by the 2000 and 2001 selection boards due to not being educationally qualified.  As a result, he was subsequently discharged from the USAR effective 1 October 2002.

   b.  Current practice specifies special board actions wouldn’t be granted by HRC for “former officers” without directive from the ABCMR.  HRC recommended approval of the applicant's request providing the applicant provide their office with a complete copy of his conferred degree reflecting a legible date for filing by the ASRB.

   c.  On 3 December 2014, the applicant stated he had provided a complete copy of his transcript and diploma to HRC as requested.

   d.  Based on the foregoing, his records should be corrected as recommended below.

2.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.









BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adding to his military records a copy of his 1994 bachelor’s degree
* placing his records before a SSB for promotion consideration to CPT under the CY00 criteria
* if selected for promotion:

* his discharge be voided and of no effect or force
* he be returned to an active Reserve status
* promoting him to CPT using the year criteria under which he was selected; provided he was otherwise qualified and met all other prerequisites for promotion

* if not selected he be otherwise notified



      ___________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)                                         AR20140017460





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ABCMR Record of Proceedings (cont)                                         AR20140017460



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