BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150003223 


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 promotion to captain (CPT) in the U.S. Army Reserve (USAR), effective July 2014.  

2.  The applicant states:

	a.  He was passed over for promotion to CPT when the board met in July 2014.  The code given was 8220/8221.  He requested consideration by a special selection board (SSB) but after a careful review from the Army Medical Department (AMEDD) Branch Officer, it was disapproved. 

	b.  The U.S. Army Human Resources Command (HRC) disapproved the SSB packet.  According to HRC records, he was denied twice for promotion.  The first promotion board was in Fiscal Year 2013 (FY13).  An email was sent in September 2012 to his Army Knowledge Online (AKO) email.  He had no knowledge of the existence of this AKO email.  Meanwhile, he was in the Individual Ready Reserve (IRR) planning and executing his move to San Diego, CA.  He moved to San Diego from Hawaii (where he was assigned) to seek CPT positions because Hawaii was over-staffed and over-strength.  The IRR would also prevent him from the unit troubles of tracking him to attend battle assembly or drill.   

	c.  The AMEDD Branch Officer reviewed his records completed for the board in July 2014.  She/he noticed that his education did not exist in the "My Board File (MPF)."  The diploma and transcript documents were submitted prior to the board's deadline.  Under the assumption the error 8220/8221 means that he was missing 2 officer evaluation reports (OER), a letter was sent in lieu of these missing OERs to the promotion board explaining the status.  The same Branch Officer who reviewed his records stated that it was "good to go."  Since, this was the case, his SSB was submitted along with the education copies.  The OER was sent to the 100th Battalion, 9th Mission Support Command (MSC) in Hawaii to have it signed.  During the one-year period, he was still having trouble reaching the right contacts to sign his evaluation in his previous unit.  In this case, he had opened up an Inspector General (IG) complaint against the unit.

3.  The applicant provides email, orders transferring him to the IRR, and separation orders.  

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a second lieutenant, Medical Services Corps (MSC), of the USAR and he executed an oath of office on 19 January 2010. 

2.  His service records contain:

* Diploma showing he received a Bachelor of Science in Speech Pathology and Audiology from the University of Hawaii on 13 May 2007
* Diploma showing he received a Master of Science in Administration from Central Michigan University in August 2009 

3.  He entered active duty for training (ADT) on 26 January 2011 and completed the AMEDD Basic Officer Leader Course (BOLC) from 27 January to 4 April 2011.  He was honorably released from ADT on 1 April 2011. 

4.  On 22 July 2011, HRC published orders promoting him to first lieutenant (1LT) with an effective date and date of rank of 18 July 2011.  He was assigned as a Medical Platoon Leader to Headquarters and Headquarters Company, 100th Battalion, 442nd Infantry, Fort Shafter, HI.  

5.  On 11 October 2012, by email to his AKO account, HRC advised the applicant that he was eligible for the FY13 CPT promotion board.  He was also advised that his file contained only his DA Form 1059 (Service School Academic Evaluation Report) from AMEDD BOLC and he was provided a copy of the Military Personnel (MILPER) Message with instructions on how to submit additional documents.  

6.  On 15 October 2012, Headquarters, 9th MSU, Honolulu, HI published Orders 12-289-00001 reassigning him from his troop program unit (TPU) to the USAR Control Group (IRR) effective 31 October 2012.  

7.  On 22 October 2012, HRC sent him additional information regarding promotion time lines, school eligibility, and evaluations.  

8.  On 10 May 2013, he was reassigned from the USAR Control Group (IRR) to a TPU, D Company, 2nd Battalion, 413th Regiment, 95th Division, San Diego, CA, as a company executive officer. 

9.  It appears he was considered for promotion to CPT by the FY13 Department of the Army (DA) Reserve Component (RC) Promotion Selection Board (PSB) that convened around December 2012.  This board was approved on 13 March 2013 and was officially released on 28 March 2013.  He was not selected for promotion.  

10.  The applicant was also considered for promotion to CPT by the FY14 DA RC PSB that convened on 8 April 2014 and was approved on 1 July 2014 but he was not selected for promotion.  

11.  On 30 December 2014, by memorandum to HRC, the applicant requested reconsideration for promotion to CPT under the FY14, CPT AMEDD RC PSB.  He contended that his promotion file contained a material error related to his civilian education. 

12.  On 6 January 2015, by memorandum, HRC responded to his request.  An official at HRC officer promotions stated that his case seemed to have merit but HRC could not approve his request.  By law (Title 10, U.S. Code, section 14504) and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-33, an officer who has failed promotion to CPT a second time will be removed from the active status list on the first day of the 7th month from the approval date of the board.  He failed to be recommended for promotion a second time and he had a pending discharge date of 1 February 2015.  

13.  On 24 January 2015, the USAR Command, Fort Bragg, NC published Orders 15-024-00019 honorably discharging him from the USAR effective 23 February 2015.  



14.  An advisory opinion (AO) was received from HRC on 9 April 2015 in the processing of this case.  The Chief of Officer Promotions stated:

	a.  Based on a review of HRC's records and the information provided, the applicant qualifies for reconsideration for promotion to CPT under the criteria of FY13 (if non-select) and FY14 CPT RC PSBs.  However, he did not seek assistance from HRC until 6 January 2015, less than 30 days prior to being removed from the Reserve Active Status List (RASL).  During the review, HRC determined that he was erroneously coded as educationally qualified for FY13 without documents and not educationally qualified (civilian education), during promotion consideration for FY14.  These errors entitle him to reconsideration.  His current "former officer" status prohibits HRC from processing such action without a directive from the Board. 

	b.  But even if his records were coded educationally qualified for civilian education, with documents, there is no guarantee that he would have been selected for promotion.  There is definitive proof that candidates deemed not educationally qualified are automatically non-selected for RC promotions.  

	c.  Pending the Board's decision, this process may take up to 12 months or more to complete before the results are approved for release by the appropriate signature authority.  Any adjustment of rank or associated back pay or allowances may only occur upon a favorable outcome that leads to a promotion selection for CPT under the FY13 or FY14 year criteria.  Furthermore, it is at the discretion of the Secretary of the Army via the ABCMR to determine if any discharge/retirement orders should be revoked or if the applicant should be returned to an active Reserve status.  

15.  The applicant responded on 28 May 2015 and stated: 

	a.  The AO states he did not seek assistance from HRC until 6 January 2015, less than 30 days before being removed from the RASL.  In response, he states, in effect:

		(1)  In October of 2014, he sought guidance and recommendations from his Medical Command (MEDCOM), under his career manager, Major CC, to have his packet revisited because he did not agree with the board result.  An officer responded to this email by recommending an SSB.  If he had been told immediately by his career manager(s) to contact the SSB office, or if he had received the promotion board result via email stating to contact the SSB office to appeal the results, then yes, he could have contacted that office directly early on and resubmitted his packet.  How does one know they are passed over two times? Are officers contacted immediately from HRC promotions or from the promotion board?  In his case, he requested an SSB and things began to unfold. Automatically, he was discharged in a heartbeat.  

		(2)  On 6 January 2015, his SSB packet was sent and immediately returned.  HRC sent him the initial letter stating he was going to be discharged effective 3 February (2015) due to being passed over two times, as quoted by law.  This letter came as a surprise and drove him to ask many questions.  He sought advice and guidance from HRC and he was advised to get with his career manager.  

        (3)  After an email question to his Career Manager, MAJ CC, the applicant was advised to return to the promotions branch.  This is where the back and forth began.  No one could give him answers regarding this letter with a discharge date, he sought help from colleagues, peers, former supervisors on active duty, Active Guard Reserve officers, former/current battalion commanders, and his unit.  His former active duty supervisor sought assistance from his colleagues in MEDCOM and informed him based on their experience to plan for discharge.  His current reserve battalion commander also reached out to his colleagues for assistance.  Along this process leading to his discharge, a new career manager stepped in from MEDCOM and offered to upload his transcripts in the Interactive Personnel Electronic Records Management System, but she could not upload signed copies of OER evaluations. 

		(4)  To make matters unclear, the MILPER Message does not state anything about transcripts.  The word "transcripts" was searched but not found.  He read the message verbatim and followed this message carefully.  He sent his diploma to the central email for documents but they were returned for his local unit administrator.  The run around began to unfold.  With never ending change, Soldiers are expected to adapt as personnel of the Federal Government.  One change that occurred in the Army was the email migration from AKO to Enterprise in October 2012, which was around the same time as the first MILPER (message) for promotion to CPT.  Meanwhile, he was in the IRR, non-drilling. 

	b.  As for the statement that there is "No guarantee for promotion," it is understood everyone is competing for a limited seat (number of promotions).  This is not so for the RC.  In his career observation of other officers, as opposed to someone who had been an officer for 5 years, or as opposed to someone who had never been deployed, or as opposed to someone that does not follow the rules or committed wrongdoing, or as opposed to not conducting themselves diligently according to ones responsibilities?  He worked so hard to get where he is today, and vowed to make a difference when he entered the medical officer program and the Army. 

	c.  As for the statement that "he was not educationally qualified," it is unclear  what system this promotion board checks.  Is it based on a printed document in front of them or checking one system outside the MEDCOM system? Why is MEDCOM asking for transcripts for a completed degree when initially, MEDCOM officers entered with it?  Separate requirement to HRC Promotion office?  Which or what system was this document entered into as officers enter MEDCOM?  As everyone knows, a response to an email or phone call from whomever, does not occur overnight or within the acceptable allotted time.  Responses could take weeks from some individuals that he came across and he gets it that everyone is busy.  There is finger pointing and a definite overall disconnect.  For every professional that he spoke to from officers to enlisted people, professional and non-professional civilians, they all seem to agree that there is something wrong here.  

	d.  As for the statement by HRC "Based on records," records could only assist to a certain degree to fulfill the high demands and volume of the promotion system.  There are many Soldiers who served more than 15 years, like him, who may have been discharged due to a similar situation, of course, each situation differs, but some may be related.  He asks that he be re-boarded given that he has diligently provided all the documentation to support his case.  

	e.  On another note, as a result of the letter from USAR Command G-1, he will be sending a letter to her office regarding the statement that he "may pursue enlistment in the Army Reserves if he so desires and is otherwise qualified."  He has done his diligence after discharge and has been trying to get some answers from the retention/recruitment office on all branches of the military and unfortunately, they are all saying that he has to "fix" this issue before he can return.  What he does not understand is who is "fixing" it?  Who should he contacted to change the code in the system to indicate he is qualified?  The Retention/Recruitment office indicated this code needs fixing.  If so, does the USAR Command G-1 have the authority to contact the Retention/Recruitment department in the military or change such code if so desired to return him to the service?   

	f.  As for the statement from HRC "Furthermore, it is 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 [Applicant] should be returned to an active/reserve status," hypothetically, if the ABCMR does find that he would be re-boarded, does the above statement from the G-1 override the statement from HRC?  Would HRC Promotions Branch be the point of contact to assist in this process?  As stated, does this occur as two separate events as indicated by the word "or" or the word "so" to indicate one statement?  

16.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve 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 records 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 individual’s 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.  

	a.  Chapter 2 of this regulation states effective 1 October 1995 no person may be selected for promotion to the Reserve grade of captain 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 for purposes of meeting officer educational requirements.  

	b.  Table 2-1 (Time in Grade Requirements) states the minimum years in the lower grade for promotion consideration from 1LT to CPT is 2 years and the maximum years in the lower grade is 5 years. 

17.  Title 10, U.S. Code, section 12205 states no person may be appointed to a grade above the grade of 1LT in the Army Reserve unless that person has been awarded a baccalaureate degree by a qualifying educational institution. 

18.  Title 10 U.S. Code, section 14504(a) states a 1LT on the RASL of the Army who has failed to be promoted to CPT the second time will be removed from the active status list on 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.  Promotion of commissioned officers is made by the President of the United States, delegated to the Secretary of Defense.  This Board does not have authority to promote the applicant.  The ABCMR corrects records; it is not a promotion board.  When this Board determines an error or an injustice has indeed occurred, an appropriate remedy would be to submit the member’s records before an SSB under the year criteria that did not select the member.  As such, promoting the applicant to CPT is not within the purview of this Board.

2.  Officers are largely responsible for their own careers.  The applicant could have reviewed and validated his MPF and/or initiated more frequent contacts with his branch manager or HRC officials prior to each promotion board.  An officer exercising due diligence concerning his/her career knows when he/she is eligible for promotion consideration and is on the lookout for when a promotion board is to be held.  His claim that he was, in effect, not properly educated on the requirements for promotion is without merit.  At a minimum, every officer being considered for promotion by the two respective promotion boards were sent via their AKO email the corresponding zone message for their board which details all the associated promotion requirements, to include civilian educational requirement.

3.  Based on his date of rank to 1LT (18 July 2011), he was eligible for promotion consideration to CPT by the FY13 and FY14 PSBs.  He was considered by both boards but not selected for promotion.  By law, a 1LT on the RASL of the Army who has failed to be promoted to CPT the second time will be removed from the active status list.  Accordingly, as required by law, he was discharged from the USAR on the first day of the seventh month after approval of the second promotion board that did not select him.  There is neither an error nor an injustice in his non-selection and resulting discharge. 

4.  However, a review of his records (by HRC) showed that he was erroneously coded as educationally qualified for FY13 without documents and not educationally qualified (civilian education) during promotion consideration for FY14.  But even if his records were coded educationally qualified for civilian education, with documents, there is no guarantee that he would have been selected for promotion.  But, there is definitive proof that candidates deemed not educationally qualified are automatically non-selected for RC promotions.  These errors are material and qualify him for an SSB.  

5.  His records should be corrected by submitting his record to a duly-constituted SSB for promotion reconsideration to CPT based on the 2013 and 2014 year criteria, as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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

	a.  submitting his record to a duly-constituted SSB for promotion reconsideration to CPT based on the 2013 and 2014 year criteria;

	b.  if he is selected for promotion, correcting his records to show he 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 him to CPT with the appropriate date of rank, and paying him all associated back pay and allowances as a result of these corrections; and

	c.  if selected and the applicant meets all prerequisites for promotion, his records should be further corrected by:

		(1)  showing the 23 February 2015 discharge from the U.S. Army Reserve is void and of no force or effect; and

		(2)  crediting him with qualifying service for Reserve retirement for his respective retirement years from the dates of his now-voided discharge to the date of return to the active Reserve.

	e.  If he is not selected by the duly-constituted SSBs he should be so notified.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promoting him to CPT effective July 2014.  



      _______ _ 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)                                         AR20150003223



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ABCMR Record of Proceedings (cont)                                         AR20150003223



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