PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             1 July 2003                  
	DOCKET NUMBER:    AR2002077963

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Ted Kanamine R 		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Ms. Karen Y. Fletcher		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, that he be granted the civilian education waiver for promotion to major (MAJ) authorized by law.

3.  The applicant states, in effect, that after reviewing the guidelines given to the selection boards in the years 2000 and 2001, the Reserve Officer Personnel Management Act (ROPMA), and speaking with officials of the Army Personnel Command (PERSCOM), St. Louis, Missouri, Reserve Component (RC) promotions office, he believes the Promotion Selection Boards (PSB) were not given all the necessary information for selecting officers for promotion to MAJ in the years 2000 and 2001.  He claims that according to the Department of the Army (DA) notification of promotion status memorandum, dated 7 March 2000, he was not selected for promotion to MAJ because the requirement for civilian education cannot be waived.  He states this was also a factor during his promotion consideration in the year 2001.  The applicant further states that under the provisions of the ROPMA, any officer appointed to the grade of captain (CPT) before 1 October 1995 is granted an exception to the civilian education requirement for promotion to MAJ.  In support of his application, he provides PERSCOM promotion status notification memoranda for the 2000 and 2001 PSBs, and an extract of the ROPMA book, dated 11 September 1995.

4.  The applicant’s military records show that while serving as a CPT in the Hawaii Army National Guard (HIARNG) he was considered and not selected for promotion by both the 2000 and 2001 DA RC MAJ PSBs.

5.  On 10 August 2000, PERSCOM, St. Louis, published a memorandum notifying the applicant that he had been considered and not selected for promotion to MAJ by the 2000 DA RC PSB.  This memorandum further indicated that the applicant’s records did not indicate that he had completed the required civilian and/or military education requirement by the date the PSB convened.  

6.  On 26 July 2001, PERSCOM, St. Louis, published a second promotion status memorandum that notified the applicant that he had been considered and not selected for promotion to MAJ by the 2001 PSB.  It further indicated that the PSB had examined the performance portion of the applicant’s Official Military Personnel File (OMPF) according to the instructions provided by the Secretary of the Army.  

7.  The applicant submitted a promotion status inquiry to promotion officials at PERSCOM, St. Louis, and on 28 June 2002, the Chief, Special Actions Branch, Office of Promotions, RC, PERSCOM, St. Louis responded to his letter.  The response indicated that the reasons for non-selection are usually unknown because statutory requirements prevent disclosure of promotion board proceedings.  However, in the applicant’s case, he could not be selected because his records did not reflect that he had completed the required civilian education by the convening date of either the 2000 or 2001 PSBs. 
8.  The Chief Special Actions Branch memorandum further indicated that there were no provisions for waiving the civilian education requirement, and based on the Memorandum of Instructions for the 2000 and 2001 promotion boards, officers were required to meet the civilian education requirement prior to the convening date of the boards.  Finally, it indicated that since the applicant was not educationally qualified, he did not have a basis for a Special Selection Board (SSB).  

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief Special Actions Branch, Office of Promotions, RC, PERSCOM, St. Louis.  It indicated that in the applicant’s case, he could not be promoted based on the fact that his record did not reflect completion of the required civilian education (Bachelor’s Degree).  It further indicated that there are no provisions to waive the civilian education requirement, and the applicant was provided a copy of Memorandum of Instructions (MOI) for both the 2000 and 2001 PSBs, which contained the guidance provided to the promotion boards by the Secretary of the Army.  The MOIs stated that if an officer was appointed on or after 1 October 1987, he/she must possess a baccalaureate degree from an accredited institution no later than the convening date of the promotion board.  The applicant was appointed on 13 May 1988; therefore, he was required to have the degree in order to qualify for promotion.  

10.  On 12 February 2003, the applicant was provided a copy of the PERSCOM, St. Louis, advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.  

11.  Title 10 of the United States Code, section 12205 (10 USC 12205) provides the legal criteria for the appointment education requirement for commissioned officers.  It provides a general policy that states that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of lieutenant (junior grade) in the Naval Reserve, or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  Paragraph B provides exceptions to this education criteria.  It specifically provides an exception to the education requirement that allows for the appointment to or recognition in a higher grade of any person who was appointed to, or federally recognized in, the grade of captain or, in the case of the Navy, lieutenant before October 1, 1995.  

12.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).
13.  Paragraph 2-9 contains the civilian education requirement for promotion.  It states that 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 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. 

14.  Paragraph 2-9b states that the baccalaureate degrees required for Reserve promotion to MAJ or above, must be completed not later than the day before the selection board convene date. Paragraph 2-9b(1) provides that all commissioned officers not previously appointed to or Federally recognized in the grade of CPT before 1 October 1995 must meet the baccalaureate degree requirement; and paragraph 2-9b(2) states that all commissioned officers initially appointed on or after 1 October 1987 must possess a baccalaureate degree. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he be provided an exception to the civilian education requirement for promotion to MAJ by law, and it finds this claim has merit.  

2.  The Board carefully considered the position taken in the PERSCOM, 
St. Louis, advisory opinion, which rests its conclusions on the regulatory guidance and instructions to the PSBs, which indicate that all officers appointed after 1 October 1987 are required to meet the civilian education requirement for promotion.  It finds this information and logic is sound absent the specific exception granted in 10 USC 12205.  

3.  The Board recognizes the broad latitude and discretionary authority provided to the Department in establishing promotion criteria and policy.  However, given the specificity of the civilian education exception granted to officers appointed to the grade of CPT before 1 October 1995 by 10 USC 12205, and absent any grant of Secretarial discretion in this section of the law, the Board finds that the intent of this law was clearly to provide a blanket waiver of the civilian education requirement to all officers in this category.  

4.  In view of the facts of this case, the Board concludes that it would be appropriate to correct the applicant’s record to show that he was granted an exception to the civilian education requirement for promotion to MAJ and by placing his record before a SSB for promotion reconsideration to MAJ under the criteria used by the 2000 and 2001 DA RC MAJ PSBs.  

5.  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 showing that the individual concerned was granted an exception to the civilian education requirement for promotion to major, and by submitting his corrected record to a duly constituted Special Selection Board for promotion consideration to major under the criteria followed by the 2000 and 2001 DA RC MAJ Promotion Selection Boards.

2.  If selected for promotion by the Special Selection Board, the record of the individual concerned should be corrected by expunging all references to his 
non-selection for promotion, by establishing his MAJ promotion effective date and date of rank as if he had been originally selected by either the 2000 or 2001 Promotion Selection Board, whichever is appropriate, and by providing him all back pay and allowances due as a result. 

BOARD VOTE:  

_KF___  __MM__  _TK___  GRANT AS STATED IN RECOMMENDATION

________  ________  ____  GRANT FORMAL HEARING

________  ________  ____  DENY APPLICATION

		Ted S. Kanamine
		 CHAIRPERSON

INDEX

CASE ID	AR2002077963	
SUFFIX		
RECON		
DATE BOARDED	2003/05/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310 	131.0000	
2.		
3.		
4.		
5.		
6.