MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:   AR1999028377

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, reinstatement in an active status.

APPLICANT STATES:  That he was removed from an active status due to     nonselection for promotion for failing to meet the civilian education requirement.  The board met in November 1997 and he was not selected.  He was not notified until October 1998.  The board met again in November 1998 and he was not selected again.  He fulfilled his civilian education in December 1998.  He provides a copy of his Bachelor of Applied Science Degree certificate and transcripts as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from alternate sources.

The applicant apparently entered the Alabama Army National Guard on 30 June 1990.  He apparently was eligible for consideration to promotion to captain by the 1997 and 1998 Reserve Components Selection Boards.  He was nonselected for promotion both times because he had not met the civilian education requirement of a bachelor degree.  

The Bachelor of Applied Science degree certificate provided by the applicant shows he was granted that degree on 4 June 1999 by Troy State University.

Title 10, U. S. Code, section 12205 provides that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  An exception is when the appointment to or recognition in a higher grade of any person who was appointed to, or federally recognized in, the grade of captain before 1 October 1995.

Title 10, U. S. Code, section 14504 provides that a first lieutenant of the reserve active-status list 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 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.

In the processing of this case, an advisory opinion was obtained from the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended disapproval of the applicant’s request as he had not met the civilian education requirement until after the promotion selection boards met.  A copy of the advisory opinion was provided to the applicant.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant did not meet the civilian education requirement, a requirement provided for by law, for promotion to captain until after the 1997 and 1998 promotion selection boards met.  He provides no explanation or evidence to show why he did not know of this requirement prior to the convening of the boards.  He fails to explain the significance of not being notified until October 1998.

3.  Since the applicant twice failed to be selected for promotion to captain, he was removed from an active status as required by law.  In light of paragraph 2 above, the Board concludes that no error or injustice has occurred.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__eb____  __tap___  __klw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028377	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.		
3.		
4.		
5.		
6.