BOARD DATE:  2 June 2015

		DOCKET NUMBER:  AR20140017824


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, consideration by a special selection board (SSB) for promotion to captain (CPT) in the U.S. Army Reserve (USAR) and that upon promotion she should be reinstated as a commissioned officer in the USAR.

2.  The applicant states she was non-selected for promotion to captain due to not being educationally qualified even though her degree had been provided to the U.S. Army Human Resources Command (HRC) and her command S-1 (Personnel Officer).  This non-selection resulted in her being discharged from the USAR.  She is not able to fulfill her condition of employment as a military technician in the Reserve.  She further contends that she was employed overseas from September 2010 to September 2014 and had made an effort in 2010, 2011, 2012 and 2014 to resolved this issue, but could not do so because of the time and location differences.

3.  The applicant provides copies of:

* Email communications between herself and various Army offices, dated between 2010 and 2014 (11 pages)
* Memorandum for the applicant notifying her of 1st time non-select for promotion to captain, dated 1 May 2010
* A Diploma, Bachelor of Science, dated 15 May 2010
* Memorandum for the applicant notifying her of 2nd time non-select for promotion to captain, copy undated
* Military Personnel Message Number 10-179, fiscal Year 2011, Reserve Component Captain…Competitive Categories Promotion Selection Boards,(first page only)
* Orders D-10-117600, HRC, dated 27 October 2011
* Memorandum for this Board, Request for an Exception to Policy, dated   12 September 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army, Signal Corps in the rank of second lieutenant (2LT).  She accepted her appointment on 22 January 2005.

2.  A DA Form 1059, (Service School Academic Evaluation Report) dated 
26 August 2005, shows the applicant successfully completed the Signal Officer Basic Course.

3.  Orders B-01-700074, HRC, dated 4 January 2007, announced the applicant's promotion to first lieutenant (1LT) with an effective date and date of rank of 
21 January 2007.

4.  On 31 May 2009, the applicant entered active duty as a Reserve officer assigned at Fort Sam Houston, Texas.  On 30 May 2010, she was released from active duty.

5.  In a memorandum dated 1 May 2010, as provided by the applicant and filed in her official military personnel file (OMPF), she was notified of her first non-selection for promotion to CPT.

6.  A diploma, as provided by the applicant and filed in her OMPF, dated 15 May 2010, indicates she completed the requirements for a Bachelor of Science degree from Liberty University.

7.  An email provided by the applicant, dated 24 September 2010, addressed to the CPT Army Promotion Board, states she had attached a copy of her college degree.

8.  In an undated memorandum, as provided by the applicant and filed in her OMPF, effective 2 November 2010, she was notified of her second non-selection for promotion to CPT.  This memorandum advised her that she would be retained on the Reserve Active Status List (RASL) until the end of her original military service obligation.

9.  Orders 11-157-00003, 63rd Regional Support Command, dated 6 June 2011, announced the applicant's voluntary transfer to the Individual Ready Reserve (IRR) effective 30 June 2011.

10.  Orders D-10-117600, HRC, dated 27 October 2011, announced the applicant's honorable discharge from the USAR, effective 26 October 2011.

11.  An advisory opinion was obtained from the Chief, Officer Promotions, HRC, dated 21 November 2014.

	a.  The opinion stated that a review of their records revealed the applicant's was erroneously coded during the promotion process for consideration for CPT in fiscal year 2011, as not being educationally qualified based on her civilian education.  This error entitles her to reconsideration by a Special Selection Board (SSB) under the FY 2011 promotion selection criteria.  However, such reconsideration must be directed by this Board.

	b.  The opinion stated that Reserve officers who were deemed not educationally qualified were automatically non-selected for promotion.  Approving this action is no guarantee of selection for promotion.

	c.  Any adjustment of rank, associated back-pay or allowances may only occur upon a favorable outcome that leads to a promotion to CPT under the FY 2011 criteria.

	d.  Any determination to revoke any discharge order or to return an individual to active/reserve status is at the discretion of the Secretary of the Army through this Board.

12.  On 24 November 2014, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond.  In a memorandum dated 4 December 2014, the applicant provided the following comments:

	a.  She asks this Board to accept the advisory opinion in part.  She argues that her current status as a former officer works against her.  If, after all that has been done to resolve the issue, she is not selected for promotion, she would be disappointed.

	b.  She desires to be returned to a Reserve status should this Board decide to revoke her discharge orders.

	c.  The entire experience has tested her emotions.  She was happy to see that the erroneous coding of her education status was recognized.
	d.  She realizes that restoring her to Reserve status may not help her regain the job she lost, but it would make her whole. 

13.  Army Regulation 135-155 states promotion consideration 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.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.

	a.  Paragraph 2-2 states to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date.

	b.  Table 2-1 states for promotion from 1LT to CPT, the minimum years in the lower grade is 2 years and the maximum years in the lower grade is 5 years. 

	c.  Table 2-2 states the military educational requirements from 1LT to CPT is a resident officer basic course.

14.  Title 10, U.S. Code, section 14504 states a first lieutenant on the RASL of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the RASL of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title 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

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant attained her Bachelor of Science degree in May 2010 and provided it to the promotion board in or about September 2010.  However, her records remained coded to show she did not have this degree and she was consequently non-selected for promotion to CPT.  Based on this administrative error, her military records should be considered by an SSB for promotion to CPT under the FY 2011 criteria.

2.  Should she be selected for this promotion, it would be appropriate to then revoke the orders that discharged her from the USAR and to reinstate her as a CPT in the USAR with no loss of time in service and with the same date of rank and effective date she would have had had she been properly considered by the FY 2011 promotion board.

3.  Should the applicant fail to be selected for promotion by the SSB, she should be accordingly so notified.

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:

	a.  submitting her record to a duly-constituted SSB for promotion reconsideration to CPT based on the FY 2011 promotion criteria;

	b.  if she is selected for promotion, correcting her records to show she met all the eligibility criteria for promotion (e.g., being assigned to a CPT's position or being in an active status) effective the date of release of the applicable promotion selection board, promoting her to CPT with the appropriate date of rank, and paying her any associated back pay and allowances as a result of the corrections; and

	c.  if selected and she meets all prerequisites for promotion, her records should be further corrected by:

		(1)  showing the October 2011 discharge from the U.S. Army Reserve is void and of no force or effect,

		(2)  crediting her with qualifying service for Reserve retirement for her respective retirement years from the date of her now-voided discharge to the date of return to the active Reserve;

		(3)  placing an adequate explanation in her records explaining the gap in her officer evaluation reports from the dates of her now-voided discharge to the date of return to an active Reserve status, showing the gap was caused due to no fault of the applicant, and ensuring she is not prejudiced in the consideration of any future personnel actions; and

	d.  If she is not selected by the duly-constituted SSB she should be so 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)                                         AR20130015946



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ABCMR Record of Proceedings (cont)                                         AR20140017824



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