IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140018772 


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, reversal of the Fiscal Year (FY) 2014 Major (MAJ), Army Promotion List (APL), Promotion Selection Boards (PSB) decision that shows he was not recommend for Selective Continuation (SELCON) of service.  In the alternative, he requests that he be retroactively granted a military education (MILED) waiver and placed before a Special Selection Board (SSB) to consider his file with the waiver.

2.  The applicant states he was promoted to captain (CPT) in October 2006 while he was in the Individual Ready Reserve (IRR).  He remained in the IRR while he attended law school and started a family, intending to return to an active status.  He joined the 360th Civil Affairs Brigade in May 2013 and immediately sought a slot for the Captains Career Course (CCC) to qualify for promotion.  He sought a slot for the Maneuver CCC, but the U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC) notified him he had to attend the Quartermaster (QM) CCC and it was too late for him to enroll in a class before the promotion board.  He discussed his problem with his unit, including the possibility of obtaining an MILED waiver among other options and he was told there was nothing that could be done.  He was informed in June that he would be separated from the Army based on his second non-selection for promotion.  The board's decision was not surprising, given that none of his Officer Evaluation Reports (OER) as a lieutenant would be a part of his promotion board file.  A letter to the board might have motivated the board to select him for continuation, but it was his understanding that since he was not MILED qualified his file would not be considered.  He completed the QM CCC on 22 August 2014.  While he did spend a number of years in the IRR, he believes he is even better prepared for a role as a civil affairs officer than he was before his break in service.  

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report), dated 
13 July 2000, for completion of the Infantry Officer Basic Course
* two OERs as a second lieutenant (2LT)
* two OERs as a first lieutenant (1LT)
* orders for promotion to CPT, effective 9 October 2006
* DA Form 1059, dated 22 August 2014, for completion of the QM CCC 
* a letter, dated 16 November 2014, from the 360th Civil Affairs Brigade (Airborne)

CONSIDERATION OF EVIDENCE:

1.  He previously completed 4 years, 3 months, and 29 days of active service in the Regular Army in an enlisted status.  On 31 July 1999, he was commissioned a 2LT in the South Carolina Army National Guard (SCARNG) and received Federal recognition.  On 10 October 2001, he was promoted to 1LT.

2.  On 1 November 2002, he was discharged from the SCARNG and transferred to the U.S. Army Reserve (USAR) Control Group (IRR).

3.  On 9 October 2006, he was promoted to CPT in the USAR Control Group (Reinforcement (REINF)).  

4.  U.S. Army Human Resources Command (HRC) Orders M-11-804291, dated 
5 November 2008, ordered him to active duty as a CPT in area of concentration (AOC) 11A (Infantry Officer) no later than 25 January 2009 for partial mobilization in support of Operation Iraqi Freedom not to exceed 400 days.  On 24 March 2009, these orders were revoked.

5.  On 6 May 2013, he was transferred from the USAR Control Group (REINF) to the 360th Civil Affairs Brigade as a CPT in AOC 11A.

6.  On 5 July 2013, he was notified of his first non-selection for promotion by the FY 2013 MAJ, APL, PSB.  He was advised he had not met the required MILED before the board convened on 11 March 2013.

7.  An HRC Soldier Management System entry, dated 17 June 2014, indicates he was not recommended for promotion a second time by the FY 2014 MAJ, APL, PSB, which convened on 10 March 2014.
8.  A DA Form 1059, dated 22 August 2014, shows he satisfactorily completed the QM CCC on 22 August 2014.

9.  A letter, dated 16 November 2014, from the 360th Civil Affairs Brigade (Airborne) states the applicant made every effort to enroll in a CCC since joining the unit from the IRR in May 2013.  Due to circumstances beyond his control, he was not able to complete the required MILED prior to the FY 2014 MAJ, APL, PSB, which convened on 10 March 2014.

10.  In the processing of this case an advisory opinion, dated 25 November 2014, was obtained from HRC.  

	a.  HRC stated the applicant's assertion that he should be granted a back dated MILED waiver for the CCC was without merit.

	b.  The MILED requirement for promotion to MAJ is completion of any Officer Advanced Course, CCC, or equivalent prior to the convening date of the board in accordance with Table 2-2 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

	c.  In order to be granted an MILED waiver for promotion, an applicant must have completed at a minimum the non-resident portion of the course and be scheduled for the resident phase as established in Military Personnel Message (MILPER) 13-351, dated 5 December 2013.

	d.  He did not complete his CCC until August 2014.  He failed to show due diligence by not requesting an MILED waiver based upon either the requirements above or as an exception to policy due to his perceived exigent circumstances by 10 February 2014 as directed by MILPER Message 13-351.

	e.  He was considered by the FY 2013 and FY 2014 MAJ, APL, PSB and failed to request a waiver for his MILED.  He was also considered for SELCON by the FY 2014 MAJ, APL, PSB, but was not recommended for retention.  He was required to be discharged by 1 January 2015.

11.  On 18 December 2014, the applicant submitted a response to the HRC advisory opinion.  He states:

	a.  The law and regulations that require his separation from the Army do not account for an officer in his particular situation.  When he transferred out of the IRR he made every effort to meet the requirements for consideration by a PSB; but he was not supported by the unit he joined.  After his non-selection by the FY 2013 promotion board he sought a position in the 360th Civil Affairs Brigade.  When he was finally transferred to the unit in May 2013 he immediately worked with the unit to get into a CCC.

	b.  At his first Battle Assembly he was told by his immediate supervisor he could attend the Maneuver CCC.  He submitted a request but in January 2014 the USACAPOC was requiring all CA officers who needed CCC to attend the QM CCC.  There were no class dates available until after the FY 2014 promotion board met in March.  His application had not been processed until the end of March so he could not even enroll in the distance learning (DL) portion of the course.

	c.  When it became clear he could not complete the CCC prior to the promotion board, he inquired as to what his options may be.  His unit informed him that he was not eligible for a MILED waiver because he had not been deployed recently and he had not completed the DL portion of a CCC.

	d.  He completed the QM CCC on 22 August 2014.

	e.  Despite his efforts and his unit's direction to enroll in the Maneuver CCC that did not materialize.  He was not notified of that fact until it was too late to enroll in another CCC.  USACAPOC's insistence on officers attending the QM CCC is not published in any official policy statement to his knowledge.  However, as his request was sent through his unit up the USACAPOC chain of command, it was denied.  

12.  MILPER Message 13-351, issued on 5 December 2013, announced eligibility requirements and the convening date of the FY 2014 MAJ, APL, PSB.  In and above the zone CPTs could request an MILED waiver in accordance with Director of Military Personnel Management Policy memorandum, dated 24 May 2010, subject:  Reserve Component Promotion Board Military Education Waiver Guidance.  CPTs must have served 12 or more cumulative months (need not be consecutively served) of documented outside the continental U.S. deployment within the 36 months preceding the convening date of their mandatory promotion boards and have completed at a minimum of the non-resident portion of the Officer Advanced Course or CCC and have a valid reservation for the resident phase.

13.  Army Regulation 135-175 (Separation of Officers) states an officer in the grade of 1LT, CPT, or MAJ who has completed his statutory military service obligation (MSO) will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components selection board.

14.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officer of the USAR.

	a.  Promotion consideration or 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 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.

	b.  Paragraph 4-34 states an officer twice non-selected for promotion by a mandatory Reserve of the Army selection board must be removed within the prescribed time limits.  However, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to MAJ or lieutenant colonel may be selectively continued on the Reserve Active Status List in their present grade.  The Secretary of the Army (SA) may direct an SELECON board to consider officers for continuation when required by the needs of the Reserve of the Army.  An SELCON board must recommend the officers for continuation and the SA must approve the recommendation before officers may be continued.

15.  Title 10 U.S. Code, section 651 (10 USC 651), each person who becomes a member of a U.S. Armed Force, either by enlistment, appointment, or induction, will serve in the U.S. Armed Forces for a total initial period of 8 years.  Any part of such service that is not active duty will be performed in a Reserve Component. A person's statutory military service runs concurrent with a contractual military service obligation.

16.  10 USC 14505, provides that a USAR CPT 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.

DISCUSSION AND CONCLUSIONS:

1.  Upon promotion to CPT on 9 October 2006 the applicant knew, or should have known, he would be required to complete an CCC for promotion to MAJ.  There is no evidence he made any attempts to complete this requirement while in the IRR.

2.  He was a first time non-select for promotion by the FY 2013 MAJ, APL, PSB due to not having completed his MILED prior to the selection board convening on 11 March 2013.

3.  He was transferred to the 360th Civil Affairs Brigade on 6 May 2013 and he was notified of his first non-selection for promotion on 5 July 2013.  However, by his own statement he did not submit a request to attend an CCC until August 2013.

4.  He was a second time non-select for promotion by the FY 2014 MAJ, APL,  PSB due to not having completed his MILED before the selection board convened on 10 March 2014.  He completed the QM CCC on 22 August 2014.

5.  He was also considered for SELCON service by the FY 2014 MAJ, APL, PSB, but subsequently not recommended for retention.  The reasons he was not recommended are not known because the reasons for non-selection for retention are not divulged by the promotion board.  Decisions by the promotion board for SELCON are based on the needs of the Army Reserve.  Therefore, there is no basis on which to reverse the decision not to recommend him for SELCON. 

6.  He had met his MSO on 7 January 1998.  Therefore, as required by 10 USC 14505, he was discharged.

7.  The applicant did not meet the requirements for submission of an MILED waiver in accordance with MILPER Message 13-351.  The HRC stated he failed to show due diligence by not requesting an MILED waiver as an exception to policy due to his perceived exigent circumstances by 10 February 2014.  Therefore, it would not be equitable to now provide a retroactive MILED waiver.

8.  In view of the above, there is no material error in his failure to be selected for promotion.  Therefore, there is no basis on which to have his records considered by an SSB.

9.  All USAR officers were subject to the same regulation and statute.  Therefore, there is no error or injustice in this case.

10.  In view of the above, there is no basis to grant the applicant's request.


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)                                         AR20140018772



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ABCMR Record of Proceedings (cont)                                         AR20140018772



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