PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 November 2002
         DOCKET NUMBER: AR2002077001


         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. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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 his promotion non-selection be overturned and that he be promoted to captain/0-3 (CPT/0-3).

3. The applicant states, in effect, that the promotion non-selection decision made in his case, made by the 2000 Department of the Army (DA) Reserve Components (RC) CPT/0-3 Promotion Selection Board, be overturned. He states that he completed all the coursework required for his four year degree prior the convening date of the promotion board. However, the institution only officially confers degrees during specified times of the year, which in his case was two days after the 2000 board convened. He claims that the intent of requiring officers to obtain a four year degree revolves around ensuring that the officer has obtained the knowledge, skills, and abilities that can be gained only through the baccalaureate process. He states that completing the coursework gave him this expertise prior to the convening date of the promotion board, and as a result he met the intent of this requirement. He further indicates that his promotion should not have been denied simply because he lacked a piece of paper that now quietly hangs on a wall.

4. The applicant further states that the Army National Guard (ARNG) needs company grade officers and the separation of a qualified officer in this instance lacks common sense. He states that the tens of thousands of dollars spent to train him as a Field Artillery officer will be thrown away based on a technicality. He also states that this action does not pass the common sense test, especially given he had completed the course work necessary to meet the educational requirement prior to the convening date of the promotion board. As a result, he now respectfully requests that his non-selection be overturned and that he be promoted to CPT/0-3.

5. The applicant’s military records show that at the time of his application to this Board, he was still serving as a member of the Pennsylvania ARNG.

6. On 16 May 2000, the applicant was notified, in a memorandum from the Chief, Office of Promotions, RC, US Total Army Personnel Command (PERSCOM), St. Louis, Missouri, that he had been considered and not selected for promotion by the 1999 DA RC CPT Promotion Selection Board, which had convened on 9 November 1999.

7. On 10 October 2000, the applicant submitted a letter to the President of the 2000 DA RC CPT/0-3 Promotion Selection Board, in which he listed some of his significant accomplishments for the consideration of the promotion board. This included the fact that he had completed the coursework necessary to receive his Bachelor of Arts (BA) Degree and that his diploma would be issued shortly.

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8. On 18 October 2000, the Acting Registrar, Thomas Edison State College, Trenton, New Jersey, published a letter confirming that the applicant completed the coursework and satisfied the requirements necessary to receive a BA Degree in Liberal Studies, and that his degree would be conferred by the Board of Trustees on 15 November 2000.

9. A second letter from the Registrar, Thomas Edison State College, certifies that the applicant completed the academic requirements for his degree before October 2000, even though his degree was not officially conferred until
15 November 2000. It further explains that due to the school’s administrative policy, degrees are only conferred six times a year on the 15^th of January; March; May; July; September; and November. This policy was confirmed in a copy of the school policy that was enclosed with this letter.

10. On 26 April 2001, the applicant was notified, in a memorandum from the Chief, Office of Promotions, RC, PERSCOM, St. Louis, that he had be considered and not selected for promotion by the 2000 DA RC CPT/0-3 Promotion Selection Board, which had convened on 13 November 2000.

11. On 15 September 2001, the applicant submitted a request to the RC Promotions Branch, PERSCOM, St. Louis, asking for a review of his
non-selection for promotion. He based this request on the fact that he had completed the requirements for his BA Degree prior to the convening date of the promotion board, but based on the school’s policy, his degree was not officially conferred until a few days after the promotion board convened.

12. On 11 October 2001, the applicant’s request for a review of his promotion non-selection was denied in a memorandum from the Chief, Office of Promotions, RC, PERSCOM, St. Louis. It stated that a review had been conducted and it had been determined that the applicant had not been selected for promotion by the 1999 and 2000 DA RC Promotion Selection Boards due to his not meeting the required civilian education. In addition, it indicated that missing Officer Evaluation Report (OER) ending 31 August 1994 was not seen by the promotion boards.

13. The 11 October 2001, PERSCOM, St. Louis, memorandum also pointed out that the applicant had not received his BA Degree until 15 November 2000, two days after the convening date of the 2000 board, and that letters from college indicating completing of the academic requirements for the degree prior to the convening date of the promotion board was no longer considered valid proof of completion. Further, by law and regulation, an officer must meet the education requirement prior to the convening date of the promotion board, and since he was not educationally qualified, the missing OER was not a basis for reconsideration. Finally, promotion officials indicated that there no provisions for waiving the civilian education requirement.
14. In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Special Actions Branch, Office of Promotions, RC, PERSCOM, St. Louis. It recommends denial of the applicant’s request, and states that the applicant was considered for promotion by the 1999 and 2000 DA RC CPT/0-3 Promotion Selection Boards, and was not selected. It further states that the reasons for non-selection are usually unknown, but in this case, the applicant could not be selected for promotion based on the fact his record did not reflect that he had completed the required civilian education by the convening date of the boards.

15. The opinion also restates the basis for denial of the applicant’s promotion reconsideration that was outlined in the 11 October 2001 PERSCOM, St. Louis, letter denying the applicant promotion reconsideration. This included the fact that documents received from the college confirming completion of degree requirements were not considered valid proof that he completed the education requirement, that the missing OER alone was not a basis for reconsideration, and that officers were required to meet the education requirement prior to the convening date of the promotion board and there were no provisions for waiving this requirement.

16. The applicant was provided a copy of the PERSCOM, St. Louis, advisory opinion and he responded on 9 October 2002. He stated that the comment in the advisory opinion that indicates that he could not be selected because his records did not reflect completion of the education requirements by the convening date of the boards is incorrect. He claims that he did in fact complete all the requirements for his degree from an accredited institution nearly a month before the 2000 promotion board convened, and that he provided documentation to that effect in his promotion packet. He further states that the comment that letters from school officials are no longer valid proof of completion of the education requirement belies the nature of the documentation he provided. He claims that school officials provided a letter with a raised seal confirming that he had completed the requirements for the degree and that the degree would be conferred by the Board of Trustees.

17. The applicant further commented that the position taken by RC promotion officials that there are no provisions to waive the education requirement is simply not correct. He refers to Public Law 105-261, which he claims states that the Secretary of the Army may waive civilian education requirements if an officer was commissioned through Officer Candidate School prior to 17 October 1998, the enactment date of the law. He further cites section 512 of the National Defense Act of 2002, expands this waiver authority to encompass all Reserve and ARNG officers. Finally, he stated that the OER referred to in the opinion that was not seen by the board should have been in his records because it was accepted for filing in his Official Military Personnel File (OMPF), which can be confirmed by unit personnel records.
CONCLUSIONS:

1. The Board notes the applicant’s contention that his non-selection should be overturned and he should be promoted to CPT/0-3 because he had completed the requirements for his BA Degree in advance of the convening date of the
2000 DA RC CPT/0-3 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 BA Degree in Liberal Studies from Thomas Edison State College, in October 2000, which was in advance of the convening date of the 2000 DA RC CPT/0-3 Promotion Selection Board. Further, the degree in question was formally conferred upon the applicant only two days after the date the promotion board convened.

3. The Board takes special note of the fact that the applicant did in fact complete the promotion education requirement for promotion to CPT/0-3 prior to the convening date of the 2000 DA RC Promotion Selection Board, and that this fact was confirmed in an official letter provided by the school’s Registrar. Therefore, notwithstanding the recommendation of PERSCOM, St. Louis, RC promotion officials, the Board concludes that 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 as a result of a school policy that he could not control.

4. The Board does finds 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, given 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 by simply promoting him to CPT/0-3 at this time.

5. Instead, the Board finds that it would be appropriate to correct the applicant’s OMPF to show that he completed the requirements for his BA Degree prior to the convening date of the 2000 DA RC CPT/0-3 Promotion Selection Board, and to recommend that his corrected record, to include the missing OER referred to in the PERSCOM, St. Louis, advisory opinion, be placed before a Special Selection Board (SSB) for promotion reconsideration to CPT/0-3 under the criteria used by the 2000 DA RC CPT/0-3 Promotion Selection Board.

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6. The Board also finds that it would be appropriate to recommend that, if he is selected for promotion to CPT/0-3 by a SSB, all references to the applicant’s second non-selection for promotion be expunged from his record. Further, that his promotion effective date and date of rank to CPT/0-3 be established as the date he would have been promoted if he had been originally selected by the 2000 promotion board, and that he 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.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. correcting the OMPF of the individual concerned to show that he completed the requirements for his Bachelor of Arts Degree prior to the convening date of the 2000 DA RC CPT/0-3 Promotion Selection Board;

b. submitting his corrected OMPF to a duly constituted SSB for promotion consideration to CPT/0-3 under the criteria followed by the 2000 DA RC CPT/0-3 Promotion Selection Board; and

c. if selected the SSB, expunging his records of all references to his second non-selection for promotion, establishing his CPT/0-3 promotion effective date and date of rank as if he had been originally selected by the 2000 promotion board, and providing him 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:

__FNE__ _ _LE __ __ TL __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___ Fred N. Eichorn _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077001
SUFFIX
RECON
DATE BOARDED	2001/11/21
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. 310	131.0000
2.
3.
4.
5.
6.