PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 October 2003
         DOCKET NUMBER: AR2003087572


         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
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz		Member
Mr. Larry C. Bergquist		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, promotion reconsideration for promotion to major in the Reserve Components.

3. The applicant states, in effect, that it is his belief that he was non-selected for promotion to major based on the erroneous conclusion that he had not complied with the education requirements for promotion set forth in Army Regulation (AR) 135-155.

4. In support of his request, the applicant submitted a copy of those documents listed in the Table of Contents included as part of his appeal.

5. The applicant's records show that he was appointed a second lieutenant on 1 October 1988 and was promoted to the rank of captain on 12 January 1994.

6. The applicant was considered and was non-selected for promotion by the 2000 and 2001, Department of the Army (DA) Reserve Components Major, Selection Board, that convened on 6 April 2000 and 6 March 2001, respectively.

7. The applicant was notified of his nonselection for promotion to major in a memorandum from the Chief, Office of Promotions, Reserve Components, on 26 July 2001. He was advised that since this was his second nonselection for promotion to major, he was required to be discharged in accordance with Title 10, US Code Section 14513 and AR 140-10, unless he was eligible for, and requested transfer to the Retired Reserve. The reason for his nonselection was not given in this memorandum.

8. The applicant appealed his nonselection for promotion to major on 22 August 2001. In his appeal, he states that the reason cited was that he did not meet the civilian education criteria. He added that the Military Advisor at Excelsior College had "Faxed" a memorandum to the majors' promotion selection board on 1 March 2001 and notified the board that he [he applicant] had completed all requirements for award of a Bachelor of Science Degree and that the degree would be conferred on him in April 2001.

9. On 16 November 2001 the applicant received a reply to his appeal. In this reply, he was advised that he had been nonselected for promotion because he had not met the civilian education requirement, a baccalaureate degree, and in addition, two missing officer evaluation reports (OERs) (OERs with ending dates of 31 May 1999 and 7 January 2000) were not seen by the boards.

10. In the above referenced memorandum, the Chief, Office of Promotions, Reserve Components, added that his [the applicant's] "baccalaureate degree

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was awarded on 20 April 2001, even though all course requirements were completed as indicated in the 1 March 2001 letter from Excelsior College. 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, US Code 12205 and Army Regulation 135-155, an officer must meet the required education requirements prior to the convening date of the promotion board. Since you were not educationally qualified, the missing officer evaluation reports are not a basis for reconsideration alone."

11. The OER declared to have been missing from the applicant's record are in their sequentially correct place in the Performance Data Section of the applicant's Official Military Personnel File. The OER with a through date of 31 May 1999 was processed [the senior rater profile was added] on 1 November 1999. The OER with a through date of 7 January 2000 was processed on 5 May 2000.

12. On 16 July 2002, the applicant submitted a rebuttal to the reply to his appeal. In his rebuttal, the applicant conjectured that he was exempt from the mandate in Section 12205(a) because he was appointed to the rank of captain before 1 October 1995. He added that, nonetheless, by the time the promotion selection board had convened, he had completed all requirements for his Bachelor of Science degree and was due to be awarded the degree in April 2001. He ended by saying that he was compliant with the requirement of Title 10, Section 12205 and was entitled to a review of the board's decision.

13. The Chief, Special Actions Branch, Office of Promotions, Reserve Components, provided an advisory opinion to this Board. In his advisory opinion, the Chief, Special Actions Branch, stated, ". . . . in his case, he could not be selected based on the fact that his 2000 and 2001 records did not reflect completion of the required civilian education (Bachelor's Degree) and two missing officer evaluation reports were not seen by the board." He continued by stating that, "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 meet the required educational requirement prior to the convening date of the promotion selection board. There are no provisions to waive the civilian education requirement. Since the applicant did not meet the education requirement till after the boards, the missing officer evaluation reports are not a basis for reconsideration alone, this office denied his request for a basis for a special selection board."

14. The applicant was provided a copy of the advisory opinion for his information and comments. The applicant, through his counsel, responded with a rebuttal to the advisory opinion on 21 June 2003.

15. In his rebuttal, the applicant describes the circumstances surrounding two of his OERs not being seen by the promotion selection board and how he had been assured that they had been provided to the promotion selection board. The applicant argues that he is educationally compliant with the provisions of law and was improperly denied promotion. The applicant bases his conclusion on the provision of National Guard Regulation 600-100, chapter 9, paragraph 9-7, that states, "Officers who hold the rank of captain and above on 1 October 1995 have no statutory requirement for a baccalaureate degree. However, they are required to meet regulatory educational requirements in Table 9-1."

16. AR 135-155 provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR). This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.

17. According to the above regulation, 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 convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education or, within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense (DOD) for purposes of meeting officer educational requirements.

18. AR 135-155 specifies that a baccalaureate degree is required for Reserve promotion to major or above, and the degree must be completed not later than the day before the selection board convene date.

19. The same regulation prescribes the policies and procedures for promotion reconsideration by a standby promotion advisory board. Standby consideration may only be based on erroneous nonconsideration 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 nonselection 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 nonselection, except if an individual is not qualified for noncompletion of required military or civilian schooling.

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20. Excelsior College (formerly known as Regents College) is an accredited institution recognized by the Middle States Association of Colleges and Schools. The Middle States Association of Colleges and Schools is recognized by the U.S. Department of Education.

CONCLUSIONS:

1. The applicant was considered for promotion by the 2000 and 2001 DA Reserve Components Major, Selection Board, and was not selected based on his not having completed the required civilian education, a baccalaureate degree.

2. He was nonselected for promotion by the promotion selection board that convened on 6 March 2001. As a result of his second nonselection, he was notified that he was required to be discharged unless he was eligible for and requested transfer to the Retired Reserve.

3. The applicant was notified that, in addition to not meeting the education requirement for promotion to major, two OERs were missing from his record and were not seen by the boards.

4. Because the two OERs were missing from his file, through no fault of his own, the applicant was placed at a substantially greater disadvantage for promotion consideration than if the only disqualification was not meeting the education qualification for promotion.

5. The evidence of record shows the applicant completed all requirements for his baccalaureate degree on 1 March 2001, five days before the convening date of the DA Reserve Components Major Selection Board.

6. The Military Advisor of Excelsior University notified the promotion board that all degree requirements had been met and that the degree would be conferred in April 2001.

7. The applicant was nonselected for promotion based on the erroneous assumption that he did not meet the educational requirement for promotion to major.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all Department of the Army records related to this case be corrected by submitting the records of the individual concerned to a duly constituted special selection board as deemed appropriate for promotion consideration for major under FY 2001 criteria.

2. If selected for promotion to major:

a. further correcting his records to show that he was promoted to the next higher grade on his date of eligibility;

         b. voiding his discharge as a commissioned officer as being of no force or effect;

c. awarding him qualifying service creditable towards a Reserve retirement from the date of his now-voided discharge to the date of his return to service as a Reserve as an officer and with any back pay due;

         d. placing an adequate explanation in his official military 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 service as a was not due to any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         e. expunging all documents related to his now-voided non-selection for promotion, and his discharge, if applicable, from his official military personnel records.

3. That if not selected for promotion to major under FY 2001 criteria, that the applicant be so notified.

BOARD VOTE:

__el ____ ___lb ___ __clg ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Curtis L. Greenway____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087572
SUFFIX
RECON
DATE BOARDED	2003/10/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 320	131.1000
3.
4.
5.
6.