MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 May 2003
         DOCKET NUMBER: AR2002079801

         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Roger W. Able		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: Promotion reconsideration to major.

APPLICANT STATES: In effect, that he was not selected for promotion to major due to the lack of civilian education. His Bachelor of Arts degree was awarded on 22 March 2002. He completed work on his degree in late 2001; however, due to extended absence (vacation) of his professor, his final exam was not graded until the beginning of the new quarter. Therefore, university officials would not grant his degree until the end of the winter quarter – which was 3 weeks after the convening date of the board. He also states that his credits and grade were not registered with the university until 15 January 2002 and he was considered a winter 2002 graduate with a conferment date of 22 March 2002. Had he known in advance of this administrative burden, he would have requested that another professor in the department review his final exam so that it could be graded and the credits posted prior to the end of the fall quarter. In support of his application he submits his official transcript and a copy of his degree.

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

He was appointed in the Reserve as a second lieutenant effective 10 June 1989.

He was promoted to first lieutenant effective 9 June 1992 and to captain effective 22 May 1996. Based on the required 7 years time in grade, his maximum time in grade (MTIG) date for promotion to major was 21 May 2003.

He was considered and not selected for promotion to major by the 2002 Reserve Components Selection Board, which convened on 2 March and recessed on 3 April 2002. He was not qualified for promotion based on the lack of the required civilian education, a baccalaureate (BA) degree.

His transcript from the University of Washington, shows “Degree Earned 22 March 2002.”

The Chief, Special Actions Branch, Office of Promotions, Total Army Personnel Command, expressed the opinion that a review of the applicant’s records revealed it was considered by the 2002 major RSCB and non-selected. The applicant was not selected due to the fact he had not met the civilian education requirement, a BA degree. The applicant’s BA degree was awarded on 22 March 2002, after the convening date of the board, even though all course requirements were completed as of 2 January 2002. Letters from the college indicating completion of the academic requirements for the degree prior to the conferred date are no longer valid proof of completion. In accordance with Title




10, United States Code, 12205 and Army Regulation 135-155, an officer must have the degree awarded prior to the convening date of the promotion board in order to meet the educational requirement. It was recommended that the application be denied.

The opinion was forwarded to the applicant for rebuttal/acknowledgement on 20 December 2002. He did not respond.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error, which existed in the records 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 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 education.

The regulation further specifies that BA degrees required for Reserve promotion to major or above, must be completed not later that the day before the selection board convened date and all commissioned officers initially appointed on or after 1 October 1987 must posses a BA degree from an accredited institution recognized by the United States Secretary of Education.

The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern the management of Reserve Component officers. The law was implemented 1 October 1996. The ROPMA provides that in order to be qualified for promotion to major, an individual must have completed 7 years of time in grade as a captain, an officer advanced course, and a BA degree on or before the convening date of the respective promotion boards.





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. In view of the circumstances in this case, the applicant is not entitled to an educational waiver and promotion reconsideration to major. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board notes the applicant’s contentions that he completed work on his degree in late 2001 and due to extended absence (vacation) of his professor, his final exam was not graded until the beginning of the new quarter. However, based on the fact that the applicant had not completed his civilian education by the convening date of the 2002 promotion board, he was not qualified for promotion without the BA degree, and he is also not entitled to promotion reconsideration to major under the 2002 criteria. The requirement for a BA degree is a long-standing requirement for Reserve appointment on or after 1987 and promotion to major.

3. The Board also notes that given the applicant was promoted to captain in May 1996 and that to qualify for promotion to major, he must have completed a BA degree on or before the convening date of the respective promotion boards, the applicant knew, or should have known, that he would be considered by a promotion board as early as 2002. The applicant needed to insure, well in advance, that his record would present his career and qualifications to that board in the best possible light.

4. Pertinent promotion policy provided for education waivers for promotion to captain on a case-by-case basis until 30 September 2000. The Board notes that no provisions are provided for education waivers for promotion to major. While the Board is empathetic, the applicant has no basis for consideration by a special selection board.

5. 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.

6. 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

_TSK____ _LF____ _MKP___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079801
SUFFIX
RECON
DATE BOARDED	20030513
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.11
3.
4.
5.
6.