MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2002080028

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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: That one non-selection for promotion to captain be voided and he be reconsidered for promotion

APPLICANT STATES: That he was a distance-learning student at City University in the Fall of 1992. He was advised by the Department of Education in 1996 that all distance-learning students would no longer be funded for this program. When he was unable to obtain funding for his bachelor degree, he was passed over twice for promotion to captain. He was later accepted into an Adult Degree Program and graduated with a degree on 14 July 2002. In support of his application he submits copies of a letter from the Department of Education dated 9 May 2001, his acceptance letter into the Adult Degree Program dated 5 September 2002 and his diploma.

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

He was appointed in the Idaho Army National Guard (IDARNG) as a second lieutenant effective 30 June 1990. He was promoted to first lieutenant effective 29 June 1993.

On 5 June 1995 he was transferred to the USAR Control Group (Reinforcement).

On his officer evaluation reports (OER) for the periods ending 15 January and 30 September 1997, his rater commented that the applicant needed to complete his civilian education to make promotion to captain possible and to further his military career.

He was considered and not selected for promotion to captain by the 1997 and 1998 Reserve Components Selection Boards (RCSB’s). He was not qualified for promotion based on the lack of the required civilian education, a baccalaureate (BA) degree.

On his OER for the period ending 31 May 1999, his senior rater commented that when the applicant finished his civilian education he should be promoted to captain and given additional challenges.

In 2000, he contacted the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) and requested promotion consideration by a special selection board (SSB) under 1997 and 1998 criteria.

On 29 March 2000, the Deputy Chief, Office of Promotions, Reserve Components, PERSCOM, advised the applicant that if a degree is received from



a non-accredited institution, it may be accepted if it is recognized by three accredited instructions. The documentation submitted by the applicant shows only one institution had accepted his degree; therefore, he had no basis for consideration by an SSB under 1997 or 1998 criteria.

He was awarded his BA degree effective 14 July 2002.

The Chief, Special Actions Branch, Office of Promotions, PERSCOM, expressed the opinion that the officer was considered for promotion to captain by the 1997 and 1998 promotion boards and not recommended because he had not completed a BA degree from an accredited college. The officer previously contacted that office requesting an SSB because he had completed his degree; however, the college that awarded his degree was not accredited. Therefore, his request for an SSB was denied. Based on this information, it was recommended that his request be denied.

The opinion was forwarded to the applicant for rebuttal/acknowledgement on 27 January 2003. In his rebuttal dated 24 February 2003, he states that the advisory opinion was based on his first degree earned that was non-accredited. The Army has failed to contact the student financial assistance case management division North-West-Seattle, Washington. He also states that he has contacted his Congressional representative regarding denial of his student financial aid. He feels hat he may have been a victim of discrimination and wrongfully discharged from college and the Army and the Army has made a judgment based on information from a mandatory promotion board.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by an SSB 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 captain or above, must be completed not later that the day before the selection board convening 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 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 captain, an individual must have completed 7 years of time in grade combined as a second and first lieutenant, an officer basic 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 removal of his non-selection for promotion to captain and promotion consideration by an SSB. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board notes the applicant’s contentions that funding prevented him from completing his degree prior to his promotion consideration and he later completed his degree from an accredited institution. However, based on the fact that the applicant had not completed his civilian education by the convening date of the 1997 and 1998 promotion boards, he is not entitled to promotion reconsideration to captain under either criteria. The requirement for a BA degree from an accredited institution is a long-standing requirement for Reserve appointment on or after 1987.

3. The Board also notes that given the applicant was promoted to first lieutenant in June 1993 and that to qualify for promotion to captain, he must have completed a BA degree from an accredited institution on or before the convening date of the respective promotion boards. The applicant knew, or should have known, that a promotion board would consider him as early as 1997. 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. 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.






5. 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

_ELP____ _JIP____ __RVO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080028
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.05
3.
4.
5.
6.