ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20160013196 APPLICANT REQUESTS: to be reinstated in the United States Army Reserve (USAR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 67-9 (Officer Evaluation Report) x 2 * Biographical Summary, dated 25 April 2014 * Inspector General Memo, dated 9 May 2014 * Emails x 5 * Educational Transcripts, dated 29 June 2015 * Options Upon Nonselection for Promotion After Second Consideration Memo, dated 1 August 2014 FACTS: 1. The applicant states: a. He believed he was unjustly discharged from the USAR. Early in his career he learned subordinates could trust their leaders. He strove to create that level of trust with his subordinates. He trusted those placed in leadership above him and those in a position to advise him. He was given bad information from his branch manager, which led him to develop his education plan on a false premise. b. Based on conversations the applicant had with the branch manager, he developed a plan to finish his degree by May 2014. c. In April 2012, after having been in the grade of First Lieutenant (1LT) less than one year, he arrived in Afghanistan for his third deployment. Within days of his arrival, he received a notice that he would be considered for promotion to captain by the next board. At the earliest opportunity he reached out to his branch manager via phone and shared his concerns in light of the fact he had not completed his bachelor's degree. He explained his intent to go back to school immediately upon returning from his deployment. The applicant reports telling the branch manager his intention of completing his degree by fall 2014. d. The branch manager shared with the applicant it was a tight timeline, but the plan would be ok. There was a discussion of a wavier because the applicant was overseas and that the promotion consideration in fall 2012 would not count therefore his first actual consideration would be fall 2013. e. Based on this conversation, the applicant developed his educational timeline. He applied for admission to Monterey Institute of International Studies while deployed in remote region of Kandahar. He completed an online course to meet the admission requirements. On 5 January 2013, the applicant returned from the deployment and started school immediately. The applicant completed 19 credits his first semester and worked hard taking heavy loads. While in school, he remained active in his reserve unit. f. In 2013 the applicant received another notification from his branch manager indicating the applicant would be considered for promotion to captain. The applicant replied to the branch manager informing him that he was in school and would not be ready for the 2013 board and thus would not expect to be considered or promoted. g. In April 2014, the applicant was approaching the completion of his degree. He received noticed that he would be removed from the Army for having been a two time non-select for promotion to captain. h. He immediately contacted his branch manager and sought his assistance. His response was cold and told the applicant his career was his responsibly. The applicant informed his company commander of his situation, the company commander contacted the applicant's branch manager. i. The branch manager informed the company commander about Notification of Suspension of Section 14504 (a) of Title 10, United States Code for Reserve Component (RC) First Lieutenants who are Twice Non-Selected for Promotion. The applicant contacted the Chief of Personnel Management at the 63rd RRC. The branch manager provided outdated information, the suspension provided was for retaining officers to the end of their original military service obligation. j. The applicant reenlisted in 2006 and by the time the circumstance developed, he was beyond this timeframe. The applicant reports he tried everything to include filing an Inspector General (IG) Complaint and contacting his congressman. On 15 October 2014, the applicant received his discharge paperwork. 2. A review of the applicant's records show * On 8 January 2010 - he become a commissioned officer, second Lieutenant (2LT); he has 6 years, 6 months and 7 days of prior active service, and 4 years, 8 months and 6 days of prior non active service * On 7 July 2011 - the applicant was promoted to 1LT 3. Applicant provided a DA Form 67-9 showing: * as a 1LT he was assigned to a Civil Affairs (CA) Battalion as a CA Team Chief * he reintegrated back into Company D after his return from deployment January 2013 * he maximized his free time by commencing a rigorous Bachelor's/ Master program at the Monterey Institute of International Studies * he received rating above center mass 4. The applicant provided email correspondence showing: * he contacted his branch manager discussing his timeline for completing his degree as it relates to promotion to captain * his branch manager says if he (branch manager) knew about the applicant's situation, he would advise him against going on the deployment * he was informed he needs the Memorandum for Record (MFR) from chain of command on his promotion to Captain and policy exception due to deployments 5. On 9 May 2014, the applicant received a response to his IG inquiry dated 25 April 2014. The memorandum shows * the applicant does not qualify for wavier because his baccalaureate degree was not completed prior to the convening of his promotion board * the applicant will be separated by law * he must be separated no later than 1st day of the 7th month following the President's approval of the promotion board * he can submit an application for reappointment (DA Form 61) to Human Resources Command (HRC) * it is recommended he review Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) reference Chapter 2 and 3 * with the application, provide documentary evidence of a completed baccalaureate degree highlighting it was not completed during your non-selection promotion board 6. On 17 May 2014, the applicant completed his Bachelor of Arts Degree in International Studies. 7. On 1 August 2014, the applicant received a Memorandum from Headquarters, 63rd Regional Support Command, and Subject: Options upon Non-Selection for Promotion after Second Consideration which shows: * the purpose of memorandum is to provide further information concerning options available to the applicant * separation no later than 1st day of 7th month following the President's approval of the board results unless: o CPT or MAJ have remaining service obligation o eligible for and request reassignment to the Retired Reserve o have been credited with 18 or more but less than 20 years of satisfactory service for retired pay purpose * he was considered twice for promotion to the next higher grade by the Army Reserve Component Selection Board and unfortunately was not selected * the reserve status statement and election of Options is enclosed with this memorandum, if election is not received by the suspense date shown, he will be administratively reassigned to the Retired Reserves, if eligible or discharged according to law 8. On 27 September 2014, the applicant received Order 14-270-00021, Honorable Discharge with effective date 15 October 2014. 9. IWS transactions dated 5 September 2018 show on: * 14 January 2011 - the applicant contacted his branch manager informing him he was a newly commissioned Lieutenant and was interested in going active duty, his current unit was sending him to CA school and he would deploy the spring of 2012 * 16 June 2011 - received email on Date of Rank to 1LT effective 7 July 2011 * 8 May 2012 - the applicant inquired about how much time is allotted to complete his degree before being discharged, his branch manager gave timeline and encouraged him to complete his degree as soon as possible * 6 June 2012 - the applicant was notified about upcoming CPT/APL promotion board * 22 August 2012 - while scrubbing the applicant records branch manager noticed not current college transcripts, applicant was sent an email informing him to come up with plan of action and submit a letter to the board. He was informed he should retake DA photo to reflect CA and not Military Intelligence (MI) branch * 18 October 2012 - the branch recognizes the applicant is not educationally qualified for promotion * 26 August 2013 – applicant first time considered for promotion but not recommended for promotion * 4 September 2013 - notification for upcoming promotion board was sent to applicant * 19 September 2013 – applicant’s records were reviewed, he was informed he needed official civilian transcripts in his records * 18 October 2013 - the applicant was found not to be educationally qualified * 21 April 2014 – applicant’s branch manager shows applicant contacted him upset he was not selected for promotion; branch manager notes he spoke with the applicant several times on not being educationally qualified for promotion and there was not more the branch manager could do for the applicant; branch manager recommends applicant appeal to the Special Selection Board (SSB) 10. On 13 September 2018, Army Review Board Agency (ARBA) received an Advisory Opinion from Army Human Resources Command on the applicant’s request. The advisory shows: * based on review of the applicant's records, it was found a request for a Special Selection Board (SSB) does not have merit * the applicant was requesting reconsideration for promotion to Captain based on the claim he received bad information from his branch manager * the branch manager sent numerous emails notifying the applicant of the upcoming promotion board and that he needed to complete his degree * it is the officer’s responsibility to ensure their records are updated prior to the convening date of the board * Army Regulation 135-155 (Appointment of Commissioned and Warrant Officers of the Army) states that 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 convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education * the applicant did not finish his degree until 17 May 2014 which was six months after his second non select for promotion 11. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 12. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) shows Direct appointees who do not already have a baccalaureate degree must have a degree completion plan within 30 days of appointment. Direct appointees will meet with their education support center for development of their plan within 30 days of appointment. College degree completion plans will include the type of degree, a timeline for completion, and an agreement from an accredited university. Officers are ineligible for appointment if commissioned officers are twice passed over for promotion. BOARD DISCUSSION: After a review of application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. The applicant did not complete his bachelor’s degree in time for the CPT promotion selection board, which is required by public law. The record and all evidence provided does not show there was an error or injustice by the government. The advisory opinion recommended denial of his request, he was provided an opportunity to submit a rebuttal; however, he did not respond. Based upon the preponderance of evidence, the Board agreed to recommend denial of his reinstate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), this regulation prescribes policy, eligibility requirements, and administrative procedures for the appointment of commissioned and warrant officers, a. Educational Requirement: Direct appointees who do not already have a baccalaureate degree must have a degree completion plan within 30 days of appointment. Direct appointees will meet with their education support center for development of their plan within 30 days of appointment. College degree completion plans will include the type of degree, a timeline for completion, and an agreement from an accredited university. b. Ineligible: The following persons are not eligible for appointment unless a waiver is authorized under paragraph 1–8: Persons dropped from the rolls or released from AD, or separated from any component of the U.S. Armed Forces for any of the following reasons: (1) Under other than honorable conditions. If, on appeal, an individual’s discharge was changed to separation “under honorable conditions,” he or she is not eligible for appointment solely because of such change. The change in the character of discharge does not alter the official record of the service. Appointment will be tendered or refused based on the facts and merit of the individual case. (2) For unsatisfactory service. (3) Resignation for the good of the service in lieu of court–martial, involuntary separation, or any form of disciplinary or corrective action. (4) Commissioned officers twice passed over for promotion or otherwise released from AD or active status. This is due to failure to be promoted to a higher commissioned grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013196 6 1