PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 July 2003
         DOCKET NUMBER: AR2003087567


         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas E. O'Shaughnessy, Jr.		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, a military education waiver and promotion reconsideration to captain.

3. The applicant states that he was passed over for the education requirement on his 2001 captain board and disallowed a special selection board (SSB), despite being educationally qualified at the time of the board. He also states that his college conferral date was 16 November 2001, which was 3 days after the convening date for the 2001 board. A letter showing that he was educationally qualified is with his original promotion packet. He is requesting reconsideration for promotion, as he was educationally qualified. In support of his application he submits a letter from the Academic Advisor, Excelsior College

4. The applicant’s military records show that he was commissioned in the Regular Army as a second lieutenant effective 13 April 1995 and promoted to first lieutenant effective 12 April 1997.

5. He was separated from active duty effective 26 December 1997, as a result of his non-selection for promotion, and he was transferred to the USAR Control Group, Individual Ready Reserve (IRR).

6. The applicant was considered and not selected for promotion to captain by the 2000 and 2001 Reserve Components Selection Board (RCSB’s), which convened on 13 November 2000 and 13 November 2001, respectively. He was not qualified for promotion based on the lack of the required civilian education, a baccalaureate (BA) degree.

7. In a letter dated 3 February 2003, the Academic Advisor, Excelsior College confirmed that the applicant had completed all of his academic requirements and was fully educationally qualified for received his Bachelor of Science (BS) Degree as of October 2001. He further stated that the only reason the applicant did not receive his degree until 16 November 2001, was that this was the next available conferral date available based on the school’s administrative policy.

8. The Chief, Special Actions Branch, Office of Promotions, Total Army Personnel Command (PERSCOM), St. Louis, Missouri, expressed the opinion that when the applicant was not considered qualified for promotion at the time he was considered by the 2001 RCSB because he did not meet the civilian education requirement. By regulation, in order to be educationally qualified for promotion to captain, an individual must possess a BA degree prior to the day the RCSB convenes. The applicant completed all requirements for his BA degree in October 2001; however, his degree was not conferred until




16 November 2001, after the board convened. Based on the fact the degree was conferred after the board the applicant does not have a basis for an SSB consideration.

9. In his advisory opinion, this PERSCOM St Louis official also stated that this Board has the authority to grant a waiver or exception to policy for the date the degree was conferred, and since the applicant completed all requirements prior to the board, it was recommended that he be granted a waiver for the education. He further stated that if this Board ruled in the applicant’s favor, his case should be returned to the PERSCOM St. Louis promotion office for special board action. In view of the facts presented, he recommended that the applicant be granted this waiver and granted special board consideration. The opinion was forwarded to the applicant for rebuttal/acknowledgement on 30 May 2003, and he concurred with its contents on 4 June 2003.

10. 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 record 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 military schooling.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he should be reconsidered for promotion to captain because he had completed the requirements for his BS degree prior to 12 November 2001, the convening date of the 2001 captain RCSB. And it finds this claim has merit.

2. The evidence of record confirms that the applicant completed all academic requirements necessary to receive BS degree from Excelsior College in October 2001, which was in advance of the convening date of the 2001 RCSB. However, the formal awarding of this degree was delayed due to the administrative policies of Excelsior College, which did not allow for conferral of the degree until 16 November 2001, which was after the date the RCSB convened.



3. 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 2001 promotion board given he had completed all the academic requirements for a BS degree prior to the convening date of the 2001 RCSB. Thus, it concluded that it would be appropriate to correct the applicant’s records to show he was educationally qualified for promotion prior to the convening date of the 2001 captain’s RCSB.

4. 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 showing that the individual concerned completed the requirements for his Bachelor of Science Degree prior to the convening date of the 2001 captain Reserve Components Selection Board.

2. That, following administrative implementation of the foregoing, his records be submitted to duly constituted SSB’s for promotion reconsideration under 2002 criteria.

3. That, if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

4. That if selected for promotion and the applicant was separated, his records be further corrected to show:

         a. that his discharge, as applicable, is void, and of no force or effect, that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge to the date of his return to the Ready Reserve;

         b. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge to the date of return to Ready Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         c. that all documents related to his now-voided non-selection for promotion, and his discharge be expunged from his official military records.


5. That if not selected, the applicant be so notified.

BOARD VOTE:

_WTM___ __TEO__ _MKP___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Margareg K. Patterson
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087567
SUFFIX
RECON
DATE BOARDED	20030729
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.01
2.	131.10
3.
4.
5.
6.