PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 September 2002
	DOCKET NUMBER:   AR2002074232

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Donald P. Hupman, Jr.		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, in effect, promotion reconsideration to captain.

3.  The applicant states that his educational institution sent a letter to the 2001 captain promotion board stating he completed the requirements for his bachelor of science degree; however, the block for educationally qualified was never checked and therefore the promotion board never saw the letter or the transcript.

4.  The applicant’s military records show that, after having had prior enlisted service, he was commissioned a second lieutenant in the Army National Guard on 27 September 1994.  He was promoted to first lieutenant on 3 December 1996.

5.  On 26 April 2001, the applicant was notified that he was considered but not selected for promotion to captain because his records indicated he had not completed the required civilian and/or military education by the day the board convened. 

6.  On 2 November 2001, the Office of Admissions and Records, Cameron University, Lawton, OK faxed a letter to the attention of the president of the captain promotion board stating the applicant had met the requirements for a Bachelor of Science degree.  (A copy of this letter, sans letterhead and fax indicator, contained an additional phrase indicating he would be awarded his degree with a date of 15 December 2001.)  The applicant was considered for promotion to captain by the promotion selection board which convened on        12 November 2001.  The applicant's degree certificate is dated 15 December 2001.

7.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and of commissioned and warrant officers of the U. S. Army Reserve.  Paragraph 2-9 states that, effective 1 October 1995, no person may be selected for promotion to the Reserve grade of captain unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution.  It also states that promotion reconsideration by a standby advisory board (STAB) 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, 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.

8.  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.  

9.  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 noted that when the applicant's file was considered by the 2001 Department of the Army Reserve Components Selection Board, he was not educationally qualified.  It noted the Board has the authority to grant him a waiver for the date that the degree was awarded or he could contact the university and request that the date the degree was awarded be changed to a date prior to      12 November 2001.  (Conversation between the Office of Admissions and Records and the analyst on 18 September 2002 elicited the information that they would not do this.  They only issue degrees three times a year.)  If he is granted a waiver for the date of the degree, he would have a basis to be considered by a special board under the 2001 criteria.  That office recommended that the applicant's request be disapproved.

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame. 

CONCLUSIONS:

1.  Notwithstanding the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command recommendation in its advisory opinion, it appears that it would be equitable to reconsider the applicant for promotion to captain under the 2001 criteria.  

2.  Regulatory and statutory guidance is that, in order to be selected for promotion to the Reserve grade of captain, a person must be awarded a baccalaureate degree from an accredited institution not later than the day before the selection board convene date.  In this case, the selection board convened on 12 November 2001.  Because the university's policy was to award degrees only on three specific dates a year, the applicant was not awarded his baccalaureate degree until 15 December 2001.  However, he had completed the requirements for the degree on 2 November 2001 and it was only because of the university's administrative policy that he was not awarded the degree prior to the convene date of the selection board.  

3.  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 applicant was awarded his baccalaureate degree on        2 November 2001 (but ceremoniously presented his degree on 15 December 2001); and

     b.  submitting his records to a duly constituted STAB under 2001 criteria for promotion reconsideration to captain.

2.  That, if selected, the applicant's records be further corrected by showing he was promoted to captain on his date of eligibility as determined by appropriate officials provided he was otherwise qualified for promotion.

3.  That, if not selected, the applicant be so notified.

BOARD VOTE:  

__AAO__  __KWL__  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2002074232	
SUFFIX		
RECON		
DATE BOARDED	2002/09/24	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.11	
2.		
3.		
4.		
5.		
6.