MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2003083424

         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
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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 board reconsideration to the rank of captain in the Oregon Army National Guard.

APPLICANT STATES: That his Official Military Personnel File (OMPF) was considered by the 2001 Reserve Components Selection Board (RCSB) for promotion to the rank of captain and that he was not properly notified in advance, as required by AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers). He contends that, had he known, he could have made arrangements to complete his Baccalaureate in Arts (BA) degree prior to the convening date of the board.

In support of his request, the applicant has submitted a copy of a memorandum he sent to the Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, in which he requests promotion reconsideration. In addition, he has submitted a copy of his college transcript, indicating that he has received a Bachelor of Arts (BA) Degree from the George Fox University and two letters of support from members of his chain of command.

EVIDENCE OF RECORD: The applicant's military records show he enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) for a period of six years on 30 August 1982. In November of 1982, the applicant enlisted in the Regular Army for two years. He was honorably separated from the Regular Army on 9 November 1984 in the rank of specialist four and returned to the Oregon Army National Guard where he attained the rank of sergeant before being commissioned a second lieutenant of infantry on 19 October 1993. The applicant received federal recognition and was promoted to first lieutenant in 1997.

The applicant was considered, and not selected, for promotion to captain by the 2000 RCSB, which convened on 13 November 2000. He was notified of this first nonselection by letter, dated 26 April 2001, from the Office of Promotions, Reserve Components, U.S. Total Army Personnel Command. This letter advised the applicant that his records indicated that he did not meet the required civilian education promotion to the rank of captain. The letter further advised the applicant that he would again be considered, if still eligible, for promotion by the 2001 RCSB. On 12 November the 2001 RCSB convened and again, the applicant was found to be not qualified for promotion based on lack of the required civilian education, a BA degree As a result of his second nonselection for promotion to the rank of captain, he was separated from the Oregon Army National Guard on 25 September 2002.

On 12 September 2002, the applicant requested promotion reconsideration from the Office of Promotions, Reserve Components, U.S. Total Army Personnel Command. In his request, he stated that he had no prior notification that he was going to be considered and that he could have arranged to complete his BA degree before the 2001 RCSB convening date. He further stated that the completion date for the program he was enrolled in was 14 January 2002, that graduation was conducted on 4 May 2002 and that “final financial resolution with the University was on 10 June 2002.” The applicant’s transcript (copy) from George Fox University, Newberg, Oregon, shows that he completed the requirements for a BA degree and graduated on 10 June 2002.

The applicant received three DA Form 67-9, Officer Evaluation Reports (OER) covering the period June 1998 through February 2000. Those OERs contain a total of five separate comments in the narrative sections of the rating and senior rating officials, advising the applicant that he should complete his civilian educational requirements as soon as possible.

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 (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 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 on 1 October 1996. Under ROPMA, in order to be qualified for promotion to captain, an individual must have completed 5 years of time in rank as a first lieutenant (previously 4 years prior to the ROPMA), an officer basic course, and a BA degree on or before the convening date of the respective promotion boards. Individuals will receive mandatory promotion consideration prior to their Maximum Time in Rank (MTIG) date so that, if selected, they may be promoted on their future MTIG date. Public Law 105-261, Section 516 granted authority for a temporary waiver of a BA degree requirement for promotion to captain for certain Army Reserve officers. The law specifies that the Secretary of the Army may waive the BA degree requirement of any officer commissioned through the OCS before 17 October 1998. Any such waiver shall be made on a case-by-case basis, considering the individual circumstances of the officer involved, and may continue in effect for no more than 2 years after the waiver is granted. A waiver under this section may not be granted after 30 September 2000.

In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Section, Office of Promotions, Reserve Components. In that opinion it was stated that a review of the applicant’s records revealed that he was considered by the 2000 and 2001 RCSBs and not selected. The reasons for non-selection are usually unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board. However, in this case, the applicant could not be selected because his 2000 and 2001 records did not reflect completion of the required civilian education (BA degree) by the convening date of the boards.

Also stated in the advisory opinion was that there are no provisions to waive the civilian education requirement. In accordance with Title 10, United States Code, Section 12205 and Army Regulation 135-155, an officer must meet the required educational requirements prior to the convening date of the promotion board. Since the applicant was not educationally qualified, he has no basis for an SSB. It was recommended that his request for consideration by a SSB be denied.

The opinion was forwarded to the applicant for rebuttal/acknowledgement on 3 March 2003. The applicant did not respond to the opinion.

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 promotion reconsideration to captain. The Board does not dispute the applicant’s admirable record of service; however, he has not shown error, injustice, or inequity for the relief he now requests.

2. The Board noted the applicant’s contention that he was not notified that his OMPF would be considered by the 2001 RCSB for promotion to the rank of captain. The Board also noted the recommendations of the applicant’s chain of command, attesting to his qualities, character traits, and excellent record of service. However, evidence of record shows that as early as 1998, the applicant was advised of the need to complete his civilian education in order to remain competitive with his peers and to insure that he was not overlooked for future assignments and promotions.

3. The requirement for a BA degree has existed since 1 October 1996 for Reserve appointment and promotion; however, the applicant did not complete his degree program until June of 2002. Implicit in the Army’s promotion system is the universally accepted principle that officers have a responsibility for their own careers. The general requirements and workings of the system are widely known and specific details such as selection board dates, eligibility requirements and promotion zones are widely published in official and quasi-official publications and official communications. Given that the applicant became a first lieutenant in 1997, he knew, or should have known that he must complete his BA degree prior to the convening dates of either the 2000 or 2001 promotion boards.

4. Pertinent promotion policy provided for education waivers on a case-by-case basis until 30 September 2000. The Board notes the applicant did not apply for an education waiver, and that he requested promotion reconsideration on 12 September 2002, when it was too late. While the Board is empathetic, the applicant’s request shall not be approved after the expiration date of the statutory waiver authority. Pertinent law clearly specifies that a waiver may not be granted after 30 September 2000.

5. The Board also notes the education requirement pertains to all officers and all officers are considered for promotion to captain under equal standards. All lieutenants, as in the applicant’s case, were required to have completed their degrees prior to promotion board convening dates, or face non-selection.

6. 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.

7. 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

___jea___ ____rvo _ ____lmb_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083424
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030814
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.