MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 April 2003
         DOCKET NUMBER: AR2002077965

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Terry L. Placek		Member
Mr. Robert Duecaster		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)

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APPLICANT REQUESTS: Reinstatement of her commission in the Army National Guard.

APPLICANT STATES: In effect, that her military education records were lost which prohibited her from receiving credit for her Liberal Arts Degree in Fall/Spring 1999. She contends that her Officer Evaluation Report (OER) for the period June 1998 through May 1999 was not completed to meet the OER suspense date and was not available on her microfiche. She states that she enrolled in the Thomas Edison Military Degree Completion program in 1998/1999 to meet the captain's board requirement; however, the college could not properly complete the assessment to award her the degree due to missing military education records. As a result, she continued to take courses in order to complete her degree. She further contends that the board would not accept the degree awarded to her in December 1999 because the date was after the board had convened. In conclusion, she contends that the promotion board rendered an unfair decision based on the facts presented.

In support of her application, she submitted a supplemental letter, a letter from the Vice Provost and Academic Dean of Thomas Edison State College, a letter from a Personnel Services Noncommissioned Officer of the New Jersey Army National Guard, an incomplete OER and her Bachelor of Arts Degree in Sociology from Caldwell College.

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

The applicant enlisted in the Army National Guard on 17 May 1983 for a period of six years. She successfully completed basic and advanced individual training and was awarded military occupational specialty 91E (dental specialist). She was discharged from the Army National Guard on 6 June 1991 in the rank of staff sergeant and accepted an appointment in the New York Army National Guard in the rank of second lieutenant.

She is currently serving in the Army National Guard in the rank of sergeant.

The applicant's records contain a NGB Form 62 (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States), dated 6 June 1991. Under item 2s (Schools) of this document, the applicant indicated that she had attended Ohio State University for one year in 1980 for Liberal Arts and did not earn a degree. She also indicated that she had attended Jersey City State College for one year in 1985 for Liberal Arts and did not earn a degree. In addition, she indicated that she had completed two and a half years at Caldwell College towards a degree in Sociology.

Records show the applicant was promoted to the rank of first lieutenant with a date of rank 6 June 1994.

Orders show the applicant was transferred from the New York Army National Guard to the New Jersey Army National Guard effective 21 May 1997.

The applicant's personnel records contain a copy of her transcript from Caldwell College, dated 26 August 1998. This transcript shows she had 42.00 transfer credits and a total of 106.00 credits earned towards her degree.

In a 4 May 1999 memorandum from the U.S. Total Army Personnel Command, the applicant was notified that she had been considered by a Department of the Army (DA) Reserve Components Mandatory Selection Board which convened on 9 November 1998. She was informed that she was not selected because she had not completed the required civilian and/or military education by the day the board convened.

There is no evidence available to the Board which shows that the applicant was awarded a baccalaureate degree prior to the convening date of the DA Reserve Components Mandatory Selection Board in November 1998.

In a 16 May 2000 memorandum from the U.S. Total Army Personnel Command, the applicant was notified that she was considered by a DA Reserve Components Selection Board which convened on 9 November 1999 and was not selected for promotion. As a result of this second nonselection, the applicant was informed that she must be discharged in accordance with Title 10, United States Code, Section 14513 or Army Regulation 140-10. Her established removal date was determined as 1 November 2000.

The applicant provided a copy of her diploma from Caldwell College which shows she was awarded a Bachelor of Arts Degree in Sociology on 6 August 2000.

Orders published by the Department of Military and Veterans Affairs of the State of New Jersey on 20 October 2000 separated the applicant from the Army National Guard effective 1 November 2000 and transferred her to the U.S. Army Reserve Control Group (Reinforcement).

Orders published by the Departments of the Army and the Air Force National Guard Bureau on 6 December 2000 withdrew the applicant's Federal Recognition in the Army National Guard and transferred her to the U.S. Army Reserve with an effective date of 1 November 2000.

In the processing of this case, a staff advisory opinion was obtained from the Chief of the Office of Reserve Components Promotions.

This opinion recommended denial of the applicant's request. The opinion points out that the applicant's records were considered by the 1998 and 1999 Captain Army Promotion List Department of the Army Reserve Components Selection Board and was not selected. This opinion also points out that the applicant could not be selected based on the fact that her 1998 and 1999 records did not reflect completion of the required civilian education by the convene date of the boards.

The Chief of the Office of Reserve Components Promotions stated that a request for a special selection board was denied by this office on January 18, 2001 and that the information received from the applicant reflected that she completed a Bachelor of Arts Degree on 6 August 2000 from Caldwell College. Additional information from Caldwell College dated 24 May 2000 certified that as of December 1999, all requirements for the Bachelor of Arts in Sociology would be completed and graduation would take place in August 2000. This opinion referenced Title 10, United States Code 12205 and Army Regulation 135-155, which states that an officer must meet the required education requirement prior to the convening date of the promotion boards and that there are no provisions to waive this requirement.

A copy of the advisory opinion was provided to the applicant by letter dated 2 December 2002, in order to allow her to submit comment or rebuttal; however, as of 11 April 2003, she has not submitted a response to the opinion.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through lieutenant colonel.

Paragraph 2-9 of Army Regulation 135-155 covers civilian education requirements. It states, in pertinent part, that effective 1 October 1995, no person may be selected for promotion to the Reserve grade of captain unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education or, within the three 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 purposes of meeting officer educational requirements.

Title 10, United States Code, Section 12205 states that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of lieutenant (junior grade) in the Naval Reserve, or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying education institution.

Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers subject policy and procedures and, in pertinent part, provides detailed procedures regarding removal of Army Reserve members from an active status. Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major and lieutenant colonel.

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

1. The applicant was appointed as a second lieutenant in the Army National Guard on 7 June 1991.

2. The applicant was promoted to the rank of first lieutenant effective 6 June 1994.

3. Records show she was not selected for promotion to captain by the DA Reserve Components Selection Boards which convened on 9 November 1998 and 9 November 1999.

4. There is no evidence of record which shows the applicant was awarded a baccalaureate degree prior to the convening dates of these selection boards. As a result, she did not meet the civilian education requirement for promotion to captain in accordance with the governing regulation.

5. Based on the applicant’s two non-selections to captain, the law required that she be removed from active status. As a result, she was discharged from the Army National Guard.

6. The Board considered the contentions submitted by the applicant. However, upon review of all the facts, the Board has determined that there is no material error or injustice that exists in this case. Therefore, there is no basis for reinstating her commission in the Army National Guard.

7. 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.

8. 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

RVO_____ TLP_____ RD______ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077965
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030424
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR. CHUN
ISSUES 1.	102.0900
2.
3.
4.
5.
6.