IN THE CASE OF: BOARD DATE: 20 October 2009 DOCKET NUMBER: AR20090003599 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests promotion consideration to captain by a special selection board (SSB). He also requests all back pay and allowances. 2. The applicant states that he was eligible for promotion to captain in November 2007. However, he was not selected for promotion due to not having completed his bachelor's degree prior to the convening date of the board. The applicant offers that he completed his degree less than a month after the board convened. 3. The applicant provides a copy of his Bachelor of Arts Diploma with his college transcript. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show that he received a direct appointment as a second lieutenant in the District of Columbia Army National Guard (DCARNG) effective 4 August 2002. He was promoted to first lieutenant effective 3 August 2004. 2. The applicant's records show he was ordered to active duty in support of Operation Iraqi Freedom effective 18 July 2005 to 27 October 2006. Additionally, his records show he was awarded the Bronze Star Medal for his support. 3. He was considered and not selected for promotion to captain by the 2007 Department of the Army Reserve Components Selection Board (RCSB) which convened on 6 November 2007. He was not qualified for promotion based on a lack of the required civilian education, a baccalaureate degree. 4. His American Public University transcript and diploma show he was awarded a Bachelor of Arts degree on 31 December 2007. 5. In an advisory opinion, dated 6 April 2009, the Chief, Special Actions Branch, DA Promotions, Reserve Components, Human Resources Command – St. Louis, Missouri, stated that the applicant was considered but not selected by the "2008" Captain, RCSB. The Chief, DA Promotions cites that the applicant's nonselection was due to his records not reflecting completion of the required civilian education (Bachelor Degree) prior to the convening date of the board. The applicant's Bachelor of Arts Degree in Criminal Justice was conferred on 31 December 2007. The Chief, DA Promotions did not have the authority to waive the civilian education requirement and the applicant does not have a basis for an SSB without being granted a civilian education waiver. Therefore, the recommendation is that the Army Board for Correction of Military Records (ABCMR) grant the applicant a civilian education waiver for the 2007 Captain RCSB. 6. The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 2 July 2009, but he failed to respond. 7. Orders B-03-902304, dated 27 March 2009, show the applicant was promoted to captain, effective 24 February 2009. 8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes the policies and procedures for the promotion of Reserve and ARNG officers. This regulation specifies that promotion consideration/reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. 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 civilian and/or military schooling. 9. Army Regulation 135-155 further specifies that for a first lieutenant to be eligible for promotion to captain, the officer must be awarded a baccalaureate degree from an accredited educational institution prior to the convening date of the promotion board. This policy has been in effect since 30 September 1995. 10. Title 10, U.S. Code, section 12205 requires commissioned officers to obtain a baccalaureate degree prior to promotion to captain. It also provides that the Secretary of the Army may waive this requirement for any officer whose original appointment in the Army as a USAR officer was through the Army Officer Candidate School (OCS) program. “Any such waiver shall be made on a case-by-case basis, considering the individual circumstances of the officer involved, and may continue in effect for no more than two years after the waiver is granted. The Secretary concerned may provide for such a waiver to be effective before the date of the waiver, as appropriate in an individual case.” 11. Army Regulation 135-155 specifies that the Chief, Office of Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification and be received prior to the board convening date. The ABCMR has the authority to grant a waiver for the civilian education for a past year criteria. 12. On 15 October 2009, the DA Promotions, Reserve Components, Human Resources Command – St. Louis, Missouri, informed a Board staff member that they would accept a Board-directed waiver even for someone who was not an OCS graduate. DISCUSSION AND CONCLUSIONS: 1. Although the applicant does not provide a reason as to why he was unable to complete his baccalaureate degree, a review of his record shows that he was deployed in support of Operation Iraqi Freedom for 15 months, approximately 1 year prior to the convening date of the board. This could possibly account for the delay in completion of his degree. 2. Nevertheless, evidence of record shows the applicant completed the requirements for a Bachelor of Arts Degree in Criminal Justice and the degree was conferred on 31 December 2007. While Title 10, U.S. Code, section 12205 only mention educational waivers for OCS graduates, the ABCMR has the authority to grant the applicant a waiver for civilian education as an exception to policy. 3. Therefore, based on the applicant's deployment in support of Operation Iraqi Freedom, as a matter of equity, it would be appropriate to grant the applicant a waiver for civilian education as an exception to policy and promotion reconsideration to captain under the 2007 year criteria. 4. In view of the foregoing, the applicant’s records should be corrected as recommended below. BOARD VOTE: ____x____ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL 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 to show the applicant was granted a waiver of the civilian education and consideration for promotion to captain under the 2007 year criteria. 2. Following administrative implementation of the foregoing, the applicant's records should be submitted to a duly constituted SSB for promotion reconsideration to captain under the 2007 year criteria. 3. If selected, his records should be further corrected by showing he was promoted to captain on his date of eligibility, as determined by appropriate Departmental officials, using the 2007 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion. As a result of the promotion his pay record should be audited and he should receive all back pay and entitlements. _______ _ __x_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090003599 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090003599 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1