IN THE CASE OF:	   

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140018800 


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 approval of a military education (MILED) waiver and consideration for promotion to lieutenant colonel (LTC) by a special selection board (SSB) under the Fiscal Year (FY) 2014 LTC Army Promotion List (APL) criteria.

2.  The applicant states:

	a.  He requested a MILED waiver for the FY14 LTC promotion board.  It was returned without action by the National Guard Bureau (NGB) because it was submitted after the U.S. Army Human Resources Command (HRC) deadline of 6 December 2013.

	b.  He was on track to complete the requirements for a MILED waiver for the FY14 LTC promotion board.  He submitted his last two papers for Phase II Intermediate Level Education (ILE) on 3 October 2013 and 4 November 2013; however, due to the FY14 government shutdown, his papers were not graded in a timely manner.  This caused a delay in completing Phase II of ILE and consequently his enrollment in Phase III of ILE.

	c.  Those actions and an administrative error by his unit delayed the submission of his MILED waiver request prior to the HRC deadline. 



3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* a memorandum, subject:  Request for Waiver of Non-statutory MILED Requirements for (Applicant), dated 1 December 2013
* a memorandum, subject:  Endorsement of Request for Waiver of Non-statutory MILED Requirements for (Applicant), dated 4 December 2013 
* a memorandum, subject:  MILED Waiver (Applicant), dated
* 10 December 2013
* email correspondence
* information pertaining to ILE course

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the Army National Guard (ARNG), he was appointed as a Reserve commissioned officer of the Army at the rank of second lieutenant on 31 August 1990.

2.  He was promoted to the rank of major on 15 August 2006.  He was in the above-the-zone consideration for promotion to LTC.

3.  He was ordered to active duty on 19 August 2008 and served in Kuwait/Iraq from 1 November 2008 to 5 August 2009.

4.  Military Personnel (MILPER) Message Number 13-292 (FY14, LTC, APL, Army Reserve-Active Guard Reserve (AR-AGR), Army Reserve Non-Active Guard Reserve (AR Non-AGR) and Army National Guard of the United States (ARNGUS) Competitive Categories, Promotion Selection Board), issued on 10 October 2013 stated, in part:

	a.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officer Other than General Officers), table 2-2, lists the MILED requirements for promotion selection.  MILED requirement must be completed no later than the day before the Boards convene.  Evidence that you have completed the required MILED must be in your my Board File (MBF).  The MILED requirement is 50-percent completion of the Legacy Command and General Staff Officer Course or completion of Logistics Executive Development Course or Associate Logistic Executive Development Course or current enrollment or completion of resident ILE or completion of any Army ILE common core (ILE-CC).  Evidence of completion is DA Form 1059.  Officers not educationally qualified will not be selected for promotion.  The civilian education requirement is presumed for all.

	b. In and above-the-zone officers may request a MILED waiver in accordance with Director of Military Personnel Management Policy Memorandum, dated 24 May 2010, subject:  Reserve Component Promotion Board MILED Waiver Guidance.  In order to be eligible for a waiver, the MAJ must have served 12 or more cumulative months (need not be consecutively served) of documented deployment time within the 36 months preceding the convening date of their mandatory promotion board and completed at a minimum phases one and two of the non-resident ILE-CC and have a reservation in the resident phase.  Request must contain justification and documentation of phase completion and reservation for the resident phase.

5.  A memorandum, subject:  Request for Waiver of Non-statutory MILED Requirement for (Applicant), addressed to the Chief, Office of Promotions, Fort Knox, KY, dated 1 December 2013 shows the applicant requested a MILED waiver for the 2014 LTC APL Promotion Selection Board (PSB).

6.  In a memorandum, subject:  Endorsement of Request for Waiver of Non-statutory MILED Requirements for (Applicant), dated 4 December 2013 show his commander endorsed his request for a MILED waiver.

7. In an memorandum, subject:  MILED Waiver (Applicant), dated 10 December 2013, shows the Oklahoma ARNG Director of Personnel requested approval of his request for a MILED waiver.

8.  In a memorandum, subject:  Waiver of MILED Requirements for Promotion (Applicant), issued by the National Guard Bureau (NGB), dated
31 January 2014 the Chief, Personnel Policy Division, NGB stated:

* his request for MILED waiver was returned without action
* the deadline for all waivers to HRC expired on 6 December 2013
* his deployment history fell outside the zone of consideration 
* there was no evidence of completion of Phase II of ILE or a reservation for Phase III

9.  In the processing of this case, on 8 December 2014 an advisory opinion was obtained from the Chief, Special Actions Branch, Officer Promotions, HRC.  The advisory official stated:

	a.  Based on a review of their records and information provided, they found that the applicant’s request for a SSB did not have merit.

	b.   Ninety days before the convene date of the FY14 LTC, APL, PSB, MILPER Message Number 13-292 (FY14, LTC, APL, AR-AGR, AR Non-AGR and ARNGUS Competitive Categories, PSB) was issued.  It declared the deadline for submission of waiver requests to HRC was 6 December 2013.  It also clarified the minimum eligibility waiver requirements to be met prior to submission.

	c.  Documents contained within the applicant’s request affirmed that his MILED waiver request was not forwarded to HRC.  It was returned without action for late submission and incompleteness.

	d.  His reconsideration of promotion to LTC by an SSB can only occur as an ABCMR directive to retroactively approve a MILED waiver and to re-board by an SSB (unless proven otherwise ineligible).

10.  The applicant was forwarded a copy of the advisory opinion for information to allow him the opportunity to submit comments or a rebuttal.  There is no indication that he responded.

11.  The applicant provides a DA Form 1059, dated 19 September 2014, which shows he successfully completed the ILE-CC course conducted from 18 July 2012 through15 September 2014.

12.  Orders 308-021, issued by Joint Force Headquarters, Oklahoma City, OK, dated 4 November 2013, show the applicant was transferred to the Retired Reserve effective 1 December 2014.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states an SSB will convene to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, were not submitted or omitted to a mandatory promotion selection board for consideration.

14.  Army Regulation 135-155 further specifies that the Commander, HRC, Chief, Office of Promotions (Reserve Components), is the approval authority for all requests for exception to non-statutory promotion requirements.  Requests must contain complete justification, including recommendations of intermediate commanders when applicable.  The ABCMR has the authority to grant a waiver for education for past criteria.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for approval of a MILED waiver and consideration for promotion to LTC by an SSB was carefully considered.

2.  He states his request for a MILED wavier was delayed due to the government shutdown and administrative error; however, based on the eligibility requirements for a MILED wavier, even if his request were submitted in a timely manner, he would not have been eligible to receive a MILED waiver.

3.  In order to be eligible for a MILED waiver he must have served 12 or more cumulative months of documented deployment time within the 36 months preceding the convening date of the promotion board, completed phases I and II of the non-resident ILE-CC at a minimum, and have had a reservation in the resident phase.

4.  His deployment history did not fall within the area of consideration and, by his own admission, he had not completed the ILE requirements.

5.  The evidence shows he did not meet the eligibility requirements to request a MILED waiver.  As such, there is no material error that warrants sending his records before an SSB.

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 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)                                         AR20140018800



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ABCMR Record of Proceedings (cont)                                         AR20140018800



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