IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220011168 APPLICANT REQUESTS: promotion to captain (CPT)/O-3 in the Army National Guard (ARNG). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 in pertinent part that he should have been promoted to CPT in December 2010, when his Bachelor of Applied Science degree was conferred. He contests that he did everything required to be promoted to CPT as well as deployed in 2010. During his deployment, his records were not updated but this was not his fault. If he had a choice, he would have remained at home to ensure his promotion occurred. 3. A review of the applicant's available service records reflects the following: a. After serving as an enlisted Soldier within the Army National Guard (ARNG) for over 14 years, on 12 August 2002, the applicant was appointed a Reserve commission as a second lieutenant (2LT)/O-1. b. On 28 February 2003, the applicant failed the Infantry Officer Basic Course. c. On 25 November 2003, the National Guard Bureau (NGB) issued Special Orders Number 299 AR announcing Federal recognition of the applicant's initial appointment in the IAARNG, effective 20 August 2003. d. On 4 April 2006, the applicant completed the Ordnance Officer Basic Course. e. On 13 July 2006, the NGB issued Special Orders Number 176 AR announcing Federal recognition for his promotion to first lieutenant (1LT)/O-2, effective 4 April 2006. f. On 15 September 2008, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year letter). g. On 1 May 2009, the applicant was notified that the 2009 Selective Retention Board (SRB) selected him for retention. He was further advised that he would be considered again in 2010. h. On 1 April 2010, he was notified that the 2010 SRB selected him to be retained for 1 year at which time the board would relook at his records. The SRB based their recommendation to the Adjutant General on the fact that he was an 8-year lieutenant who had not completed his degree and failed the Infantry Officer Basic Course. i. On 14 November 2010, a Suspension Favorable Personnel Actions flag was initiated due to the applicant's noncompliance with the Army weight standards as indicated on 31 October 2010 and for failing the Army Physical Fitness Test on 10 November 2010. j. On 19 December 2010, his Bachelor of Applied Science degree was conferred. k. On 10 January 2011, the applicant received a referred Officer Evaluation Report (OER) covering the period of 11 January 2010 – 10 January 2011. During the rated period, the applicant failed to be in compliance with the Army Weight Control Program and had not passed the APFT. Both the Rater and Senior Rater acknowledged the applicant's completion of his college degree. His record is void of comments pertaining to this referred OER. l. On 31 January 2011, the applicant's weight control flag was removed. m. On 16 August 2011, the NGB issued Special Orders Number 187 AR announcing Federal recognition of his branch transfer from Infantry to Ordnance, 21 July 2011. n. On 1 December 2011, the applicant was honorably released from the IAARNG under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) 5a(3)(a) and Paragraph 5a(10) – (Resignation and Failure to be Selected for Promotion to the Next Higher Grade after Second Consideration) and transferred to the Retired Reserve at the rank of 1LT. o. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 14 years, 2 months, and 17 days of total service for retired pay. p. On 30 December 2011, the NGB issued Special Orders Number 352 AR announcing the withdrawal of the applicant's Federal recognition in the ARNG and transfer to the Retired Reserve, effective 1 December 2011. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant served in the ARNG, as a commissioned officer, from 12 August 2002 to 1 December 2011. He was not recommended for and was twice non-selected for promotion to CPT, presumably due to failing a course of instruction or failing APFT/not meeting weight standards or receiving a negative OER. The Board found no evidence of error or injustice in his non-selection for promotion. 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. REFERENCES: 1. Army Regulation (AR) 600-8-29 (Officer Promotions) provides policies and procedures governing promotion of Army commissioned and Warrant Officers on the Active Duty List (ADL). An 1LT on the ADL who has failed to be selected for promotion to CPT a second time will be subject to one of the following: discharged or released from active duty; 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; retained on active duty 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; or selectively continued. a. Paragraph 1-10 (Promotion Eligibility) provides that 1LTs twice not selected for promotion to CPT are not eligible for consideration by a promotion selection board. b. The promotion of any officer who is in a non-promotable status is automatically delayed. DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be imposed during the delay. The office preparing the DA Form 268 must give that officer written notice of the reason for the delay of promotion before its imposition or as soon thereafter as possible (AR 600–8–2). If a DA Form 268 is in effect at the time an officer's name is announced on a promotion list, the officer's commander will immediately notify him or her of the reason for the delay. c. If an officer is Flagged for APFT failure or non-compliance with AR 600–9, DA Form 268 will be closed by the initiating commander, unless the officer is being recommended for consideration by a promotion review board in accordance with chapter 8 of this regulation. 2. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) paragraph 2-9 (civilian education requirements) 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 convene 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 (DOD) for purposes of meeting officer educational requirements. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011168 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1