RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 August 2005
      DOCKET NUMBER:  AR20040009866


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      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, in effect, promotion reconsideration to
captain.

2.  The applicant states he was mobilized in February 2003, while he was
attending his last class for completion of his civilian degree.  He was not
able to get his degree until December 2003; however, the promotion board
convened in November 2003.

3.  The applicant provides his academic transcript.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Regular Army, U. S. Army
Reserve (USAR), and the Army National Guard (ARNG), the applicant was
commissioned after completing Officer Candidate School and accepted
appointment as a second lieutenant in the ARNG on 19 September 1996.  He
was promoted to first lieutenant on 25 January 1999.

2.  On 9 February 2003, the applicant separated from the ARNG and
transferred to a troop program unit (TPU) in the USAR.  He was ordered to
active duty on   10 February 2003 in support of Operation Enduring
Freedom/Iraqi Freedom.

3.  On 17 April 2003, the applicant was notified he was considered but not
selected for promotion to captain because his records indicated he had not
completed the required civilian and/or military education by the day the
board convened.

4.  The applicant was considered but not selected for promotion to captain
by the board that convened in November 2003 apparently because his records
indicated he had not completed the required civilian and/or military
education by the day the board convened.

5.  The applicant departed the Iraqi theater of operations on or about 14
April 2004.  He was retained on active duty until 21 November 2004 to
voluntarily participate in the Reserve Component Medical Holdover Medical
Retention Processing Program.  Orders dated 14 June 2004 indicate the
applicant was discharged from the USAR effective 1 October 2004.  These
orders apparently should have been revoked as a DD Form 214 (Certificate of
Release or Discharge from Active Duty) show he was released from active
duty on             19 December 2004 and transferred to his USAR TPU.

6.  The applicant's academic transcript from Kansas State University shows
he completed his last course in the Spring term of 2003 and was awarded his
Bachelor of Science degree in December 2003.  On 11 August 2005, the school
registrar's office informed the Board analyst the applicant's last date of
attendance was Spring 2003.  Due to a delay until October 2003 in posting a
final grade, his degree was not awarded until December 2003.

7.  The applicant is currently on active duty in Iraq.

8.  In the processing of this case, an advisory opinion was obtained from
the Office of Promotions, Reserve Components, U. S. Army Human Resources
Command.  The advisory opinion noted the applicant was considered and not
selected for promotion by the 2002 and 2003 promotion boards.  His
baccalaureate degree was not conferred prior to the boards; therefore, he
was not educationally qualified for promotion.

9.  The advisory opinion also noted the applicant received a memorandum of
reprimand (MOR) based upon an incident that occurred in November 2003.
(The MOR is dated 5 April 2004.)  Based on the reprimand, that office
recommended disapproval of the applicant's request.  However, if the Board
granted him a waiver, he would have a basis for special selection board
(SSB) consideration under the 2003 criteria based on the waiver and his
Officer Evaluation Report (OER) ending 31 October 2002, which was not
reviewed by the promotion board.

10.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He responded by stating the charges outlined in the
MOR were false statements from an individual who left the country a month
earlier and emailed unfavorable information that was misleading and taken
out of context by the equal opportunity representative in Kuwait.  The
Soldier's credibility was not challenged and he became the scapegoat.  He
was given five days to defend his credibility and the fifth day was his
date of departure.

11.  The applicant provided four letters of support; two OERs for the
periods ending 10 February 2004 and 15 August 2002; and provided a
memorandum   for record indicating his unit had been mobilized since
February 2003 but he   had been in a non-ratable status as a medical hold
since December 2003 to     23 November 2004.

12.  Army Regulation 135-155 prescribes policy and procedures used in the
selection and promotion of commissioned officers of the Army National Guard
of the United States and of commissioned and warrant officers of the U. S.
Army Reserve.  Paragraph 2-9 states that, 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.  It also states 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, 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.

13.  Title 10, U. S. Code, section 12205 provides that no person may be
appointed to a grade above the grade of first lieutenant in the Army
Reserve or be federally recognized in a grade above the grade of first
lieutenant as a member of the Army National Guard unless that person has
been awarded a baccalaureate degree by a qualifying educational
institution.

CONCLUSIONS:

1.  Regulatory and statutory guidance is that, in order to be selected for
promotion to the Reserve grade of captain, a person must be awarded a
baccalaureate degree from an accredited institution not later than the day
before the selection board convene date.

2.  The applicant was considered for promotion to captain for the first
time in November 2002.  He had not completed his baccalaureate degree at
that time.

3.  The Kansas State University registrar's office confirmed the
applicant's last date of attendance was Spring 2003; however, due to a
delay until October 2003 in posting a final grade his degree was not
awarded until December 2003.

4.  The second promotion board convened in November 2003.  Although the
applicant was not awarded his baccalaureate degree until December 2003, he
had completed the requirements for the degree in the Spring of 2003 and,
with the posting of grades in October 2003, he became eligible for award of
his degree.  It was only because of the university's delay that he was not
awarded the degree prior to the convene date of the selection board.

5.  Notwithstanding the recommendation in the advisory opinion, the
applicant's MOR was not issued until May 2004, after the convening date of
the promotion board.  Even if the MOR was based on incidents which occurred
in November
2003, this MOR would not have been filed in his records for a promotion
board to
review in November 2003.  This Board will not substitute its judgment for
that of a promotion board which may or may not have recommended the
applicant for promotion despite having an MOR in his files.  As this
particular MOR was not in his files in November 2003, to use its existence
as a reason for denying his request for promotion reconsideration is not
valid.

6.  The applicant does not clarify if he desires promotion consideration
under both the 2002 and 2003 criteria; however, it would be equitable to
have his records considered by an SSB for promotion to captain only under
the 2003 criteria.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__mhm___  __jtm___  __jbg___ GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

     a.  showing he was awarded his baccalaureate degree on 1 November 2003
(but ceremoniously presented his degree in December 2003);

     b.  submitting his records to a duly constituted SSB under 2003
criteria for promotion reconsideration to captain;

     c.  if selected, his records be further corrected by showing he was
promoted to captain on his date of eligibility as determined by appropriate
officials provided he was otherwise qualified for promotion; and

     d.  if not selected, the applicant be so notified.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
promotion reconsideration under 2002 criteria




            __Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009866                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]