PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           1 November 2001                   
	DOCKET NUMBER:   AR2001058653

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

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be granted a waiver of the statutory requirement to have been awarded a baccalaureate degree to be promoted to captain, and that based on that waiver he be promoted to captain effective 1 December 2000, his promotion eligibility date.

3.  The applicant states that if his request for waiver had been considered, it would have been approved.

4.  In support of his application he submits a copy of correspondence between himself and the US Total Army Personnel Command (PERSCOM) pertaining to his request for a waiver of the educational requirement of a baccalaureate degree to be  promoted to captain.  In that correspondence the applicant states that he was initially told by a professional development officer that he had to have his waiver request submitted by his promotion eligibility date of 5 December 2000.  However, he was told on 24 September 2000, the date he began school, that the requirements for waiver had been changed, that he had to submit a request for waiver by 29 September 2000.  To comply with that deadline, he sent a facsimile of his waiver request to the Total Army Personnel Command (PERSCOM) on 28 September 2000.  He then made repeated inquiries into the status of his request for waiver, but received no reply until December, when he was told that he would not be promoted.  He later discovered that his request had been received by the deadline but had not been forwarded for consideration.  His branch assignment officer told him that a request for exception to policy to promote him was being prepared since his request for waiver wasn’t considered even though it was forwarded in a timely fashion.  However, he was later told that the request for exception to policy wasn’t considered because of statutory prohibitions against his promotion.

5.  The applicant’s military records show that he enlisted in the Regular Army on 17 September 1991, was awarded the military occupational specialties of radio operator/maintainer and infantryman, and was promoted to pay grade 
E-6.  He was discharged from his enlisted status on 4 June 1997 due to his commission as a second lieutenant upon completion of Officer Candidate School (OCS).  The applicant was serving on active duty as a lieutenant when he submitted his request to the Board.

6.  On 1 May 2001 the Deputy Chief of Staff for Personnel (DCSPER) responded to letters the applicant sent to the Acting Secretary of the Army and the Chief of Staff of the Army.  In that response the DCSPER explained that the Secretary of the Army couldn’t grant waivers of the educational requirement for promotion to captain after the date the statutory authority expired.  Since that authority expired on 30 September 2000, the Secretary could not grant a waiver for him to be promoted on 1 December 2000.

7.  On 5 June 2001 the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA, M&RA) sent this Board a memorandum in which he stated that he had approved all requests for waiver of the educational requirement of a baccalaureate degree submitted to him as it was a no risk situation for the Army.  The ASA M&RA encouraged the Board to “consider my practice and intent with regard to approving such waiver requests.”

8.  Title 10, Section 12205 states that “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.”  Section 516 provided for a temporary waiver of a baccalaureate degree for Army OCS graduates.  Subparagraph (b) of this section states “A waiver under this section may not be granted after September 30, 2000.”

CONCLUSIONS:

1.  The Board considers Section 516 to require the Secretary to approve all waivers of the educational requirement for appointment to captain prior to 30 September 2000.  However, the Board considers waivers granted by the Secretary prior to 30 September to be valid for appointments that fall after the termination date of the waiver authority.

2.  Utilizing this interpretation, it is reasonable to assume that the Secretary would have approved the applicant’s request for waiver of the educational requirement for appointment to captain, based on the memorandum provided to the Board by the ASA M&RA, if the request had been processed in a timely manner.

3.  To fix this error, the Board will recommend that the applicant’s records be corrected to show that the ASA M&RA approved the applicant’s request for waiver on 30 September 2000 and, based on that waiver approval, that his records be further corrected to show that he was promoted to captain effective his promotion eligibility date, 1 December 2000.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

	a.  showing that the request for waiver of the educational requirement for appointment to captain submitted by the individual concerned was approved by the appropriate authority on 30 September 2000;
b.  showing that he was promoted to captain effective his promotion eligibility date, 1 December 2000; and

c.  paying to him the difference of pay these corrections will necessitate.

BOARD VOTE:  

___aao _  ____wtm_  ___clg __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Walter T. Morrison _______
		        CHAIRPERSON

INDEX

CASE ID	AR2001058653	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011101	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.