MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 October 2002                   
	DOCKET NUMBER:   AR2002073589

	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 J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  An education waiver for his first non-selection for promotion to captain due to his deployment.  He also requests, in effect, promotion reconsideration to captain under 2000 and 2001 criteria.

APPLICANT STATES:  That he is requesting reconsideration for the promotion boards of 1999 and 2000 based on the fact that he was deployed overseas and was precluded from completing his degree.  During this time he was enrolled as a full-time student, had accumulated 130 of the needed 180 college credits and he was scheduled for graduation in September 1999 and at the same time he received Federal deployment orders for Operation Southern Watch.  He also states that he has currently completed his degree program (April 2002) and is awaiting his diploma.  In a memorandum dated 29 September 2002, the applicant further states that he was originally twice non-selected based on the lack of civilian education due to mission requirements preventing him from completing the program he was enrolled.  He is educationally qualified to the rank of major (sic) and submits a copies of his orders, a copy of his transcript and a letter of support from his commanding general dated 27 August 2002, recommending his retention.  He also states that as of 1 October 2002, he will be removed from the rolls of the National Guard and placed in the USAR Control Group (Reinforcement).  This is not the end state he desires for his career.

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

He was appointed in the Oregon Army National Guard (ORARNG) as a second lieutenant effective 24 July 1993.  He was appointed without a baccalaureate (BA) degree.

He was promoted to first lieutenant effective 24 July 1996.  His maximum time in grade (MTIG) date for promotion to captain was 23 July 2000.

His 1997 officer evaluation report (OER) stated that he “needs to complete his civilian education so that he is not overlooked for future assignments and promotions.”  His 1998 OER stated that he was scheduled to complete his BA degree in June 1999.  The OER also stated “He needs to complete his civilian and military education in order to remain competitive with his peers.”

Orders dated 22 September 1999 show the applicant was ordered to active duty in support of Operation Southern Watch with a report date of 29 September 1999, not to exceed 270 days (9 months).  He returned on 11 March 2000, completing 5 months and 13 days of active duty.  He had prior various short tours from 1 day to 2 weeks.

He was not considered for promotion to captain by the 1999 Reserve Components Selection Board (RCSB), which convened on 9 November 1999.
He was considered and not selected for promotion to captain by the 2000 and 2001 RCSB’s, which convened on 13 November 2000 and 12 November 2001, respectively.  He was not qualified for promotion based on the lack of the required civilian education, a BA degree

On 28 March 2002, the applicant requested promotion reconsideration and an educational waiver of his first non-selection from the Office of Promotions, Reserve Components, Total Army Personnel Command.  The applicant stated that he would have completed his degree program before his first promotion board met, provided he had not been deployed overseas.

In a memorandum dated 27 August 2002, the applicant’s commanding general, the Commander, 41st Separate Infantry Brigade, 7th Infantry Division, ORARNG, requested favorable action on the applicant’s request.  He stated that the applicant had completed every mission that was asked of him, and when he activated the applicant’s company for Operation Southern Watch, the applicant performed admirably.  He also stated that he recognized the Operation Southern Watch mission put the applicant in jeopardy of continuing his career in the ORARNG; however, since the applicant had since completed his civilian and military education, he highly recommended that his request be favorably looked upon.

His transcript (copy) from City University, Bellevue, Washington, shows “DEGREE GRANTED:  09/30/2002.”

He was scheduled for honorable separation from the ORARNG effective 1 October 2002 based on his non-selection for promotion to captain.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required education.

The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification.  
The ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve Component officers.  The law was implemented 1 October 1996.  The ROPMA provides that an officer selected for the first time for promotion to captain will be promoted on or before the date that he/she completes the maximum 7 years of service, with approval of the board by the President.

Under ROPMA, in order to be qualified for promotion to captain, an individual must have completed 5 years of time in grade as a first lieutenant (previously 4 years prior to the ROPMA), an officer basic course, and a BA degree on or before the convening date of the respective promotion boards.  Individuals will receive mandatory promotion consideration prior to their MTIG date so that, if selected, they may be promoted on their future MTIG date.

Public Law 105-261, Section 516 granted authority for a temporary waiver of a BA degree requirement for promotion to captain for certain Army Reserve officers.  The law specifies that the Secretary of the Army may waive 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 grated.  A waiver under this section may not be granted after 30 September 2000. 

The Chief, Special Actions Branch, Office of Promotions, expressed the opinion that a review of the applicant’s records revealed that he was considered by the 2000 and 2001 RCSB’s and not selected.  The reasons for non-selection are usually unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board.  However, in this case, the applicant could not be selected based on the fact his 2000 and 2001 records did not reflect completion of the required civilian education (BA degree) by the convening date of the boards.  The applicant was promoted to first lieutenant while a member of the ARNG on 24 July 1996.  The applicant needed 5 years time in grade in order to be eligible for consideration for promotion to captain and to meet the education requirements.  The applicant stated that he was originally due to graduate in September 1999, but due to his extensive deployment, his degree did not get completed until April 2002.

He also states that there are no provisions to waive the civilian education requirement.  In accordance with Title 10, United States Code, Section 12205 and Army Regulation 135-155, an officer must meet the required educational requirements prior to the convening date of the promotion board.  Since the applicant was not educationally qualified, he has no basis for an SSB.  It was also recommended that his request for an educational waiver for the civilian education be denied. 
The opinion was forwarded to the applicant for rebuttal/acknowledgement on 11 June 2002.  In his rebuttal dated 14 August 2002, the applicant states that he was originally non-selected twice, based on lack of civilian education due to mission requirements preventing him from completing the program in which he was enrolled.  His records were not complete in that they were missing his transcripts, which he enclosed with his rebuttal response.  He also states that he is confident that if his request is granted, he will be selected for the rank of captain and be able to continue his military career.

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(s), it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to an educational waiver and promotion reconsideration to captain.  The Board does not dispute the applicant’s admirable record of service; however, he has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions and those of his commanding general, that the Operation Southern Watch mission put the applicant in jeopardy of continuing his career in the ORARNG and that the applicant was unable to complete his degree program in September 1999, as scheduled, due to this deployment overseas, have been noted by the Board.  However, the applicant was advised as early as 1997 that he needed to complete his civilian education in order to remain competitive with his peers and needed to complete his civilian education so that he was not overlooked for future assignments and promotions.  The applicant had from 24 July 1996, prior to his mobilization (29 September 1999) and subsequent to his mobilization, from his return, on 11 March 2000, until the RCSB’s convening dates to complete his civilian education.  He did not do so.  The requirement for a BA degree is a long-standing requirement for Reserve appointment and promotion; however, the applicant did not complete his degree program until September 2002, and he stated he is still awaiting his diploma.

3.  The Board also notes that his records revealed that the 2000 and 2001 RCSB’s reviewed his transcripts for civilian education completed prior to their convening dates.  The transcript copy provided by the applicant is dated 13 August 2002, which is subsequent to the promotion boards.  The Board further notes that given the applicant was appointed in July 1993, promoted to first lieutenant in July 1996, and that to qualify for promotion to captain, he must have completed a BA degree on or before the convening date of the respective promotion boards, the applicant knew, or should have known, that he would be considered by a promotion board as early as 1999.  The applicant needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.  
4.  Pertinent promotion policy provided for education waivers on a case-by-case basis until 30 September 2000.  The Board notes the applicant did not apply for an education waiver until 28 March 2002, which was too late.  While the Board is empathetic, the applicant’s request shall not be approved after the expiration date of the statutory waiver authority.  Pertinent law clearly specifies that a waiver may not be granted after 30 September 2000.  The Board also notes that the Chief, Office of Promotions, is the approving authority for granting all requests for exceptions to non-statutory promotion requirements, and denied the applicant’s request.

5.  The Board also notes the education requirement pertains to all officers and all officers are considered for promotion to captain under equal standards.  All lieutenants, as in the applicant’s case, were required to have completed their degrees prior to promotion board convening dates, or face non-selection.  

6.  Pertinent regulations specify that an officer must meet the civilian education requirement prior to the convening date of the board.  The regulation does not provide provisions for waiving civilian education.  

7.  The Board further notes that the applicant knew or should have known that completion of a BA degree has been a standing regulatory requirement since 1996.  The general requirements and workings of the system are widely known and specific details such as RCSB dates, promotion zones, and educational requirements are widely published in official, quasi-official and unofficial publications, and in official communications.  

8.  Notwithstanding the opinion received in this case, it is also noted that the application was erroneously not considered by the 1999 promotion board.  Pertinent regulations show, e.g., an officer with a MTIG date of 23 July 2000 should have been considered in 1999, prior to his MTIG date.  This is based on the premise that individuals must be considered for promotion far enough in advance so that, if selected, they may be promoted on or before their MTIG date. However, based on the fact that the applicant had not completed his civilian education by the convening date of the 1999 promotion board, he was not qualified for promotion without the BA degree, and he is also not entitled to promotion reconsideration to captain under the 1999 criteria.

9.  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.

10.  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

_RJW___  _RWA___  _JTM___   DENY APPLICATION

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

INDEX

CASE ID	AR2002073589	
SUFFIX		
RECON		
DATE BOARDED	20021002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.