RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 March 2004
      DOCKET NUMBER:   AR2003091294


      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. Robert J. McGowan             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Samuel A. Crumpler            |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Barbara J. Ellis              |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his date of rank (DOR) for promotion to
Captain be adjusted from 1 October 2002 to 1 July 2002.

2.  The applicant states that he was in a baccalaureate degree completion
program at the time he was selected for promotion to Captain and given a
promotion eligibility date of 1 July 2002.  A requirement for promotion to
Captain is completion of a baccalaureate degree.  He did not complete his
degree by his promotion eligibility date and was not promoted at that time.

3.  The applicant further states that degree completion had been a waivable
promotion requirement at one time, but he was told that the waiver had
expired when he inquired about it.  The National Defense Authorization Act
for Fiscal Year 2002 reinstated the waiver, but the applicant did not find
out about it until after he was promoted on 1 October 2002.

4.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for 6 years on 1 August
1990.  Through a series of reenlistments, he rose to the rank of Staff
Sergeant.  He was selected to attend Officer Candidate School (OCS).

2.  The applicant completed OCS and, on 16 December 1998, he was appointed
a Reserve commissioned officer with the rank of Second Lieutenant, Corps of
Engineers.

3.  The applicant, as a First Lieutenant, entered the full-time degree
completion program on 1 June 2001 at Empire State College, Black River, New
York.  He successfully completed the program and was awarded his
baccalaureate degree on 27 October 2002.

4.  The applicant was considered and selected for promotion to the rank of
Captain by the Fiscal Year 2002 (FY02), Captain, Army Promotion Selection
Board that recessed on 21 November 2001.  His promotion eligibility date
was established as 1 July 2002.

5.  Because he did not yet have a baccalaureate degree, the applicant was
not promoted on 1 July 2002.  When he provided proof that he had completed
all requirements for his Bachelor of Science degree, he was promoted to
Captain effective 1 October 2002 with a date of rank of 1 October 2002.

6.  Title 10, United States Code, section 12205(a), 1 October 1995,
requires officers to have a baccalaureate degree for promotion to Captain.
An exception to this requirement was provided in section 12205(d) which
stated, "The Secretary of the Army may waive the applicability of section
12205(a) of title 10, United States Code, to any officer who before the
date of the enactment of [the National Defense Authorization Act FY99]
(Oct. 17, 1998) was commissioned through the Army Officer Candidate School.
 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.  Expiration of
Authority. - A waiver under this section may not be granted after September
30, 2000."

7.  The National Defense Authorization Act FY02 provided that: ''Subsection
(d) of section 12205 of title 10, United States Code, as added by
subsection (a), shall apply with respect to officers appointed before, on,
or after the date of the enactment of this Act (Dec. 28, 2001)."  Thus
Congress reinstated the waiver for OCS-commissioned officers appointed
"before, on, or after 28 December 2001.

8.  In the processing of this case, an advisory opinion was obtained from
the Promotions Branch, US Total Army Personnel Command (PERSCOM) which
states, in essence, that there was no waiver authority in effect at the
time of the applicant's promotion eligibility to Captain.  The opinion
recommends denial of the applicant's request.  The opinion does, however,
state that, based on the provisions of the National Defense Authorization
Act FY02, PERSCOM resumed accepting waiver requests in March 2003.

9.  The applicant was provided a copy of the PERSCOM advisory opinion and
chose to rebut it.  In effect, he stated that he attempted to obtain a
waiver in September 2001, even before the Captain promotion list came out.
He was correctly told that the waiver authority had expired.  He then
points out that Congress reinstated the waiver authority for all officers
appointed "before, on, or after the date of the enactment [of the National
Defense Authorization Act FY02]" which was 28 December 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was commissioned through Army OCS on 16 December 1998.
He did not have a baccalaureate degree.

2.  Possession of a baccalaureate degree is a requirement for promotion to
Captain.  Congress, however, provided that the Secretary of the Army could
waive that requirement for OCS graduates on a case-by-case basis.  That
waiver authority expired on 30 September 2000.

3.  The applicant was accepted into the full-time degree completion
program, in 2001, was making excellent progress toward obtaining his
baccalaureate degree. In September 2001, he sought to obtain a waiver for
promotion to Captain without a baccalaureate degree, but was told the
authority had expired.

4.  Congress enacted legislation to reestablish Secretarial waiver
authority effective 28 December 2001.  The PERSCOM did not begin accepting
waiver requests under this legislation until March 2003.  The applicant's
promotion eligibility date was 1 July 2002.  He was not allowed to seek a
waiver and his promotion was delayed until 1 October 2002.

5.  It would appear that the intent of Congress was to allow officers like
the applicant to continue to apply for educational requirement waivers and
the PERSCOM Promotion Branch is once again accepting such waiver requests.
It is unjust and inequitable for the applicant to have been denied the
opportunity to apply for a waiver simply because the Army waited more than
1 year to implement the intent of Congress.

6.  In view of the foregoing findings and conclusions, and in the interest
of justice and equity, it would be appropriate to correct the applicant’s
records as indicated below.

BOARD VOTE:

__sac___  __slp___  __bje___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  Showing that he made application for an educational waiver under
Title 10, US Code, section 12205(d);

      b.  Showing that his request was accepted and granted;

      c.  Adjusting his date of rank and effective date for promotion to
Captain to 1 July 2002; and

      d.  By paying to the individual concerned all additional pay and
allowances to which he may be entitled based on this correction.




                 Samuel A. Crumpler
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091294                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040309                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0200                                |
|2.                      |112.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |