MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             6 March 2001                  
	DOCKET NUMBER:   AR2000044702

	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.

	Mr. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelly		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		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:  That his records be corrected by reinstating him to active duty in the Active Guard Reserve (AGR) in the grade of Captain with back pay and allowances.  

APPLICANT STATES:  That he was wrongfully not selected for promotion to Captain, because of his lack of an academic degree; that he had requested a waiver of the educational requirement for promotion in accordance with the National Defense Authorization Act for Fiscal Year 1999 which entitled an officer commissioned through Officer Candidate School (OCS) to receive a waiver of the educational requirement.  

COUNSEL CONTENDS:  Counsel makes no contentions.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant graduated form OCS in August 1990, and successfully completed the Infantry Officer Basic Course.  He remained in the U.S. Army Reserves and in March 1998 applied for, and was assigned to an AGR position with the         402d Civil Affairs Battalion. 

The applicant was considered but not selected for promotion to Captain by the 1997 and 1998 Department of the Army Reserve Component Selection Boards.  The applicant was informed that he was not selected by both boards because he did not meet the educational requirement of attaining a baccalaureate degree prior to the convening dates of the boards, as set forth in Title 10 United States Code, Section 12205, and Army Regulation 135-155.     

On 4 May 1999, the applicant was notified of his second nonselection for promotion to captain, and informed that in accordance with Title 10, United States Code, Section 14513, he would be released from active duty.   

On 18 June 1999, the applicant was awarded a Bachelor of Science degree from Regents College, Albany, New York.

On 20 June 1999, the applicant submitted a request for waiver of the civilian education requirement in accordance with the National Defense Authorization Act for Fiscal Year 1999, and Title 10, United States Code, Section 12205, which states that the Secretary of the Army may temporary waive the baccalaureate degree requirement for promotion for those individuals who were commissioned through the Army Officer Candidate School, on a case-by-case basis considering the individual circumstances of the officer involved.  

On 22 December 1999 the applicant was released from active duty, under the provisions of Army Regulation 600-8-24, for nonselection for promotion.  

On 17 January 2000, the Office of the Deputy Chief of Staff for Personnel (ODCSPER) informed the U.S Total Army Personnel Command that the applicant’s request for waiver of the civilian education requirement of Section 122205, Title 10, United States Code, had been disapproved.  

Army Regulation 135-155, states in pertinent part, that an officer’s educational requirement must be completed prior to the convening date of the promotion board.

Title 10, United States Code , Section 12205 states that a person may not be appointed to a grade above first lieutenant unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  

Section 516 of the National Defense Authorization Act for Fiscal Year 1999 provides that the civilian education requirement for promotion of Reserve officers may be waived for officer’s commissioned through the Army Officer Candidate School.  The waiver will be made on a case-by-case basis, considering the individual circumstances of the officer and may continue in effect for no more than 2 years after the waiver has been granted.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 his records were in error or that there was an injustice in his case.  

2.  The applicant was not selected for promotion to Captain by the 1997 and 1998 Reserve Promotion Selection Board’s because he had not attained a bachelors degree prior to the convening date of either board as required by Title 10, United States Code, Section 12205 and Army Regulation 135-155.  The applicant was awarded a Bachelor of Science degree in June 1999.

3.  The National Defense Authorization Act for Fiscal Year 1999 does provide for a waiver of the civilian educational requirement for those officers commissioned through OCS; however, approval is on a case-by-case basis considering the individuals particular circumstances.  The applicant did request a waiver of the civilian education requirement; however his request was disapproved. 

4.  Although the applicant was commissioned through OCS, and eligible to request a waiver, it was not an automatic entitlement.  There is no evidence that he was denied due process or that there were mitigating circumstances that prevented him from attaining a degree prior to his consideration for promotion.

5.  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

___sk___  ___ewl___  ___hbo__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000044702	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200010306	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  131.00		
2.		
3.		
4.		
5.		
6.