RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 October 2004
      DOCKET NUMBER:  AR2004100669


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |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, that her records be corrected to
show
she was promoted to major (MAJ) based on the criteria established by the
2003 Department of the Army (DA) MAJ Reserve Component Selection Board
(RCSB).

2.  The applicant states, in effect, that she was prepared to complete the
necessary civilian education credits needed by end-of-course examinations
(CLEP) prior to the convening date of the 2003 RCSB.  However, she was
informed that her civilian education requirements were waived and was no
longer a factor in her promotion consideration.  As a result, she decided
to complete the civilian education requirement through traditional means
and completed the required courses in May 2003 and subsequently received
her degree on 18 July 2003.

3.  The applicant provides the following documents in support of her
application:  Promotion Reconsideration Denial Memorandum, Promotion
Reconsideration Request, Second Promotion Non-Selection Memorandum,
Commander’s Letter, Missing Documents Letter to the Board, College
Transcripts, Diploma and Excelsior College Cancellation of Credit by Exam
Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that while serving as a captain
(CPT)
in the USAR and assigned as the Assistant Professor of Military Science,
Hofstra University, Hempstead, New York, she was considered and not
selected for promotion by both the 2002 and 2003 DA MAJ RCSBs.

2.  The applicant provides a letter from Excelsior College, dated 7
February 2003, which confirms she registered to take CLEP tests to complete
her degree requirements.  In May 2003, she cancelled the tests.  She also
provides student grade reports from St. Thomas Aquinas College and Mount
St. Mary College for the Spring 2003 semester.  These reports confirm she
completed five courses totaling 24 semester hours.  Finally, she provides a
transcript and a diploma from Excelsior College, which confirms she was
awarded a Bachelor of Science (BS) degree on 18 July 2003.
3.  On 5 September 2003, the Professor of Military Science (PMS), Hofstra,
University, submitted a memorandum to the Commander, Army Reserve Personnel
Command (ARPERSCOM), St. Louis, Missouri, requesting that the applicant be
reconsidered for promotion to MAJ.  The PMS indicated the applicant had
been assigned to the detachment for the past five years and had been
instrumental in the reorganization and development of the Military Science
II (MS II) sophomore program.  The PMS further indicated that he and the
applicant had addressed her degree requirement for promotion and the
applicant was well on her way to accomplishing this goal.  However, the
applicant was misinformed regarding a waiver of the education requirement
for promotion by ARPERSCOM officials, which resulted in her non-selection
for promotion.

4.  The PMS also stated that the applicant was a valuable member of the
detachment and to the USAR and provided a shining example to the cadets.
He further stated the applicant was educationally, physically, and
leadership qualified to perform at levels of higher responsibility.  He
concluded by stating he fully supported the applicant’s promotion
reconsideration request.  He also requested that a Special Selection Board
(SSB) give the applicant’s record the utmost evaluation, which he believed
would result in the same determination he had made as her commander, that
she was fully qualified for promotion to MAJ.

5.  On 29 September 2003, the applicant submitted a request for promotion
reconsideration.  In this request, the applicant indicated that prior to
the convening date of the 2003 RCSB, she received a notice that
documentation confirming she completed the civilian education, a bachelor’s
degree, had to arrive prior to March 2003, in order to be considered by the
RCSB.  The applicant indicated that when she received this notification,
she was enrolled in a BS degree program at Excelsior College and had
completed over 90 percent of the requirements.  As a result of the
notification, she accelerated the program and scheduled CLEP examinations
to complete her credits by February 2003.

6.  The applicant further indicated that she contacted an ARPERSCOM
representative in February 2003 to confirm that additional documents she
had submitted for RCSB consideration had been posted to her Official
Military Personnel File (OMPF).  At this time, she was informed the
ARPERSCOM representative of her intent to complete the final credits for
her degree through CLEP examinations and that Excelsior College had agreed
to prepare a letter confirming she had completed the degree requirements.
She claims the ARPERSCOM representative informed her the civilian education
requirement had been waived in her case because her date of rank was prior
to October 1995.
7.  The applicant also indicated in her reconsideration request that as a
result of the information she received from ARPERSCOM, the immediacy of
attaining her final nine credit hours was removed and she decided to
complete the hours through traditional accelerated classroom courses that
could be completed by May 2003.  She further stated that she informed the
RCSB of her plans to complete her degree requirement.  Finally, she
outlined her progress and indicated that it was her understanding that she
had been granted a civilian education waiver and there was no intentional
failure to complete her degree in a timely manner on her part.  The
applicant included a copy of her college transcripts showing she completed
her civilian education degree requirement.

8.  On 3 October 2003, an HRC, St. Louis memorandum notified the applicant
that she would be retained in an active status until completion of 20 years
of qualifying service.  It further indicated that a computation of her
retirement points revealed she had completed 18 years of qualifying service
as of the retirement year ending (RYE) 27 March 2003.  As a result, she was
being retained in an active status until being credited with 20 qualifying
years or 1 November 2006, whichever is earlier.

9.  On 25 October 2003, the Chief Special Actions Branch, Office of
Promotions, Reserve Components (RC), Human Resources Command (HRC), St.
Louis, Missouri, responded to the applicant’s request for reconsideration.
This response indicated that a review of the applicant’s record revealed
that she had been considered and not selected for promotion to MAJ by the
2002 and 2003 RCSBs.  It further indicated that specific reasons for non-
selection are not usually known; however, in her case, she could not be
selected based on the fact that her 2002 and 2003 records did not reflect
she had completed the required civilian education by the convening date of
the RCSBs.  It further stated that there were no provisions to waive the
civilian education requirement and because she had not completed the
civilian education requirement until 18 July 2003, there was no basis for
her reconsideration by a SSB.  The applicant was advised that if she
believed her non-selection for promotion to MAJ was the result of some
error or injustice, she could apply to this Board.
10.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief Special Actions Branch, Office of Promotions,
RC, HRC,
St. Louis.  It indicated that in the applicant was considered for promotion
to MAJ by the 2002 and 2003 RCSBs and not recommended for promotion because
her record did not contain evidence that she had completed a Baccalaureate
Degree. This promotion official further indicated that the civilian
education requirement must have been completed prior to the convening date
of the RCSB and since the second RCSB recessed on 4 April 2003 and she did
not complete her degree until 12 June 2003, she would not have a basis for
her reconsideration by a SSB, Therefore, it was recommended that the
application be denied.

11.  However, the HRC advisory opinion also indicated that a clarification
regarding civilian education was received that indicated that an officer
promoted to CPT prior to 1 October 1995 does not require a Baccalaureate
Degree to be promoted to MAJ.  As a result, since the applicant was
promoted to CPT on 8 June 1995, she did not require a degree to be
promoted.  Therefore, her name was identified to be considered for
promotion to MAJ by a SSB that would recess on 6 August 2004 under the 2002
and 2003 RCSB criteria.

12.  On 24 March 2004, the applicant provided a response to the HRC
advisory opinion.  She comments that the HRC opinion clearly indicates she
was not required to have a degree based on her CPT date of rank.  As a
result, she clearly did not receive the proper promotion consideration for
selection to MAJ by either 2002 or 2003 RCSBs.  She states the HRC opinion
serves as the
prima facia evidence supporting her rebuttal.  She concludes by requesting
that the Board ensure her records are reviewed by a SSB and that if she is
selected for promotion, that the promotion effective date and date of rank
be established as if she were promoted under the original criteria and that
she be provided any back pay and allowances due as a result.

13.  On 16 April 2004, the HRC, St, Louis, Chief, Office of Promotions,
informed the applicant by letter that she had been scheduled for
consideration by a SSB under the 2002 criteria that was to convene on or
about 13 July 2004.  It further indicated that her SSB consideration was
based on Title 10 of the United States Code, section 12205b(4), which
provides an exception to the civilian education requirement for members
promoted to CPT prior to 1 October 1995.  However, her name was deleted
from SSB consideration based on a legal determination that the Army
regulation could be more stringent than the law.
14.  Title 10 of the United States Code, section 12205 (10 USC 12205)
provides the legal criteria for the appointment education requirement for
commissioned officers.  It provides a general policy that states that no
person may be appointed to a grade above the grade of first lieutenant in
the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade
above the grade of lieutenant (junior grade) in the Naval Reserve, or be
federally recognized in a grade above the grade of first lieutenant as a
member of the Army National Guard or Air National Guard, unless that person
has been awarded a baccalaureate degree by a qualifying educational
institution.  Paragraph B provides exceptions to this education criteria.
It specifically provides an exception to the education requirement that
allows for the appointment to or recognition in a higher grade of any
person who was appointed to, or federally recognized in, the grade of
captain or, in the case of the Navy, lieutenant before October 1, 1995.

15.  Army Regulation 135-155 prescribes policy and procedures for selecting
and promoting Reserve Component commissioned officers.  Paragraph 2-9
contains the civilian education requirement for promotion.  It states that
effective
1 October 1995, no person may be selected for promotion to the Reserve
grade of CPT 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.

16.  Paragraph 2-9b of the same regulation states that the baccalaureate
degrees required for Reserve promotion to MAJ or above, must be completed
not later than the day before the selection board convene date.  Paragraph
2-9b(1) provides that all commissioned officers not previously appointed to
or Federally recognized in the grade of CPT before 1 October 1995 must meet
the baccalaureate degree requirement; and paragraph 2-9b(2) states that all
commissioned officers initially appointed on or after 1 October 1987 must
possess a baccalaureate degree.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that she is provided an exception to the civilian
education requirement for promotion to MAJ by law was carefully considered
and found to have merit.
2.  The HRC decision to remove the applicant from SSB consideration was
based on a legal determination that the Army regulation could be more
stringent than the law.  This logic is sound when the governing law
provides the Department latitude in creating the implementing policy and
absent the specific exception granted in 10 USC 12205.

3.  There is broad latitude and discretionary authority provided to the
Department in establishing promotion criteria and policy.  However, given
the specificity of the civilian education exception granted to officers
appointed to the grade of CPT before 1 October 1995 by 10 USC 12205, which
is restated in the governing Army regulation, and absent any grant of
Secretarial discretion in this section of the law, it appears the intent of
this law was clearly to provide a blanket waiver of the civilian education
requirement to all officers in this category.

4.  In view of the facts of this case, it is concluded that it would be
appropriate to correct the applicant’s record to show that she was granted
an exception to the civilian education requirement for promotion to MAJ and
by placing her record before a SSB for promotion reconsideration to MAJ
under the criteria used by the 2002 and 2003 DA MAJ RCSBs.

BOARD VOTE:

_WTM __  _PMS ___  _PHM___  GRANT FULL RELIEF

________  ________  ________  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 relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing that the individual concerned was granted an exception
to the civilian education requirement for promotion to major, and by
submitting her corrected record to a duly constituted Special Selection
Board for promotion consideration to major under the criteria followed by
the 2002 and 2003 Department of the Army, Major, Reserve Components
Selection Boards.

2.  If selected for promotion by the Special Selection Board, the record of
the individual concerned should be corrected by expunging all references to
her
non-selection for promotion, by establishing her major promotion effective
date and date of rank as if she had been originally selected by either the
2002 or 2003 Reserve Components Selection Board, whichever is appropriate,
and by providing her all back pay and allowances due as a result.




            _WALTER T. MORRISON__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100669                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09/DD                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N./A                                    |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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