PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           7 October 2003
	DOCKET NUMBER:  AR2003083693

	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. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Robert L. Duecaster		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, reconsideration for promotion to captain or a waiver of or exception to policy for civilian education to allow the Department of the Army Special Selection Board to reconsider his records for his promotion from first lieutenant to captain.

3.  The applicant states, in effect, that during the past several years he has been mobilized as a member of the South Carolina Army National Guard.  These mobilizations have involved a major portion of his time and have delayed his opportunities to complete his civilian education requirements.  For this reason, he is asking that he be granted a waiver of or an exception to policy for the civilian educational requirement.

4.  The applicant submits copies of Permanent Orders 37-11 which amend the period of mobilization from 152 days to 270 days ordered in Permanent Orders 337-3, Headquarters, First United States Army, dated 2 December 1996; a copy of Annex A to Orders 249-63, TAGSC (The Adjutant General, South Carolina) dated 30 December 1996; and a copy of Permanent Orders 029-034, State of South Carolina, Military Department, Office of the Adjutant General, dated 16 May 2000; a copy of his transcript from Excelsior College; a copy of the Bachelor of Science Degree conferred upon him on 15 February 2002; a letter of support from the Academic Advisor, School of Liberal Arts, Excelsior College; a Memorandum for Record from the Administrator, Office of the Adjutant General, Military Department, the State of South Carolina, dated 19 March 2002; a Memorandum of Support from the Commander, McCrady Training Center, Eastover, South Carolina, dated 26 June 2002; a copy of a Memorandum of Support form the Surface Maintenance Manager, Office of the Adjutant General, Military Department, the State of South Carolina, dated 3 July 2002; and a copy of a Memorandum of Support from the Executive Officer, the South Carolina Army National Guard Recruiting and Retention Force, dated 2 July 2002; in support of his request.  The applicant later "faxed" and sent in by mail, a number of other documents not directly related to the promotion reconsideration issue.

5.  The applicant’s military records show that he enlisted in the South Carolina Army National Guard (SCARNG) on 20 February 1986.  He was enrolled in and successfully completed Officer Candidate School in the SCARNG in August 1994.  He was honorably discharged on 5 August 1994 in the rank and pay grade staff sergeant, E-6, under the provisions of National Guard Regulation 600-200, paragraph 8-26c, to accept an appointment as a commissioned officer.

6.  The applicant was commissioned in the Ordnance Corps as a second lieutenant in the SCARNG on 6 August 1994.  He was initially assigned to the 3649th Maintenance Company for duty as a platoon leader.  On 1 September 1994, he was transferred to the 742nd Maintenance Company for duty as a platoon leader.  He was ordered to active duty for deployment in support of Operation Joint Endeavor on 31 December 1996, and on 13 January 1997, he was promoted to first lieutenant.  He was released from this period of active duty and returned to the 742nd Maintenance Company on 18 September 1997.

7.  According to Item 17 (Civilian Education and Military Schools), DA Form 2-1, Personnel Qualification Record, Part II, the applicant had completed 3 years of college towards a baccalaureate degree at Wofford College in Spartanburg, South Carolina, before he was commissioned.

8.  On 5 February 2002, the Academic Advisor, School of Liberal Arts, Excelsior College prepared a letter "To Whom It May Concern" pertaining to the applicant's educational status.  The Academic Advisor states that the applicant had met the requirement for the Bachelor of Science Degree with the Liberal Arts Option and that Excelsior College was in receipt of the transcripts on 7 November 2001.  On 28 December 2001, an advisor had completed the official academic evaluation and had determined that he was eligible for graduation.  The applicant's file was brought before the Academic Evaluation Specialist on 2 January 2002 and it was confirmed that he had indeed completed his degree requirements.  Excelsior College, Albany, New York, a Member of The University of the State of New York, conferred a Bachelor of Science Degree upon the applicant on 15 February 2002.

9.  The applicant was considered and was not selected for promotion to captain by the 2000 and 2001 Reserve Components Selection Board (RCSB), which convened on 13 November 2000 and 13 November 2001, respectively.  He was considered and not selected for promotion to captain by these boards because, when he was considered for promotion to captain, he was not civilian educationally qualified for promotion in accordance with Army Regulation (AR) 135-155, paragraph 2-9.

10.  The applicant was separated from the SCARNG on 26 September 2002 because of his two-time non-selection for promotion to Captain and was transferred to the US Army Reserve Control Group (IRR).  

11.  On 27 September 2002, the applicant was released from the US Army Reserve Control Group and was assigned to the SCARNG, due to his enlistment in that component of the service.  He is currently serving as a member of the SCARNG in pay grade, E-4.

12.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, US Total Army Personnel Command (PERSCOM), St. Louis, Missouri, has opined that when the applicant was considered for promotion to captain by the 2001 DA RCSB, he was not civilian educationally qualified for promotion in accordance with AR 135-155, paragraph 2-9.  In accordance with the regulation, the degree must be conferred not later than the day before the selection board convenes.  The Chief, Special Actions Branch added that, the applicant completed all requirements for his baccalaureate degree on 7 November 2001, after the board convened.  Based on the fact the degree was conferred after the board convened, the applicant was not educationally qualified for promotion and does not have a basis for DA Special Selection Board (SSB) consideration.

12.  In his advisory opinion, the Chief, Special Actions Branch, stated that the Board has the authority to grant a waiver or exception to policy for the date the degree was conferred, and since the applicant completed all requirements prior to the board, he recommended that the applicant be granted a waiver for the educational requirement.  He added that if this Board rules in the applicant’s favor, he will have a basis for a special board consideration and his case should be returned to the Special Actions Branch, Office of Promotions, Reserve Components, for special board action.  The advisory opinion was forwarded to the applicant for rebuttal/acknowledgement on 23 April 2003.  The applicant failed to respond to the advisory opinion.

13.  Army Regulation 135-155 prescribes the policies for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the US Army Reserve (USAR).  This regulation also covers promotion eligibility and qualification requirements.  

14.  Paragraph 2-9, of the above regulations states, "Effective 1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited educational institution recognized by the Secretary of Education or within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense (DOD) for purposes of meeting officer educational requirements."

15.  Excelsior College (formerly known as Regents College) is an accredited institution recognized by the Middle States Association of Colleges and Schools.  The Middle States Association of Colleges and Schools is recognized by the U.S. Department of Education.

CONCLUSIONS:

1.  The Board noted that the applicant was considered and not selected for promotion to captain by the 2000 and 2001 Reserve Components Selection Board (RCSB), which convened on 13 November 2000 and 13 November 2001, respectively.

2.  The Board also noted that for promotion to the rank and pay grade of captain, O-3, a first lieutenant must have completed a baccalaureate degree from an accredited educational institution recognized by the Secretary of Education, or within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense (DOD) for purposes of meeting officer educational requirements.

3.  The Board further noted that the applicant was considered and was not selected for promotion to captain by these boards because, when he was considered for promotion to captain, he was not civilian educationally qualified for promotion in accordance with the applicable regulation.

4.  The evidence of record confirms that the applicant completed all academic requirements necessary to receive his baccalaureate degree from Excelsior College on 7 November 2001 but that the degree was not conferred upon him until 15 February 2002.  The applicant had met the requirement for the Bachelor of Science Degree a full seven days before the 2001 Reserve Components Selection Board convened.

5.  The Board concludes that it would be unjust to deny the applicant promotion reconsideration based on the technicality that his degree was not formally conferred prior to the convening date of the 2001 promotion board, given he had completed all the academic requirements for a baccalaureate degree before the convening date of the 2001 RCSB.  Thus, the Board concludes that it would be appropriate to correct the applicant’s records to show he was educationally qualified for promotion before the convening date of the 2001 Captain’s RCSB and to refer his records to a SSB to reconsider his records for his promotion from first lieutenant to captain.

6.  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 had completed all requirements for award of a baccalaureate degree before the convening date of the 2001 Captain Reserve Components Selection Board, 13 November 2001;

b.  following administrative implementation of the foregoing, submitting his records to a duly constituted SSB for promotion reconsideration under 2001 criteria.

2.  If selected for promotion to captain:

a.  further correcting his records to show that he was promoted to the next higher grade on his date of eligibility;

	b.  voiding his discharge as a commissioned officer as being of no force or effect;

c.  voiding his enlistment contract and awarding him qualifying service creditable towards a Reserve retirement from the date of his now-voided discharge to the date of his return to service as a Reserve as an officer and as a member of the SCARNG with any back pay due;

	d.  placing an adequate explanation in his official military personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge to the date of return to service as a Reserve and as a member of the SCARNG, was not due to any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and 

	e.  expunging all documents related to his now-voided non-selection for promotion, and his discharge from his official military personnel records.

3.  That if not selected for promotion to captain, the applicant be so notified.

BOARD VOTE:  

__fe ____  ___slp___  __rld ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003083693	
SUFFIX		
RECON		
DATE BOARDED	2003/10/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  311	131.0100	
3.		
4.		
5.		
6.