PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002073055


         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. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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.

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2. The applicant requests, in effect, that he be promoted to captain/0-3.

3. The applicant states, in effect, that he was considered by the Department of the Army (DA) Reserve Component (RC) captain (CPT) promotion selection board that convened on 10 November 1999, and was not selected because he failed to meet the education requirement. He claims that he completed all the necessary requirements for his degree in August 1999, and ordinarily the Regents College conferred degrees on a monthly basis. He does not know the reason that the conferring of his degree was delayed until November 1999. He claims that he was informed by officials at his higher headquarters that a letter from the school confirming that he had completed the requirements for his degree before the selection board convened should be sufficient. He contends that it is his belief that he did his part to complete the education requirement prior to the convening date of the selection board, and the fact that the degree was not conferred until 10 days after the selection board convened was beyond his control. He also indicates that State personnel officials attempted to have his records placed before a Special Selection Board (SSB) for promotion reconsideration, but they were advised that he should pursue relief by applying to this Board.

4. The applicant’s military records show that he is a member of the Iowa Army National Guard (ARNG). The applicant’s records were placed before the 1999 DA RC CPT promotion selection board, which convened on 9 November 1999. However, he was not selected for promotion.

5. The applicant provides a letter from an Academic Advisor at Regents College, Albany, New York, dated 10 July 2002. It confirms that the applicant satisfied the requirements of the Bachelor of Science degree in Liberal Arts through Regents College on 27 September 1999. This was the date he submitted his final paperwork for the degree. His degree was conferred on 19 November 1999 due to processing of records. The advisor also indicated that it generally took 6 to
12 weeks from the date the last transcript is received until the date of conferral.

6. The applicant also provides a copy of a Regents College transcript that confirms that his degree was conferred on 19 November 1999; however, it also shows that he completed his last requirement for the degree in August 1999.

7. On 22 June 2000, the applicant submitted a request for a SSB. He stated that the reason he was making the request was that even though he completed the degree requirements for a baccalaureate degree prior to the date the 1999
DA RC CPT promotion selection board convened, his degree was not formally conferred until 19 November 2000.

8. On 23 June 2000, the applicant’s battalion commander, a lieutenant colonel, provided a memorandum supporting the applicant’s request for promotion reconsideration by a SSB. The battalion commander indicated that the applicant was one of the top three officers of the 15 that were sent to the promotion board from the Iowa ARNG. The battalion commander further indicated that the applicant performed impeccably as a company commander and indicated that the applicant’s potential to make great strides in the officer corps was unlimited.

9. On 15 July 2000, the applicant’s brigade commander, a colonel, submitted a memorandum supporting the applicant’s request for a SSB. It indicated that the applicant was at the very top of all the lieutenants in the brigade and simply had to be retained. He further indicated that the applicant’s outstanding performance as a company commander made him a leading candidate for future field grade officer positions in the command. The brigade commander further commented that it was clear to him that the only reasoning for his non-selection for promotion was the inability of the promotion board members to see his college diploma. But, in fact the applicant had worked very hard to complete the civilian education requirement before the selection board convened and that the only reason a copy of the degree was not available to the promotion board was the administrative processing time required by the conferring institution. He concluded by indicating that it would truly be a tragedy to lose a young officer of the applicant’s talent, given the difficulty in finding the right talent to lead their units.

10. On 26 July 2000, The Adjutant General (TAG) of the Iowa National Guard submitted a memorandum in support of the applicant’s request for a SSB. He requested that the applicant be provided the opportunity to appear before a SSB. He stated that this was the first time he requested any such action, and he strongly believed that the request was justified. He confirmed that of the
15 officers of the Iowa ARNG that were originally considered for promotion, the applicant was number one on the State Order of Merit List, and all of those officers that met the minimum eligibility requirement for promotion were selected. He further indicated that it was his belief that the applicant was not selected because he had not completed his baccalaureate degree. However, the applicant had completed all the course requirements for the degree on
27 September 1999. This was well in advance of the convening date of the promotion board, but his degree was not conferred until 19 November 1999 due to the institution not processing his final requirements in a timely manner. He also stated that there is no doubt that the applicant is among the best first lieutenants in the Iowa ARNG, and worked diligently on his bachelor’s degree for many years. He completed the degree requirements before the convening date of the promotion board, so he should be provided with the opportunity to be considered for promotion by the SSB.

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11. In connection with the processing of this case, an advisory opinion was requested and received from RC promotion officials of the U.S. Total Army Personnel Command (PERSCOM), St. Louis, Missouri, dated 11 July 2002. It indicated that when the applicant’s file was considered by the 1999 DA RC selection board, he was not educationally qualified. He completed the requirements for the degree prior to the 9 November 1999, convening date of the promotion board; however, the degree was not awarded until 15 December 2001. In accordance with the governing regulation, to be considered educationally qualified, the degree must be awarded prior to the convening date of the board that is considering the officer for promotion. It further indicates that the applicant could write to the institution that conferred the degree to get them to change the date the degree was conferred or that this Board could grant the applicant a waiver of the date the degree was conferred, which would provide the applicant a basis for consideration by a SSB under the 1999 criteria. However, the recommendation of this official is that the Board deny the applicant’s request.

12. The applicant was provided a copy of the PERSCOM advisory opinion and submitted a rebuttal, dated 13 September 2002. It states that he believes that he exerted every effort to complete his education requirements for promotion to include driving over an hour to attend classes for an entire semester, taking classes at night and on weekends while working full time. He commanded a unit authorized 150 personnel, a position that required much energy and time. His family sacrificed much while he was trying to do the best he could to be a professional solider. He asserted that he had no control over when the college formally conferred his degree. He concludes that he still has a very promising future serving his community, his State, and the Army, and all he asks is that the facts of the case be reviewed to determine if he completed the education requirements for his degree prior to the convening date of the promotion board.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he should be promoted to CPT because he had completed the requirements for his degree in advance of the convening date of the 1999 DA RC CPT promotion selection board, and therefore, he met the education requirement for promotion.

2. The evidence of record confirms that the applicant completed the requirements necessary to receive a Bachelor of Science degree in Liberal Arts through the Regents College on 27 September 1999, well in advance of the convening date of the 1999 promotion board. Further, the degree in question was formally conferred upon the applicant only 10 days after the selection board convened on 9 November 1999.

3. The Board takes special note of the fact that the applicant did in fact complete the promotion education requirement for promotion to CPT prior to the convening date of the promotion board. This coupled with the fact that his entire chain of command, up to and including the State TAG, all provided strong statements of support for the applicant’s promotion reconsideration. Thus, notwithstanding the recommendation of PERSCOM RC promotion officials, the Board concludes 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 promotion board.

4. The Board does find it likely that only reason the applicant was not selected for promotion was his failure to meet the education requirements. However, this cannot be specifically established from the available evidence. Promotion Selection Boards are not required to publish the specific reasons for the
non-selection of officers for promotion. Therefore, there may have been other reasons for his not being promoted. As a result, the Board elects not to grant the relief requested by the applicant and simply promote him to CPT at this time.

5. Instead, the Board finds that it would be appropriate to correct the applicant’s Official Military Personnel File (OMPF) to show that he completed the requirements for his degree prior to the convening date of the 1999 DA RC CPT promotion selection board, and to recommend that his corrected record be placed before a SSB for promotion reconsideration to CPT under the criteria used by the 1999 DA RC promotion selection board.

6. The Board also finds that it would be appropriate to recommend that, if he is selected for promotion to CPT by a SSB, the applicant’s promotion effective date and date of rank should be established as the date he would have been promoted if he had been originally selected by the 1999 promotion board, and he should be provided all back pay and allowances due as a result.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by correcting the OMPF of the individual concerned to show that he completed the requirements for his bachelor’s degree prior to the convening date of the 1999 DA RC CPT promotion selection board; by submitting the corrected record to a duly constituted SSB for promotion consideration to CPT under the criteria followed by the 1999 DA RC promotion selection board; and in the event he is selected for promotion, that his promotion effective date and date of rank be established as if he had been originally selected by the 1999 promotion board, and he be provided all back pay and allowances due as a result.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__AAO__ __KWL__ __DPH__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Arthur A. Omartian___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073055
SUFFIX
RECON
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.