MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 August 2003                  
	DOCKET NUMBER:   AR2002082567

	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. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		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:  In effect, correction to her Oath of Office date when she was appointed as a second lieutenant.

APPLICANT STATES:  That her Oath of Office was administered on 9 September 1986.  Her appointment letter was her appropriate date and her Oath of Office date was changed to 2 October 1986.  The importance of this discrepancy is the fact that she would not have the requirement for completion of a baccalaureate (BA) degree in nursing and could be promoted to the next rank. In support of her application she submits copies of her appointment letter and Oath of Office.

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

On 9 September 1986, she was issued an appointment memorandum directing her appointment as a Reserve commissioned officer of the Army effective upon her acceptance.  The appointment memorandum also stated that she was to execute the enclosed Oath of Office and return it promptly to Headquarters, Appointments Branch, Army Reserve Personnel Command.  The execution and return of the Oath of Office constituted her acceptance of the appointment.

Her Oath of Office was executed on 2 October 1986 and she was appointed in the Reserve, Army Nurse Corps, as a second lieutenant effective that date.

She was promoted to first lieutenant effective 1 October 1989 and promoted to captain effective 30 September 1993.

Based on the required 7 years time in grade, her maximum time in grade date for promotion to major was 29 September 2000.

She was considered and not selected for promotion to major by the 2000 and 2001 Reserve Components Selection Boards (RCSB’s), which convened on 7 March 2000 and 6 March 2001, respectively.  She was not qualified for promotion based on the lack of the required civilian education, a BA degree.

Her records did not show she has completed a BA degree in nursing.

She was separated from the Reserve effective 1 January 2002, based on her two non-selections.

On 24 June 2002, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command, replied to a congressional inquiry on behalf of the applicant and advised that the reasons for the applicant’s non-selections by the 

2000 and 2001 RCSB’s was due to the fact that her promotion consideration file did not reflect completion of the required civilian education requirements, a BA degree in nursing by the convening date of the boards.  The promotion regulation states that an Army Nurse officer appointed on or after 1 October 1986, must possess a BA degree in nursing prior to promotion to major. The applicant was appointed on 2 October 1986 as a second lieutenant and was subsequently promoted to captain on 30 September 1993, allowing her over 13 years to complete the civilian education requirements.  Based on this information and the fact that the applicant was not educationally qualified, she would not complete the degree until late summer/early fall of 2002, she had no basis for a special selection board.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an ANC officer appointed on or after 1 October 1986, will possess a BA degree in nursing to be eligible for promotion to major and the degree must be completed not later that the day before the selection board convening date. 

The regulation further specifies that promotion reconsideration by a special selection board 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 also specifies that an officer twice non-selected for promotion must be removed from an active status not later that the first day of the seventh month after the month in which the President approved the selection board results.  

DA Form 71 (Oath of Office) specifies that this form will be executed upon acceptance of appointment.  Immediately upon receipt of notice of appointment, the appointee will, in cases of acceptance of the appointment, return to the agency from which received, the Oath of Office (on this form) properly filled-in, subscribed, and attested.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to her Oath of Office date and promotion to major.  She has not shown error, injustice, or inequity for the relief she now requests.

2.  The Board notes the applicant’s contentions; however, the evidence of record shows that the applicant executed her appointment into the Reserve on 2 October 1986, upon completion of her Oath of Office and not on 9 September 1986, the date of her appointment memorandum.  Her appointment memorandum stated that her execution and return of the Oath of Office constitutes her acceptance of the appointment.  

3.  The Board further notes the applicant’s contention that she be promoted to major; however, based on the fact that the applicant had not completed her civilian education by the convening date of the 2000 and 2001 promotion boards, she was not qualified for promotion without the BA degree, and she is also not entitled to promotion reconsideration to major.  The requirement for a BA degree in nursing is a long-standing requirement for a Reserve Army Nurse officer appointment on or after 1 October 1986 and for promotion to major.

4.  The Board also notes that given the applicant was promoted to captain in September 1993, and that to qualify for promotion to major she must have completed 7 years time in grade and a BA degree in nursing on or before the convening date of the respective promotion boards.  The applicant knew, or should have known, that a promotion board would consider her as early as 2000. The applicant needed to insure, well in advance, that her record would present her career and qualifications to that board in the best possible light.  

5.  The Board further notes that no provisions are provided for the applicant’s Oath of Office date to be changed and she would not have the requirement for completion of a BA degree in nursing for promotion to major.  While the Board is empathetic, the applicant has no basis for an adjustment and consideration by a special selection board.

6.  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.

7.  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

_MVT____  _FNE___  _JTM___   DENY APPLICATION

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

INDEX

CASE ID	AR2002082567	
SUFFIX		
RECON		
DATE BOARDED	20030819	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	102.00	
2.	131.00	
3.		
4.		
5.		
6.