MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            30 August 2001                  
	DOCKET NUMBER:   AR2001058445

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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:  Promotion to captain effective 17 October 1998, an education waiver granted and dated 30 September 2000 and removal from his personnel records the selection board non-selection results.

APPLICANT STATES:  That he was not afforded the opportunity to utilize the waiver for promotion authorized by Public Law 105-261, section 516 prior to his first selection board in November 1999.  The Texas Army National Guard (TXARNG) did not know the waiver existed until he found a link on the Total Army Personnel Command web site in January 2001.  A waiver was approved through his command channels and had been forwarded to the National Guard Bureau (NGB).  The NGB and the Department of the Army responded that authority to grant the waiver had expired.  He submits copies of Title 10, United States Code, section 12205, a certified copy of his personnel qualification record and the TXARNG approved education waiver, the NGB and DA responses dated 9 February and 4 April 2001, respectively, in support of his request.

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

He was appointed in the TXARNG from Officer Candidate School (OCS) as a second lieutenant effective 7 August 1993.  He did not have a baccalaureate (BA) degree.

He was promoted to first lieutenant effective 3 June 1995.  Based on the 4 years required time in service his maximum time in grade (MTIG) date for captain was 2 June 1999.

He was considered and not selected for promotion to captain by the 1999 and 2000 Reserve Component Selection Boards (RCSB’s).  He was not qualified based on not meeting the education requirement of having a BA degree.

On 10 January 2001, the applicant’s command requested the NGB grant a waiver of the statutory education requirement for promotion to captain.  In the request it is shown the applicant anticipated completing the 24 semester hours for degree completion by 1 September 2001.

On 9 February 2001, the Chief, NGB, Human Resources Policy and Programs Division advised the applicant that his request for waiver of the statutory education requirement prescribed in Title 10, United States Code, section 12205, is returned without favorable action because the NGB did not have the authority to grant waivers for statutory requirements.

In a letter dated 4 April 2001, the Chief, Office of the Deputy Chief of Staff for Personnel, Officer Division, advised the applicant through his congressional representative, that section 516 of the 1999 National Defense Authority allowed 

the Secretary of the Army to grant waivers of the BA degree requirement for appointment to the grade of captain for certain officers commissioned through the OCS.  However, that authority expired on 30 September 2000.  Although waivers granted to officers appointed before that date could extend up to two years, the Secretary of the Army was not authorized to grant prospective waivers for officers beyond 30 September 2000.  The applicant was not eligible for appointment in the higher grade until after consideration by the November 2000 Captain Army Promotion Selection Board.  Thus, he was unable to avail himself of the waiver provision. 

Public Law 105-261, section 516 granted authority for temporary waiver for certain Army Reserve officers of a BA degree requirement for promotion to captain.  The law specifies that the Secretary of the Army may waiver the BA degree requirement of any officer commissioned through the OCS before 17 October 1998.  Any such waiver shall be made on a case-by-case basis, considering the individual circumstances of the officer involved, and may continue in effect for no more than 2 years after the waiver is granted.  A waiver under this section may not be granted after 30 September 2000. 

Title 10, United States Code, section 12205 specifies that no person may be federally recognized in a grade above the grade of first lieutenant as a member of the ARNG unless that person has been awarded a BA degree by a qualifying educational institution.

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 view of the circumstances in this case, the applicant is not entitled to promotion to captain effective 17 October 1998, a waiver dated 30 September 2000 for the educational requirement and removal of his non-selections for promotion.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board has noted his contention that he was not afforded the opportunity to utilize the waiver.  While the Board does not dispute the fact that he did not find out that a wavier existed until January 2001, the authority given to the Secretary of the Army for granting a waiver for the educational requirement of a BA degree expired 30 September 2000.  The Board also notes that the applicant knew well before his considerations by the 1999 and 2000 RCSB’s that he did not possess a BA degree and did not anticipate completion of several semester hours until September 2001. 

3.  The Board further notes that the applicant would not be eligible for promotion to captain effective 17 October 1998, as his MYIG date was 2 June 1999.  It is also noted that his non-selections are based on not being educationally qualified for promotion to captain; therefore, there is no basis for their removal from his personnel record.

4.  The Board concludes that the applicant did not complete the required civilian education prior to the convening date of the 1999 and 2000 boards and is not eligible for promotion.

5.  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 this requirement.

6.  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

_lds____  _rvo____  __cjp___      DENY APPLICATION

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

INDEX

CASE ID	AR2001058445	
SUFFIX		
RECON		
DATE BOARDED	20010830	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.