BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000003 BOARD VOTE: ___x______ ___x____ ___x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000003 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. submitting her record to a duly-constituted SSB for promotion reconsideration to CPT based on the FY 2013 promotion criteria; b. if she is selected for promotion, correcting her records to show she 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 her to CPT with the appropriate date of rank, and paying her any associated back pay and allowances as a result of the corrections; and c. if selected and she meets all prerequisites for promotion, her records should be further corrected by: (1) showing the 31 August 2015 discharge from the USAR is void and of no force or effect, (2) crediting her with qualifying service for Reserve retirement for her respective retirement years from the date of her now-voided discharge to the date of return to the active Reserve; (3) placing an adequate explanation in her records explaining the gap in her officer evaluation reports from the dates of her now-voided discharge to the date of return to an active Reserve status, showing the gap was caused due to no fault of the applicant, and ensuring she is not prejudiced in the consideration of any future personnel actions. d. If she is not selected by the duly-constituted SSB she should be so notified. ___________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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000003 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, consideration by a special selection board (SSB) for promotion to captain (CPT) in the U.S. Army Reserve (USAR) and that upon promotion she be reinstated as a commissioned officer in the USAR. 2. The applicant states she was non-selected for promotion to captain due to not being educationally qualified. However, she was qualified. At the time of the 2013 promotion board, she had turned in all documentation to the responsible person for uploading it into her permanent record. That person failed to upload the documents resulting in a material error in her promotion board file. 3. The applicant provides: * Bachelor of Science Diploma, Interdisciplinary Studies, University of Houston-Downtown, dated 15 July 1999 * Juris Doctor Diploma, Texas Southern University, dated 10 May 2003 * Associate of Applied Science – Nursing, San Jacinto Community College District, dated 14 May 2009 * Bachelor of Science in Nursing, The University of Texas Medical Branch at Galveston, dated 13 August 2010 * Transcript, The University of Texas Medical Branch at Galveston, dated 31 August 2010 * Memorandum for Record, subject: Statement for [the applicant], dated 13 September 2015 * E-mail from Headquarters, Department of the Army, Promotions, Fort Knox, Kentucky, to the applicant, undated * A Memorandum written by the applicant, subject: Request for Special Promotion Board, Fiscal Year 2013 Army Medical Department (AMEDD), Captain, dated 28 September 2015 (4 pages) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. A diploma, as provided by the applicant and filed in her Official Military Personnel File (OMPF), dated 15 July 1999, indicates she completed the requirements for a Bachelor of Science degree in interdisciplinary studies from the University of Houston-Downtown. 3. The applicant was appointed as a Reserve commissioned officer of the Army, Nurse Corps in the rank of second lieutenant (2LT). She accepted her appointment on 16 November 2009. 4. A DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers), dated 28 January 2010, indicates the applicant received 1 month and 25 days of credit based on her professional experience giving her a date of rank for 2LT of 21 September 2009. 5. A diploma and transcript, as provided by the applicant and filed in her OMPF, dated 13 August 2010, indicates she completed the requirements and received a Bachelor of Science degree in nursing from The University of Texas Medical Branch at Galveston. 6. Orders B-03-101363, U.S. Army Human Resources Command (HRC), dated 10 March 2011, announced the applicant's promotion to first lieutenant (1LT) with an effective date and date of rank of 20 March 2011. 7. A DA Form 1059, (Service School Academic Evaluation Report) dated 21 March 2011, shows the applicant successfully completed the AMEDD Officer Basic Course. 8. In a memorandum the applicant was notified that a Department of the Army Reserve Components Mandatory Selection Board convened on 27 November 2012 and she was considered, but she was not among those selected for promotion. The records reviewed by the selection board did not indicate she had completed the civilian and/or military education prior to the date the board convened. 9. Orders 13-140-00031, Headquarters, USAR Command, Fort Bragg, North Carolina, dated 20 May 2013, released the applicant from attachment to the AMEDD Professional Management Command. 10. Orders 15-220-00005, Headquarters, USAR Command, Fort Bragg, North Carolina, dated 8 August 2015, shows the applicant was honorably discharged from the USAR, effective 31 August 2015, based on two non-selections for promotion to CPT. 11. An advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, HRC, dated 18 October 2016. a. The opinion stated that based on a review of their records and the information provided, they found the applicant’s request has merit. It was unfortunate that within 60 days prior to her release from the Reserve Active Status List (RASL) it was discovered that her board file was erroneously coded not educationally qualified based on her civilian education, during the promotion process for consideration for captain in fiscal year 2013. The error entitles her to reconsideration by an SSB under the FY 2013 promotion selection criteria. However, such reconsideration must be directed by this Board because of her current status as a “former officer. b. The opinion stated that Reserve officers who were deemed not educationally qualified were automatically non-selected for promotion. Approving this action is no guarantee of selection for promotion. c. Any adjustment of rank, associated back-pay or allowances may only occur upon a favorable outcome that leads to a promotion to CPT under the FY 2013 criteria. 12. On 4 November 2016, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. In a letter dated 17 November 2016, the applicant stated her agreement with the advisory opinion and her strong desire to return to her previous officer status: REFERENCES: 1. Army Regulation 135-155 states promotion consideration 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 further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date. a. Paragraph 2-2 states to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date. b. Table 2-1 states for promotion from 1LT to CPT, the minimum years in the lower grade is 2 years and the maximum years in the lower grade is 5 years. c. Table 2-2 states the military educational requirements from 1LT to CPT is a resident officer basic course. 2. Title 10, U.S. Code, section 14504 states a first lieutenant on the RASL of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the RASL of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title 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: 1. The available evidence shows the applicant had attained two Bachelor of Science degrees (one of which was in nursing) prior to the promotion board convening date. She also had completed the AMEDD Officer Basic Course. However, her records remained coded to show she had not completed this education. She was consequently non-selected for promotion to CPT. Based on this administrative error, the advisory official in this case finds a reconsideration of her records by an SSB for promotion to CPT under the FY 2013 criteria would be appropriate. 2. If the Board recommends relief, and she is selected for promotion, she may be reinstated to the USAR with no loss of time in service and with the same date of rank and effective date she would have had had she been properly considered by the FY 2013 promotion board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000003 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000003 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2