RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  16 December 2003
	DOCKET NUMBER:  AR2002080111

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. John N. Slone		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, waiver of his military education requirement for promotion to major and appearance before a Special Selection Board (SSB).

2.  The applicant states that Excelsior University conferred a Bachelor of Science Degree based on his transcripts from December 2000.  His college transcripts confirm course requirements for his degree that was completed four months prior to his last Reserve Components Selection Board (RCSB), in March 2001.  After the board results, Excelsior University acknowledged their error in not conferring his degree prior to the March 2001 RCSB.  However, regardless of the conferment date on his diploma, he completed the civilian education requirements prior to his final board.

3.  The applicant provides copies of his:  nonselection memorandum, dated 26 July 2001; memorandum requesting reinstatement, dated 13 June 2002; letter from the Excelsior College, dated 4 January 2002; and a copy of his Bachelor of Science Degree, dated 15 February 2002, with attached transcripts.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show that he was appointed as a second lieutenant (2LT/0-1) in the US Army Reserve on 12 December 1987, with prior military service.  

2.  He was appointed as a 2LT/0-1 on 8 January 1988 in the California Army National Guard (CAARNG).  

3.  He was promoted to captain (CPT/0-3) effective 21 October 1993.

4.  He was not selected for promotion to major by the 2000 and 2001 Army RCSBs based on his not having completed the required civilian education.  Those boards convened on 7 March 2000 with an adjournment date of 6 April 2000 and on 6 March 2001 with an adjournment date of 5 April 2001 respectively.  As a result of his second nonselection, he was required to be discharged with an established removal date not later then 1 January 2002, unless he was eligible for and requested transfer to the Retired Reserve.  

5.  He was mobilized in support of Operation Noble Eagle on 9 October 2001.  He was honorably released from active duty on 1 January 2002 and was assigned to a troop program unit (TPU) in the CAARNG.  On 1 January 2002, he was discharged from the CAARNG and the Reserve of the Army.

6.  He enlisted in the CAARNG on 31 January 2002, in the pay grade and rank of staff sergeant E-6/SSG, for a period of 5 years.  He served on active duty in the pay grade of E-6 in support of Operation Noble Eagle from 5 May to 9 October 2002.

7.  The applicant provided a Retirement Points History Statement, dated 4 January 2002, which shows that he completed 15 years of qualifying service for retirement purposes.  Another statement, dated 27 June 2003, shows that he completed 16 years of qualifying service.

8.  The applicant provided a copy of a letter from the Excelsior College, dated 4 January 2002.  It indicated that the applicant had satisfied the requirements of the Bachelor of Science Degree, through Excelsior College.  It also indicated that he had completed all degree requirements prior to March 2001 and his degree would be officially conferred on 15 February 2002.

9.  The applicant provided a copy of his Bachelor of Science Degree from Excelsior College, dated 15 February 2002, and a copy of his transcripts with a conferment date of 15 February 2002.

10.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, US Total Army Personnel Command (PERSCOM) provided an advisory opinion. The opinion stated that he was not civilian educationally qualified for promotion in accordance with Army Regulation 135-155, paragraph 2-9.  The degree must be conferred not later than the day before the selection board convenes.  The applicant completed all requirements for his baccalaureate degree prior to the March 2001 board; however, it was not conferred until 15 February 2002, after the board convened.  Based on the fact that the degree was conferred after the board, the applicant was not educationally qualified for promotion and does not have a basis for a DA Special Selection Board consideration.  They noted that this Board has the authority to grant a waiver or exception to policy for the date the degree was conferred.  Since the applicant completed all requirements prior to the board, it was recommended that he be granted a civilian education waiver.  If the applicant were granted a civilian education waiver his case would be returned to PERSCOM for consideration by an SSB.

11.  The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of his case.  The applicant responded within the time frame allotted and concurred on 5 May 2003.

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel.  The regulation provides that in order to be qualified for promotion to major an individual must have completed Combined Arms Services Staff School (CAS3), 7 years of time in grade (TIG) as a captain, and an officer advanced course (OAC) on or before the convening date of the respective promotion board.  There are no waiver provisions provided in the regulation.

13.  In pertinent part, Army Regulation 135-155 states that an officer who twice fails to be selected for promotion to captain, major, or lieutenant colonel will not again be considered for promotion and will be removed from an active status.

14.  The same regulation prescribes the policies and procedures for promotion reconsideration by a standby promotion advisory board.  Standby consideration may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgement of the reviewing official (or body), it caused an individual's nonselection 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 nonselection, except if an individual is not qualified for noncompletion of required military or civilian schooling.

15.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.

16.  Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty for training exceeding 90 days.  Paragraph 4-4 pertains to the removal from an active status.  It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed all requirements for his baccalaureate degree four months prior to the March 2001 RCSB; however, Excelsior University failed to confer the applicant's degree prior to the convening date of the March 2001 RCSB.  After the board results, Excelsior University acknowledged their error in not conferring his degree prior to the March 2001 RCSB.

2.  The applicant was considered for promotion by the 2000 and 2001 RCSBs and was not selected based on not having completed the required civilian education.  His second RCSB convened on 6 March 2001.  As a result of his second nonselection, he was subsequently released from active duty effective 1 January 2002 and discharged from the CAARNG and the Reserve of the Army effective 2 January 2002.

3.  The Board now determines that it is appropriate to grant a waiver to the policy pertaining to the completion date of civilian education since the applicant completed all requirements prior to the 2001 RCSB.  Therefore, his records should appear before an SSB under the 2001 criteria for promotion consideration to major.  

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

BOARD VOTE:

__sc___  __sp____  ___js___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

a.  by showing that he was granted a waiver for civilian education prior to 6 March 2001; 

b.  by sending the appropriate officer records to the next scheduled SSB for promotion consideration to major under the 2001 criteria; and

c.  by issuing a promotion memorandum showing he was promoted to major on his date of eligibility consistent with the SSB results.

2.  That if not selected, he be so notified.

3.  That insofar as records of the CAARNG are concerned, the ABCMR recommends that, if he is selected for promotion, the Adjutant General of the State of California further correct his records by:

a.  by promoting him and providing Federal Recognition with the appropriate date of rank and effective date of promotion consistent with his SSB results;

	b.  by revoking orders number 355-158, dated 21 December 2001 which discharged him from the CAARNG and the Reserve of the Army effective 1 January 2002; 

c.  by voiding his enlistment in the CAARNG; and

	d.  by offsetting the pay received by the applicant in his now voided enlisted status and paying any difference that may be due.

		__Samuel A. Crumpler______
		        CHAIRPERSON

INDEX

CASE ID	AR2003080111	
SUFFIX		
RECON		
DATE BOARDED	20031216	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR  135-175	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	320	
2.		
3.		
4.		
5.		
6.