ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180000591 APPLICANT REQUESTS: in effect, that his separation retirement order be revoked or suspended or have new orders issued to return him to full service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Email correspondence with the Army Review Board Agency (ARBA) * College Transcripts FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that he was separated due to being classified as a two times non-select for captain (CPT) due to civilian education. He completed his education requirements prior to the board but was not “conferred” until after the board convened. He has a memorandum from the Secretary of Defense ordering suspension of separation actions for first lieutenant (1LT) to CPT non-selects due to education, but the Human Resources Command (HRC) failed to apply the directive to his separation. He also currently has over 16 years of federal active service at the time of retirement and was not allowed to request early retirement. He requests that his separation retirement orders be revoked or suspended or that orders be issued to return him to full service. 3. The applicant provides a copy of his college transcripts which with a Bachelors in Criminal Justice conferred on 15 May 2014. 4. A review of the applicant’s active duty service record shows the following: a. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he enlisted in the Army National Guard (ARNG) on 27 June 1990. He was released from active duty on 24 August 1990 with his character of service uncharacterized. b. A certificate of discharge, dated 6 January 1992, shows that the applicant was discharged from the ARNG with an honorable discharge. c. Orders 4-13, dated 7 January 1992, reflects assignment to active duty for a period of 3 years. d. DD Form 214 shows that he served on active duty from/to: * 07 January 1992 to 11 August 1995 and was released from active duty with an honorable character of service * 30 November 1997 to 8 August 1998 and was released from active duty and transferred to the 321 Calvary Brigade in San Antonio Texas with no character of service noted. * 3 February 2003 to 21 May 2003 and was released from active duty with an honorable character of service e. Orders R-09-374755, dated 12 August 2003, ordered the applicant to active duty from 7 September 2003 to 13 September 2003 to attend Active Guard Reserve Entry Training (AGRET). f. Orders R-02-980468, dated 12 February 2009, released the applicant from active duty for the purpose of reenlistment in the U.S. Army Reserve (USAR) and ordered to active duty in the active guard for 3 years with an effective date of reenlistment of 27 May 2009. g. Orders D-09-990139, dated 22 September 2009, discharged the applicant from the active guard with an effective date of 23 October 2009 preceding acceptance of a commission as an officer in the USAR. h. DD Form 214 shows that he served on active duty from/to: * 7 September 2003 to 23 October 2009 and was released from active duty with an honorable character of service * 6 January 2010 to 19 March 2010 and was released from active duty with an honorable character of service * 15 September 2010 to 9 November 2011 and was released from active duty with an honorable character of service i. Orders BN-264-0012, dated 21 September 2010, deployed the applicant in support of Operation Enduring Freedom Guantanamo from 24 September 2010 not to exceed 321 days. j. Orders B-04-102751, dated 25 April 2011, shows that the applicant was promoted to 1LT with an effective date of 23 April 2011. k. On 7 June 2012, the applicant received his Notification of Eligibility for Retired pay at age 60. The letter states he completed the required years of qualifying reserve service and is eligible for retired pay at the age of 60. l. Memorandum, dated 23 August 2012, suspends section 14504a of Title 10 USC for reserve component (RC) 1LT twice non-selected for promotion. Suspension of the application allows, at a critical time of need, the retention of these RC officers and additional time to complete the requisite education requirements to make them eligible for selection by a subsequent promotion selection board. m. Memorandum, dated 29 August 2012, suspends section 14504a of Title 10 USC for reserve component (RC) 1LT twice non-selected for promotion. This policy protects the Army’s investment in its critical wartime medical specialties by including the retention of RC 1LT obligated under specialized training assistance program, who are twice non-selected for promotion. n. Orders BL-283-0014, dated 09 October 2012, deploys the applicant in support of Operation Enduring Freedom Guantanamo from 11 October 2012 not to exceed 359 days. o. On 29 October 2012, the applicant received notification of his first non-selection for promotion due to no records showing that he completed the civilian and or military education requirement by the day before the board the board convened. p. Orders A-07—310405, dated 19 July 2013, retained the applicant on active duty from 24 July 2013 to 21 September 2013. q. Orders A-09-313167, dated 16 September 2013, retained the applicant on active duty from 17 September 2013 to 14 March 2014 to participate in the reserve component Soldier in transition medical retention processing program for completion of medical care and treatment. r. Orders 329-001, dated 25 November 2013, released the applicant from active duty with an effective date of 14 January 2014. s. DD Form 214 shows that he served on active duty from 31 August 2012 to 14 January 2014. He was released from active duty with an honorable character of service. The DD Form 214 also shows he was deployed to Guantanamo Bay Cuba from 11 October 2012 to 9 July 2013. His record is absent evidence he received a combat-related injury during this deployment. t. Orders 14-235-00015, dated 23 August 2014, assigned the applicant to the retired reserve due to promotion non-selection with an effective date of 1 October 2014. u. An advisory opinion from Human Resource Command, dated 6 April 2018, states based on the review of our records and the information provided, we find that the applicant request to compete for promotion to the grade of captain based on completion of civilian education requirements prior to the FY14 CPT APL Promotion Selection Board (PSB) convening does not have merit. The applicant was provided a copy of the advisory opinion on 24 April 2018 which also included an Ex-Parte letter with the same date informing him that he had 30 days from the date of the letter to respond to the advisory opinion. v. The applicant provided a 4 page rebuttal summarizing his facts as the following: * He contacted HRC regarding this matter and was told that they knew of the memo, and that they did not feel that it applied to him, and that he was just going to have to accept the situation * He then contacted the ASA (Assistant Secretary of the Army) memo POC inquiring about the memo and how it applied to officers who no longer had a military service obligation * ASA stated that they were aware of the issue and was rewriting the memo to include specific instructions regarding how to handle these officers that meet all other criteria * ASA stated that they did also mention that it was not the intention to exclude these officers in the policy * The applicant brought these facts to the attention of HRC and was told that it was not how they interpreted the policy and that they were still processing the separation * The applicant spoke with several military attorneys at Fort Belvoir, VA, Fort Meade, MD, as well as the 200th Military Police Command, and all stated that HRC should conduct a legal review of the issue and that he clearly fell within the guidelines of the policy for the reasons stated above * No record of two non-selects can neither be found nor provided and he was clearly entitled to and then denied early retirement * The applicant’s failure to meet the requirements were through no direct fault of my own, as he was obligated to follow Army orders, to wit report for combat deployments and medical procedures, thus causing a delay in his education 5. By regulation, (AR) 135-155 Promotion of Commissioned Officers and Warrant Officers other than General Officers, paragraph 2-9 a. 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. 6. AR 600-8-29 (Personnel-General-Officer Promotions) paragraph 1-13 states that an officer on the Active Duty List who has failed to be selected for promotion to CW3, CW4, CW5, CPT, MAJ, or LTC a second time will be subject to one of the following: (1) Discharged or released from active duty according to AR 600–8–24. (2) Retired under any provision of law, if eligible, on the date requested by the officer and approved by proper authority (retirement will be not later than the first day of the seventh month beginning after the month in which the President or the President’s designee approves the report of the board that considered the officer the second time). (3) Retained on active duty (if a commissioned officer) until qualified for retirement if, on the date the officer would otherwise have been discharged, he or she is within 2 years of qualifying for retirement under 10 USC 1293, 3911. (4) Retained on active duty (if a warrant officer) until qualified for retirement if he or she is within 2 years of qualifying for retirement on the date the SA approves the board report. (5) Selectively continued under provisions of paragraph 1–14. (6) In the case of fully qualified AMEDD officers, recommended for continuation on active duty by a selective continuation board until all active duty service obligations have been fulfilled as prescribed in paragraph 1–14. 6. Title 10 United States Code, 12205 (a) In General.-No person may be appointed to a grade above the grade of first lieutenant In the Army Reserve, unless that person has been awarded a baccalaureate degree by a qualifying educational institution. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the requirement to complete his undergraduate degree was known by the applicant and he failed to meet the required timeline as outlined within the regulatory guidance and the HRC advisory, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military record. 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. 8/6/2019 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-155 Promotion of Commissioned Officers and Warrant Officers other than General Officers, paragraph 2-9 a. 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. 3. Title 10 United States Code, 12205 (a) In General.-No person may be appointed to a grade above the grade of first lieutenant In the Army Reserve, unless that person has been awarded a baccalaureate degree by a qualifying educational institution.