IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20150004281 


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: 

* an adjustment of his date of rank (DOR) to second lieutenant (2LT) to May 2012
* an adjustment of his DOR to first lieutenant (1LT) to December 2013 with back pay and allowances
* promotion consideration to captain (CPT) by a special selection board (SSB) 

2.  The applicant states his DOR to 2LT should be adjusted and his DOR to 1LT should also be adjusted with provisions for all lost pay and allowances associated with erroneous disenrollment from the Reserve Officers' Training Corps (ROTC).  He also states he should be considered by an SSB to CPT.  He was disenrolled from ROTC on 23 July 2012 due to an erroneous and unfair disenrollment board.  The U.S. Army Cadet Command directed a new board, which resulted in him being able to complete ROTC and be commissioned as an active duty 2LT in 2014. 

3.  The applicant provides a Power of Attorney.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an adjustment of the applicant's DOR to 2LT to May 2012, promotion to 1LT effective December 2013 with back pay and allowances, and consideration for promotion to CPT by an SSB.
2.  Counsel states, in effect:

* the applicant was denied due process associated with his 2012 ROTC disenrollment board
* he was not given notice of the misconduct he was required to defend himself against at the disenrollment board 
* he was not given the right to make a knowing and voluntary waiver of his rights to what was a second disenrollment board that discharged him 
* due to the errors made by two boards, the applicant should not have been exposed to a disenrollment board or disenrolled 

3.  Counsel provides:

* Previous Record of Proceedings (reinstatement) with previously-submitted personal statement and sworn statements
* 2012 disenrollment packet 
* 2012 discharge orders
* 2014 appointment of a formal board of officers to determine suitability for retention in the ROTC program
* Army Regulation 15-6 (Procedures of Investigating Officers and Board of Officers) investigation with findings and recommendations
* Exception to policy to attend airborne school and diploma
* DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract) 
* Air assault school diploma
* Cadet Record Brief
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Certificate of achievement
* DD Form 1610 (Request and Authorization for Temporary Duty Travel of Department of Defense Personnel) 
* Appointment memorandum and oath of office
* Reissued discharge order
* Certificate of affiliation 
* Ordnance Basic Officer Leader Course (BOLC) diploma 
* March 2015 active duty orders
* Diploma for a Master of Criminal Justice degree
* Certificate of marriage 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve Control Group (ROTC) on 27 September 2009.  In connection with this enlistment, he also executed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract).  He attended Inter-American University of Puerto Rico. 

2.  On 19 March 2012, the applicant's Professor of Military Science (PMS) appointed a CPT to informally investigate issues of misconduct surrounding the applicant.  An informal investigation was conducted after the PMS received a counseling statement from the Acting Commander, a chief warrant officer four (CW4), 246th Quartermaster Corps, and a staff sergeant (SSG) submitted a sworn statement.

* the counseling indicated insubordination, being disrespectful toward a senior officer and a noncommissioned officer (NCO), failure to follow instructions, and failure to adhere to Army values
* during the informal investigation, other cadets provided statements that confirmed the events that occurred
* the applicant was found to be disrespectful when he stated the CW4, with 30 years of service, "was sitting doing nothing and stealing money from the Army"
* the applicant was also disrespectful when he failed to follow a direct order from a SSG and said "he was not going to receive orders from a piece of sh-- E-6"

3.  Based on the testimony and sworn statements, the investigating officer opined the applicant did not have the potential to become a successful officer, lacked discipline, made excuses for not performing to standards, and possessed unacceptable traits.  He recommended the applicant's immediate disenrollment.

4.  On 9 April 2012, the PMS notified the applicant by memoranda of the initiation of disenrollment action from ROTC and placement on leave of absence, effective 3 April 2012, based on misconduct (disrespect).  He was advised of his right to request a hearing.  He was also notified that he retained the status of cadet until disenrollment and discharge action were complete and as such could not enlist in any other military service or component or sign any other scholarship contract.  He was further informed that as a scholarship cadet he could be called to active duty in an enlisted rank/grade of private/E-1 or be required to repay scholarship benefits in lieu of a call to active duty.  The PMS further recommended his disenrollment without obligations and advised him the final decision was with the Commander, U.S. Army Cadet Command (USACC).

5.  On 13 April 2012, the applicant acknowledged the disenrollment memorandum.  

6.  On 21 April 2012, one of the applicant's instructors indicated by email that the applicant failed to turn in his midterm test and failed to provide the officer in charge with a calendar to ease the process of a special project.  It was also noted that he was a no show for physical training because he got married but did not excuse himself.  

7.  On 23 April 2012, the PMS appointed a formal board of officers/investigating officer to determine the applicant's suitability for retention in the ROTC program.  The hearing was announced on 2 May 2012.  The applicant was so notified. 

8.  On 2 May 2012, a board of officers convened with the applicant present.  The board of officers found the applicant entered into a valid senior ROTC contract.  It also found the applicant should not be retained in the ROTC program.  He should be disenrolled, released from his ROTC contractual obligations, and he should not be ordered to active duty.  The disenrollment finding was based on unspecified grounds.  The findings were forwarded to the brigade commander but the brigade commander returned it because it contained several procedural errors.  The PMS was told to correct the deficiencies.  

9.  On 5 June 2012, a Cadet Command Form 131-R (Cadet Action Request) shows the applicant's disenrollment was requested under the provisions of Army Regulation 145-1 (Senior ROTC Program:  Organization, Administration, and Training), paragraph 3-43a(14).  The PMS indicated this was the first cadet he had ever encountered that simply did not have the Army values.  

10.  On 15 June 2012, the PMS submitted a Memorandum for Record where he stated the applicant failed to show up for training or PT and/or was late for formation or equipment showdown.  

11.  On 19 June 2012, the PMS again notified the applicant by memorandum of the initiation of disenrollment action from ROTC and placement on leave of absence based on misconduct (disrespect).  He was advised of his right to request a hearing.  He was also notified that he retained the status of cadet until disenrollment and discharge action were complete and as such may not enlist in any other military service or component or sign any other scholarship contract.  He was further informed that as a scholarship cadet he could be called to active duty in an enlisted rank/grade of private/E-1 or be required to repay scholarship benefits in lieu of a call to active duty.  The PMS further recommended his disenrollment without obligations and advised him the final decision was with the Commander, USACC.



12.  On 25 June 2012, the applicant acknowledged receipt of the disenrollment memorandum.  He waived his right to a hearing and personal appearance in order to respond to the validity of the debt.  He declined call to active duty within 60 days and declined expeditious cal to active duty.  However, it is unclear at this point if the applicant understood this disenrollment memorandum was a totally different one using a different justification than the first time.  

13.  On 9 July 2012, the applicant's brigade commander concurred with the PMS recommendation to disenroll the applicant from the ROTC program and return him to his unit.  

14.  On 23 July 2012, the Deputy Chief of Staff for Personnel, G-1, USACC, approved the request for disenrollment and ordered the applicant disenrolled from the ROTC program under the provisions of Army Regulation 145-1, paragraph 3-43a(14), based on the applicant's undesirable character as demonstrated by frequent absences from military training.  

15.  On 24 July 2012, USACC published Orders 206-1 discharging the applicant from the United States Army Reserve (USAR) Control Group (ROTC) effective 23 July 2012.  

16.  During October 2013, the applicant sent several emails to various senior Army leaders alleging that he did not receive due process during his disenrollment and requested reinstatement to receive his commission.  He disputed the disenrollment based on lack of due process.  Specifically, he alleged the investigating officer improperly considered several allegations of misconduct during the 2 May 2012 hearing for which he did not receive proper notice.  The applicant had moved to Virginia and was pursuing higher education. 

17.  On 3 January 2014, a formal board of officers/investigating officer was appointed to determine the applicant’s suitability for retention in the ROTC program and the amount and validity of any debt. 

18.  On 23 January 2014:

	a.  A different PMS notified the applicant by memorandum of the initiation of disenrollment action from the ROTC and placement on leave of absence based on his misconduct as demonstrated by his disorderly and disrespectful conduct during training which constituted, either individually or collectively, a breach of the terms of his ROTC contract and that effective immediately he was placed on leave of absence pending disenrollment.

	b.  The applicant acknowledged receipt of the notification of disenrollment.  He elected not to exercise his right to consult with a counselor or legal advisor of his choice.  

	c.  Another board of officers convened with the applicant present.  The board of officers found the applicant entered into a valid senior ROTC contract.  It also found the applicant should not be retained in the ROTC as a scholarship cadet; he should be retained in the ROTC as a non-scholarship cadet.  

19.  The USAR ROTC Executive Officer recommended the applicant be retained in the ROTC program as a non-scholarship cadet and given the opportunity to continue to earn his commission.  

20.  On 10 May 2014, a series of events took place: 

	a.  The U.S. Army Senior ROTC Instructor Group, Petersburg, VA published Orders 129-10 ordering the applicant’s discharge from the USAR Control Group effective 11 May 2012. 

	b.  The U.S. Army Senior ROTC Instructor Group, Petersburg, VA issued an appointment memorandum appointing the applicant as a Reserve commissioned officer of the Army for an indefinite term effective on his acceptance.  The applicant executed an oath of office as a 2LT in the USAR on 10 May 2014. 

21.  On 16 June 2014, the U.S. Army Human Resources Command published Orders 167-004-A-7060 ordering the applicant to active duty for a 6-year active duty commitment effective 21 September 2014.

22.  The applicant entered active duty on 21 November 2014.  He attended and successfully completed the Ordnance Basic Officer Leader Course from 22 November 2014 to 4 February 2015.  

23.  An advisory opinion was received from USACC on 3 June 2015 in the processing of this case.  An advisory official stated: 

	a.  The USACC is not opposed to an adjustment of the applicant’s DOR based on defects in the ROTC disenrollment board conducted against him in 2012.  However, his proposed adjustments to his DOR do not appear to be correct and we would defer to the U.S. Army Human Resources Command for calculation of appropriate 1LT DOR, any eligibility for a CPT board, and any other adjustments deemed appropriate by the Board.  

	b.  Out of an abundance of caution due to issues raised by the applicant involving his previous ROTC disenrollment boards from 2012, the USACC disapproved the previous boards and conducted a new disenrollment board on or about January 2014.  A new board was ordered because it was not clear from the record if the applicant was provided adequate notice of the basis for his disenrollment or knowingly and voluntarily waived his rights to a board when re-notified.  The most recent board found that he should not be disenrolled.  As a result, the Commander, USACC approved this finding and commissioned him as a 2LT.  If the 2012 disenrollment board had not reached an improper result, as he alleges, he would have been commissioned in or about May 2012.  On this basis, there is no legal objection to his request to adjust his DOR.

	c.  USACC does not believe his request calculates his DOR properly; however, he alleges, had he not been disenrolled from the ROTC, he would have entered active duty as a 2LT in May 2012 with his fellow ROTC cadets, and he would have been eligible for promotion to 1LT in December 2013 and eligible for the CPT promotion board that was held in March 2015.  This is incorrect in part although USACC is not the authority to provide an opinion on his eligibility to 1LT or CPT.  USACC would defer to HRC or the Board to accurately determine the promotion sequence that would have occurred.  

		(1)  Although he would have been commissioned as a 2LT in May 2012 but for the improper 2012 ROTC disenrollment board, he would not have entered active duty at the same time.  Officers appointed via the ROTC commissioning source do not enter active duty until the date their orders start.  Most commonly, this date is the start of authorized travel to the BOLC-Branch (BOLC-B) school for the 2LT.  His original orders to BOLC-B reflect a report date of 26 August 2012 with travel beginning on or about 25 August 2012. Subject to comment by HRC, his active duty DOR for 2LT likely should be no earlier than 25 August 2012 (not May 2012 as he suggests).  

		(2)  Further, HRC and perhaps the Quartermaster Branch specifically would need to comment on the promotion timeline for an individual with his adjusted DOR (if the Board so directs the change).  He alleges he was eligible for promotion to 1LT in December 2013 and eligible for the CPT promotion board that was held in March 2015.  HRC or Army G-1 would need to comment on the validity of these assertions, but likely he, with a DOR of August 2012, was looking at promotion to 1LT 24 months later (in or about August 2014) and eligibility for the CPT promotion board in 2015 for promotion in 2016.

	d.  Additionally, his case is different than the Army Board for Correction of Military Records (ABCMR) opinion that he cites in his request.  ABCMR Docket number AR20140003319 was an opinion involving an adjustment of a Reserve Component officer's DOR when that officer changed branches.  In this prior ABCMR case, the National Guard delayed submission of promotion matters due to some administrative issues with submitting paperwork.  The applicant did not branch transfer into the Reserve Component.  

24.  On 24 June 2015, the applicant submitted a rebuttal to the advisory opinion. He stated: 

* he agrees with USACC's recommendation that his 2LT DOR be backdated and that he receive compensation for lost time in that grade
* if the Board does not agree with this decision, then the Board should contact HRC for a determination of his DOR 
* he does not agree with USACC's opinion to recalculate his eligibility for 1LT to August 2014 based on the erroneous assumption that his active duty order would have started the clock
* HRC already established 7 December 2013 as his promotion eligibility date to 1LT, a date that is consistent with the date another ROTC cadet was promoted
* contrary to USACC's opinion, he would have required 18 months, not
24 months, before becoming eligible for promotion to 1LT
* there is probably a change to the regulation which now requires an additional 6 months’ time in grade (TIG) to be promoted
* he is providing Orders Number 357-015 showing another ROTC cadet who was promoted to 1LT effective 7 January 2014

25.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior ROTC Program.

	a.  Paragraph 3-39 states USACC is the approving authority for termination of scholarship and/or disenrollment.  Paragraph 3–39c identifies the exception pertaining to 4-year scholarship winners discharged early from active duty.  A scholarship will be terminated and the cadet disenrolled for any of the reasons listed in paragraph 3–43.  

	b.  Paragraph 3-43 states that non-scholarship and scholarship cadets will be disenrolled for a breach of contract.  Sub-paragraph 3-43a states breach is defined as any act, performance, or nonperformance on the part of a student that breaches the terms of the contract regardless of whether the act, performance, or nonperformance was done with specific intent to breach the contract or whether the student knew that the act, performance, or nonperformance breaches the contract.   

26.  Executive Order 12396 (Defense Officer Personnel Management), delegated certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, by the authority vested in the President of the United States.  The Secretary of Defense is designated to perform, without approval, ratification, or other action by the President, several functions vested in the President, including the authority vested in the President by Section 624(c) of Title 10 of the USC, to appoint officers in the grades of 1LT and CPT in the Army, Air Force, and Marine Corps or in the grades of lieutenant (junior grade) and lieutenant in the Navy.

27.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Promotion eligibility is determined by the Army G-1 and approved by the Secretary of the Army (SA).  For centralized promotions, eligibility is based on an officer’s active DOR and TIG.  For decentralized promotions, the officer’s promotion eligibility date (PED) is also a determinant.  As established by the SA under Title 10, USC, sections 573, 574, and 619, officers must meet the minimum TIG requirements to be considered for promotion:  from 2LT and 1LT the law establishes no minimum TIG requirements for consideration for promotion; however, an officer must have at least 18 months TIG to be promoted to 1LT and 2 years TIG to be promoted to CPT.  The TIG requirement for promotion to 1LT has been extended to 2 years by the authority of the SA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a 4-year non-scholarship ROTC cadet.  Between 2010 and 2012, he was frequently counseled for various performance deficiencies, mainly tardiness, absence from formation or physical training, and disrespecting a senior officer and an NCO.  He was disenrolled from the ROTC program for an undesirable character due to frequent absence from training, insubordination, and unprofessionalism.

2.  He had a hearing on 2 May 2012.  Unfortunately, the investigating officer made no written findings and recommended the applicant's disenrollment on unspecified grounds.  The brigade returned the disenrollment packet due to procedural errors.  In June 2012, a second disenrollment packet was forwarded to the brigade by reason of undesirable character.  With favorable recommendations for disenrollment and because the applicant waived his right to a formal hearing, the USACC G-1 approved his disenrollment. 

3.  Following his contention to senior Army officers that he was denied due process, and after reviewing the irregularities in his disenrollment, the Army G-1, in conjunction with USACC G-1, recommended a second disenrollment hearing be held.  A new board was ordered because it was not clear from the record if he was provided adequate notice of the basis for his disenrollment or that he knowingly and voluntarily waived his rights to a board when re-notified.  He had moved to Virginia; therefore, a new hearing was convened by a different brigade in Virginia.  

4.  The relook board convened in January 2014 and recommended that he be commissioned.  He was approved for commissioning on 5 March 2014.  He completed the required commissioning process (scrolling) and executed an oath of office on 10 May 2014.  He entered active duty on 21 November 2014 and completed the Ordnance BOLC.

5.  He is inaccurate when he contends that he had not been disenrolled from ROTC, he would have entered active duty as a 2LT in May 2012 with his fellow ROTC cadets, and he would have been eligible for promotion to 1LT in December 2013 and eligible for the CPT promotion board held in March 2015.  

6.  Although he would have been appointed as a commissioned officer in the rank of 2LT in May 2012 (except for the improper 2012 ROTC disenrollment board), he would not have necessarily entered active duty at the same time.  Officers appointed via the ROTC commissioning source do not enter active duty until the date their orders start. 

	a.  Following the scrolling action by the Secretary of Defense, HRC attempts to schedule Soldiers for BOLC in conjunction with a permanent change of station to a unit with a vacancy for his branch following completion of BOLC.  

	b.  This date is generally the start of authorized travel to the BOLC-B school for the 2LT.  His original orders to BOLC-B reflect a report date to BOLC-B of 
26 August 2012 with travel beginning on or about 25 August 2012.  It is reasonable to presume this date as his appointment date and DOR to 2LT.  His records should be corrected to show his active duty DOR to 2LT as 26 August 2012, not May 2012 as he suggests.  

	c.  Promotion from 2LT to 1LT may be completed at the 18-month mark, but is not necessarily required at 18 months.  The TIG requirement for promotion to 1LT has been extended to 2 years by the authority of the SA.  With this number of months TIG and a recommended DOR to 2LT as 26 August 2012, the applicant would have been promoted to 1LT on 26 August 2014.  His records should be corrected to show promotion to 1LT with an effective date and DOR of 26 August 2014 with entitlement to back pay and allowances.  

	d.  With a DOR to 1LT as 26 August 2014, the earliest he would be eligible for promotion consideration is the 2016 CPT selection board in or around April 2016. The applicant is advised to consult the promotion board schedule posted to the HRC official website. 

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:

* adjusting his appointment DOR to 2LT to 26 August 2012
* promoting him to 1LT with an effective date and DOR of 26 August 2014 with entitlement to back pay and allowances

2.  The Board further determined that the evidence presented is 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:  

* adjusting his DOR to 2LT to May 2012
* adjusting his DOR to 1LT to December 2013 with back pay and allowances
* promotion consideration to CPT by an SSB 



      ___________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)                                         AR20150004281



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ABCMR Record of Proceedings (cont)                                         AR20150004281



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