IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150005367 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 reinstatement into the U.S. Army Reserve (USAR) and consideration for promotion to captain (CPT) by the Fiscal Year 2015 (FY15) Reserve Component (RC) CPT U.S. Army Medical Department (AMEDD) Army Nurse (AN) Promotion Selection Board (PSB). 2. The applicant states: a. Prior to 1 February 2015, the date she was discharged from the USAR, Congress and the President approved the FY15 National Defense Authorization Act (NDAA) that affected Title10, U.S. Code (USC), section 14701, in regards to AMEDD first lieutenants (1LT) who had not completed their baccalaureate degree. b. She was non-selected for promotion to CPT due to not having a Bachelor of Science in Nursing (BSN) degree when the board met; however, her degree was in progress. She graduated with a BSN degree on 11 December 2014 and sent an exception to policy (ETP) through her chain of command with the new NDAA guidance to request removal of her separation action and to be allowed to serve and again be considered for promotion to CPT. Her ETP was approved by her chain of command. She requests revocation of her separation as her unit had not processed a DD Form 214 (Certificate of Release or Discharge from Active Duty) and was waiting to see if her request was approved by the U.S. Army Reserve Command (USARC). Her record contains her official transcript awarding her a baccalaureate degree in nursing. 3. The applicant provides two memoranda; a college transcript; a college diploma; and orders, dated 6 January 2012. CONSIDERATION OF EVIDENCE: 1. While serving in the rank of staff sergeant in the USAR, the applicant was awarded an Associate of Applied Science in Nursing (AASN) degree on 15 May 2009. She was honorably discharged from the USAR on 13 January 2010 to accept an appointment as a commissioned officer. 2. She was appointed as a second lieutenant (2LT) Reserve officer on 14 January 2010 in the Army Nurse Corps (ANC) with a date of rank (DOR) of 22 October 2009. She was assigned to the USAR, 94th Combat Support Hospital (CSH), Seagoville, TX. 3. She attended and successfully completed the AMEDD Basic Officer Leader Course from 25 February to 21 March 2011. She was promoted to 1LT on 23 April 2011 with a DOR of 23 April 2011. 4. She served on active duty as a member of her Reserve unit from 16 January to 29 November 2012. During this period, she served in Afghanistan from 29 January to 25 October 2012. On 6 August 2012, she was awarded a certificate of training for successfully completing the AMEDD CPT Career Course. 5. She was considered but not selected for promotion to CPT by the FY13 RC CPT AMEDD AN PSB. 6. The applicant was subsequently notified, by memorandum, subject: Notification of Non-Selection for Promotion (1st time), from Headquarters (HQ), 63rd Regional Support Command, that: a. She was considered but not selected for promotion by the RC PSB. The records reviewed by the board did not indicate that she had completed the civilian and/or military education by the date before the board convened on 27 November 2012. Her attention was invited to the mandatory education requirements for promotion as specified in Army Regulation 135-155 (Army National Guard (ARNG) and USAR - Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraphs 2-8 and 2-9 and tables 2-2 or 2-3. If she had completed the education requirements not later than the day before the board convened, she may request reconsideration through command channels to the U.S. Army Human Resources Command (HRC). b. If she remained eligible, she would be considered for promotion next year. Other than failing to complete required civilian and/or military education, selection boards do not record the reason for non-selection. 7. She was considered but not selected for promotion to CPT by the FY14 RC CPT AMEDD AN PSB. 8. The applicant provides a self-authored memorandum, dated 18 November 2014, addressed to the President, HRC, CPT Promotions, wherein she requested reconsideration for promotion to CPT by a special selection board (SSB). She stated, in part: a. On the date of the first promotion board, 27 November 2012, she had 19 months and 4 days’ time in grade (TIG) and believed she was below the zone but was considered within the zone. In January 2012, she was activated and deployed to Afghanistan. Due to the deployment, she had to cancel her plan to enroll in the spring 2012 term to start her BSN program and this delayed her obtaining her BSN. b. She was currently enrolled at the University of Texas with an anticipated graduation date of 11 December 2014. The inability to obtain her BSN in an adequate timeframe was due to no fault of her own but due to her military obligation. Her mandatory removal date (MRD) was 1 February 2015 and she wanted reconsideration for promotion by an SSB. It appears her request was subsequently denied. 9. On 13 December 2014, she was awarded a BSN degree from the University of Texas. The transcript she provided shows she was actively enrolled in the BSN program from 14 August 2013 to 17 December 2014. 10. Orders 15-008-00003, dated 8 January 2015, issued by HQ, USARC, honorably discharged her from the USAR effective 1 February 2015 by reason of twice being non-selected for promotion to CPT. 11. The applicant provides a memorandum from her unit commander, dated 25 January 2015, through her chain of command to the Department of the Army (DA), G-1, wherein her commander stated, in part: a. He was requesting an ETP for the applicant to not be separated for her second non-selection for promotion due to the pending FY15 NDAA. Recent changes would affect Title 10, USC, section 14701, pertaining to AMEDD 1LTs who had not completed their baccalaureate degree. b. The applicant had completed her baccalaureate degree on 11 December 2014 (i.e., 13 December 2014) and was actively enrolled in pursuit of her degree when the board met in April 2014. The applicant met the criteria of the new pending policy based on the proposed legislation and the applicant’s completion of her BSN degree. He recommended the applicant be retained in the USAR and considered for promotion by the next CPT promotion board. 12. On 1 February 2015, she was honorably discharged from the USAR. 13. In the processing of this case, an advisory opinion was obtained on 12 August 2015 from the Chief, Officer Promotions, HRC. The advisory official recommended denial of the applicant’s request for promotion reconsideration to CPT under the FY13 or FY14 RC CPT AMEDD PSB by an SSB. The advisory official stated, in part: a. Effective 1 October 1995, no person may be selected for promotion to CPT in the USAR unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree. b. The applicant’s BSN was conferred on 13 December 2014 approximately 8 months after the convening date of 8 April 2014 of the FY14 RC AMEDD AN PSB. She was not selected for promotion by that board. 14. In a response to the advisory opinion, received on 19 September 2015, the applicant stated, in part, she was not asking for reconsideration of promotion to CPT by an SSB under the FY13 and FY14 PSB criteria. She was requesting her discharge from the USAR be revoked due to changes in the FY15 NDAA and that she be considered for promotion to CPT by the FY15 PSB. 15. In a revised advisory opinion, dated 26 October 2015 from the Chief, Officer Promotions, HRC, the advisory official stated, in part: a. The applicant’s request for promotion consideration to CPT under criteria of the FY15 RC CPT AMEDD AN PSB by an SSB may have merit in part. As of the date of the advisory opinion, the applicant had not been returned to the Reserve Active Status List (RASL) by USARC, nor had her separation orders been revoked under the FY15 NDAA clause. Her request for promotion consideration by an SSB could be revisited upon notification she had been returned to the RASL or as directed by the Army Board for Correction of Military Records (ABCMR), and/or if she is selected for promotion any discharge order should be revoked and she should be returned to an active Reserve status at the discretion of the Secretary of the Army via the ABCMR. b. The following excerpt was taken directly from the FY15 NDAA Conference Report. …Military Personnel Retention on reserve active-status list following non-selection for promotion of certain health professions officers and first lieutenants and lieutenants (junior grade) pursuing baccalaureate degrees: The bill included a provision that would amend section 14701 of title 10, United States Code, to authorize consideration for continuation on the reserve active-status list of first lieutenant and lieutenant (junior grade) health professions officers who have twice failed of selection for promotion the next higher grade. The provision would also require service secretaries to retain on the reserve active-status list health professions officers who would otherwise be required to be removed from the reserve active status list until the officer has completed his or her service obligation (Sec. 511). c. The advisory office could not speak directly on behalf of the USARC but the following key statement as noted above “to authorize consideration for continuation” does not direct; it appears that part of the note is an option and anything further would be speculation. 16. On 27 October 2015, the applicant was provided the revised advisory opinion for her information and the opportunity to respond. No response was received. 17. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that: a. 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. b. Chapter 2 of this regulation states effective 1 October 1995 no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convening 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. c. Table 2-1 (TIG 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. 18. Title 10, USC, 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. 19. Title 10, USC, 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. 20. On 19 December 2014, President Obama signed into law the FY15 NDAA, wherein it states, in part, a USAR officer who holds the grade of 1LT who is required to be removed from the RASL under section 14504, who is a health professions officer, or is actively pursuing an undergraduate program of education leading to a baccalaureate degree, may be considered for continuation on the RASL pursuant to the needs of the service. The FY15 NDAA does not state that the law is retroactive. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant was first considered for promotion to CPT by the FY13 RC CPT AMEDD AN PSB that convened on 27 November 2012 but was not selected for promotion. She was subsequently notified that she was not selected because she did not meet educational requirements and she would be considered for promotion by the next applicable PSB. 2. She was considered but not selected for promotion by the FY14 RC CPT AMEDD AN PSB because she had not completed her BSN degree by the day prior to the convening date of the board. By regulation, she did not meet the educational requirements for promotion to CPT. Promotion 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. This is not the case with the applicant. She received her BSN on 13 December 2014, after she had been twice non-selected for promotion, and as required by governing laws and regulations she was properly discharged from the USAR on 1 February 2015. There is no error or injustice. 3. Her contention that her deployment from 29 January to 25 October 2012 delayed her completing her BSN is noted; however, she was appointed as a 2LT in the USAR on 14 January 2010 and had over 4 years to complete her BSN before she was considered for promotion to CPT by a second selection board that convened in April 2014. She failed to do so. The transcript she provided shows she entered a BSN program in August 2013, nearly a year after her return from her deployment. 4. In addition, as noted by the advisory official, the FY15 NDAA, signed into law on 19 December 2014, states a Reserve 1LT who was actively pursuing an undergraduate program of education leading to a baccalaureate degree may be considered for continuation on the RASL. There is no provision that makes the law retroactive or directs that these officers were required to be considered for continuation on the RASL. 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) AR20150005367 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005367 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1