IN THE CASE OF: BOARD DATE: 14 APRIL 2009 DOCKET NUMBER: AR20090001997 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, in effect, a civilian educational waiver and promotion consideration to captain (CPT) by a special selection board (SSB). 2. The applicant states, in effect, that on 7 December 2008 his promotion packet went before a Department of the Army (DA) board and he was a non-select for promotion to captain due to his packet not containing a civilian educational waiver request. He argues that if the request had been in his packet, he would have been considered favorably for promotion to the grade of CPT. 3. The applicant provides two letters from Excelsior College, a memorandum requesting a waiver of Civilian Education Requirements, transcripts from Excelsior College, and a copy of an Officer Candidate School Diploma in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he initially enlisted into the Air Force, and entered active duty on 19 July 1985. He served for 1 year, 7 months, and 29 days until being honorably separated on 31 August 1985. 2. On 1 June 2002, the applicant was appointed into the Maryland Army National Guard (MDARNG) as a second lieutenant through Officer Candidate School (OCS). 3. The applicant was promoted to first lieutenant on 10 August 2004. 4. The applicant completed his Bachelor of Science degree in Liberal Arts from Excelsior College. A review of the applicant's college transcript shows he was enrolled from 24 April 2007 through 28 December 2008 and a degree was conferred on 20 February 2009. 5. On 16 March 2009, the applicant was notified that he had been considered but not selected for promotion to CPT by the Army Reserve Components Selection Board (RCSB) which had convened on 4 November 2008. He was informed that as a result of this being his second non-selection, he must be discharged in accordance with Title 10 of the United States Code, Section 14513 (10 USC 14513), by his established removal date which was no later than 1 October 2009, unless eligible for transfer to the Retired Reserve. 6. In processing this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, VA who indicates that the applicant was not selected for promotion by the fiscal year (FY) 2008 CPT Army RCSB because he did not meet educational requirements. The recommendation was to grant the applicant a civilian educational waiver and consideration by an SSB for CPT under the FY 2008 promotion criteria. 7. On 16 March 2009, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal. On 17 March 2009, the applicant concurred with the advisory opinion. 8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR. Paragraph 2-9 stipulates, in pertinent part, 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 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 for the purposes of meeting officer educational requirements. This regulation also specifies that in order to be promoted to CPT an individual must have completed a minimum of 2 years as a 1LT or a maximum of 5 years of time in grade. 9. Army Regulation 135-155 specifies that promotion 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. 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 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 military schooling. 10. The National Defense Authorization Act for FY 2002 added section 12205(d) to Title 10, U.S. Code, which states “this section authorized the Secretary of the Army to waive the requirement to have a baccalaureate degree prior to promotion to CPT for any officer who was commissioned through the Army Officer Candidate School (OCS). The waiver would be made on a case-by-case basis and may continue in effect for no more than 2 years after the waiver is granted. 11. The Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, dated 29 May 2003, delegated to the Office of the Deputy Chief of Staff, G-1 the authority to grant waivers of educational requirements for any Reserve Component officer whose original appointment in the Army as a Reserve officer was through the Army OCS program. The waiver would be made on a case-by-case basis and would be granted only to those officers who demonstrated substantial progress towards completion of degree requirements. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his civilian educational waiver should be reconsidered for promotion to captain was carefully considered and found to have merit. 2. The evidence of record confirms that the applicant was completing all academic requirements necessary to receive a baccalaureate degree from Excelsior College, in advance of the convening date of the 2008 RCSB. However, the formal awarding of this degree was delayed and conferred on 20 February 2009. It appears the applicant met all other requirements for promotion and had the applicant requested a waiver, that such waiver may have been granted. 3. In view of the circumstances in this case the applicant should be granted a waiver for the civilian educational requirements for promotion to CPT and consideration for promotion to CPT by an SSB under the 2008 criteria. BOARD VOTE: ___X_____ ____X____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 by: a. showing he was granted a civilian educational waiver for promotion to CPT and his records should be submitted to a duly constituted SSB for promotion consideration to CPT under the 2008 criteria. b. that if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion. c. that if not selected, the applicant be so notified. _________XXX________________ 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) AR20090001997 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001997 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1