RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 NOVEMBER 2005
      DOCKET NUMBER:  AR20050001945


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 his date of rank to major be
adjusted from 6 January 2000 to 31 March 1995, and that his date of rank to
lieutenant colonel also be adjusted to 1 April 1999, as a result of the
adjustment in his major date of rank.

2.  The applicant states since March 1995, as a captain, he has been
assigned to positions authorized the rank of major and received exceptional
evaluation reports.

3.  He notes that Army Regulation 135-155, which he refers to as a
Department of the Army Pamphlet, indicates that the minimum time in grade
for promotion to the grade of major is 4 years.  He states based on this
requirement he would have been eligible for promotion to major in March
1995.  However, he states he was not considered for promotion by the Army
National Guard at that time because he did not have a baccalaureate degree
as required by National Guard Regulation 600-100.

4.  The applicant states he was selected for promotion by a mandatory
promotion board in September 1997, but noted he was not promoted because he
still did not have a baccalaureate degree.  He states he secured his degree
in December 1999.

5.  The applicant states the National Guard civilian education requirement
is regulatory and not statutory and notes, until recently, the National
Guard Bureau had been "very strong in up holding the civilian education
requirement" dictated in the National Guard Regulation.  He cites a 2004
National Guard Bureau newsletter in which he maintains it now appears the
National Guard Bureau has relaxed the educational requirement for promotion
to major.

6.  The applicant states that it is his opinion that when he was placed in
a major position as a captain it was evidence that he was best and fully
qualified to fulfill the position.  He maintains that if the National Guard
Bureau "would have ruled on this subject back in 1995 as they have now" he
would have been immediately promoted to major.  He states he feels that to
correct this injustice his date of rank to major should have been 31 March
1995 and then his date of rank to lieutenant colonel would have been 1
April 1999 when he would have reached the minimum time in grade as a major
to be promoted to lieutenant colonel.



7.  The applicant provides a copy of his Department of the Army Form 20
(Personnel Qualification Record), copies of assignment orders showing his
assignment to positions authorized a major, various performance evaluation
reports, documents associated with his selection for promotion to major by
the mandatory selection board and subsequent delay of that promotion,
documents associated with another officer selected for promotion to major
for which an education waiver was submitted, extracts from Army Regulation
135-155, a copy of the United States Code dealing with the education
requirement for promotion, and a copy of the 2004 National Guard Bureau
newsletter in which the applicant has highlighted the portion dealing with
requests for education waivers for promotion.

CONSIDERATION OF EVIDENCE:

1.  In March 1985, while serving as an enlisted Soldier in the New York
Army National Guard, the applicant applied for appointment as a Reserve
officer of the Army in the Army National Guard.  At the time he submitted
his request for appointment he indicated he was a high school graduate and
that he had been a member of the New York Army National Guard since 1979.
His request was approved and on 25 May 1985 he was appointed and executed
an oath of office as a second lieutenant in the Army National Guard.

2.  He was promoted to the grade of captain in September 1990.

3.  In September 1994 a member of the applicant's chain of command
requested authorization to assign the applicant to the position of the S-4,
a major position.  The request noted attempts to fill the position had not
been successful and the applicant, who was then serving as the assistant S-
4, had been successfully performing the job as the acting S-4 for the past
8 months.

4.  On 9 January 1995 the request was approved and on 31 March 1995 orders
were issued reassigning the applicant from the assistant S-4 position to
the S-4, a position authorized the grade of major.  In the January 1995
approval document it was noted that the applicant would "not go on the
control grade waiting list until he has meet the civilian education
requirements for promotion to major."

4.  A 6 June 1997 memorandum addressed to the Army National Guard Personnel
Center from the United States Total Army Personnel Command in St. Louis,
Missouri informed the National Guard Bureau that the applicant had been
selected for promotion to the grade of major under the provisions of Army
Regulation 135-155 and that the promotion effective date would be the later
of the following dates; 10 September 1997; the date Federal recognition is
extended in the higher grade; or the date following the date Federal
recognition is terminated in the current Reserve grade.  The memorandum
indicated the promotion selection board adjourned on 11 April 1997.

5.  According to documents provided by the applicant in response to an
advisory opinion, which were not included with his initial application to
the Board, he initiated a request on 7 October 1997 asking for an exception
to the National Guard Regulation requiring a baccalaureate degree for
promotion.  He noted in his request that there was no statutory requirement
for officers in the grade of captain or above on 1 October 1995, to have a
baccalaureate degree.  He stated the Army Reserve Components Selection
Board considered him fully qualified for promotion to major, that he held
an associates degree, was enrolled in college, and scheduled to receive his
baccalaureate degree in late December 1998.  He also noted he was currently
assigned to a position authorized the grade of major.

6.  The applicant's request for an exception to policy was endorsed by his
senior rater, but there is no indication the request went beyond his
immediate chain of command.  The applicant did state in his response to the
advisory opinion that his request was not pursued by his headquarters
because of recent dealings with the National Guard Bureau on the same issue
for another New York Army National Guard officer.  Rather, the applicant
was given the option of accepting a delay in his promotion and continuing
his assignment with the Army National Guard in his present grade of
captain, or accepting the promotion to major and be assigned to the United
States Army Reserve Control Group.  The applicant elected to have his
promotion delayed.

7.  Included with the applicant's petition to this Board was a copy of a
1997 petition relating to another officer who was seeking to have his
promotion to major recognized in spite of not having the required
baccalaureate degree.  That officer's petition, which was supported by
members of the officer's chain of command, was denied by the National Guard
Bureau in May 1997.  In denying the petition the National Guard Bureau
noted the education requirement established by National Guard Regulation
600-100 was non-waivable.

8.  According to a copy of the applicant's Nyack College transcript he
completed his baccalaureate degree on 30 November 1999 after having
enrolled in the college in September 1997.

9.  The applicant's effective date for promotion to major was 6 January
2000, the date his promotion to major was extended Federal recognition in
the Army National Guard.
10.  In March 2004 he was granted Federal recognition of his promotion to
lieutenant colonel.

11.  As noted previously, an advisory opinion was provided during the
processing of this application.  The National Guard Bureau, which provided
the opinion, recommended denial of the applicant's request to adjust his
date of rank for major and for lieutenant colonel.  The opinion
acknowledged the applicant was selected for promotion to major with an
effective date of 10 September 1997 but could not be promoted because he
did not have the baccalaureate degree required in accordance with National
Guard Regulation 600-100.  The opinion noted the regulatory policy was
established in 1994 in an effort to increase the education level of the
officer corps and to meet the future goals established by the Army's
leadership.

12.  The opinion noted the applicant signed a delay for his promotion to
major in February 1998 and completed the baccalaureate degree in December
1999.  It also acknowledged that the education requirement was not
statutory and that the State Adjutant General could submit a request to
promote an officer without a degree who was appointed after 30 September
1983 and had a date of rank to captain before 1 October 1995.  The
applicant was appointed in May 1985 and promoted to captain in 1990.  The
opinion noted, however, the applicant's leadership within the State did not
submit a request for a waiver of the regulatory education requirement.

13.  In response to the advisory opinion the applicant stated he did not
"request" a delay in his promotion.  Rather, he noted because he had more
than 10 years as a full-time Active Guard Reserves in the New York Army
National Guard at that time, he had very little options but to sign the
delay for promotion.  He states he was required to either delay the
promotion or take an assignment in the United States Army Reserve Control
Group, neither of which he wanted.  As noted in paragraph 5 above, the
applicant also indicated he did request a waiver but his chain command
chose not to pursue the waiver because an earlier waiver for an officer in
a similar situation had been denied.  The applicant noted the National
Guard Bureau's recommendation to deny his request may seem justifiable
today, however, "back during the time frame of 1995 through 1997 when I was
promoteable [sic], NGB [National Guard Bureau] was not accepting waivers
for civilian education for promotion to major."  With the exception of the
copy of his 1997 request for a waiver of the education requirement, the
remaining documents included with the applicant's response to the advisory
opinion had been included with his original application to the Board.


14.  National Guard Regulation 600-100, published on 15 November 1985,
noted:

      As a reflection of the Total Army, the demand for higher educated
      officers within the ARNG [Army National Guard] has escalated sharply
      in recent years, and promises to continue to do so.  A key factor is
      the steady rise in the educational level of the enlisted soldiers.
      Also, the equipment, training, and mission scenarios of the total Army
      are becoming more sophisticated.  As an integral part of the Total
      Army, the officer corps of the ARNG must keep pace with these changes
      if it is to meet the challenges of the future.

15.  The November 1985 regulation stated all Army National Guard officers
should obtain a baccalaureate degree regardless of when appointed.  It
states that officers who had obtained a baccalaureate degree were
encouraged to pursue a graduate program or specialized education related to
one of their military specialties.  Paragraph 8-11a(2) of the 1985
regulation stated all commissioned officers who received an initial
appointment after 30 September 1983 and who have no commissioned service
prior to that date must have a baccalaureate degree before promotion to
major.

16.  The November 1985 National Guard Regulation 600-100 was superseded by
the regulation published on 15 April 1994.  Paragraph 9-7a of the 1994
regulation stated essentially the same thing as previously stated in the
1985 regulation.  Paragraph 9-7b of the 1994 regulation stated that while
officers who held the rank of captain and above on 1 October 1995 had no
statutory requirement for a baccalaureate degree, they were required to
meet the regulatory educational requirements.  It also stated that waivers
are not authorized for civilian educational requirements.

17.  Both the November 1985 and the April 1994 National Guard Regulation
600-100 state that the promotion of officers in the Army National is a
function of the State.

18.  The February 2004 Army National Guard Newsletter, provided by the
applicant in support of his request, acknowledges that the requirement that
officers who received their initial appointment after 30 September 1983
have a degree in order to be promoted above the grade of captain is
regulatory and not statuary and states that if a State wishes to promote an
officer who does not have a degree, who was appointed after 30 September
1983 and has a date of rank to captain before 1 October 1995, the State can
submit a request for a waiver.  It notes this will eliminate the need for
the officer to transfer to the United States Army Reserve in order to be
promoted.  It states this does not mean that all officers who fall within
this category must be promoted.

DISCUSSION AND CONCLUSIONS:

1.  Although the advisory opinion indicates the regulatory policy for the
baccalaureate degree was established on 15 April 1994 (the date the current
regulation was published) in an effort to increase the education level of
the officer corps and to meet the future goals established by the Army's
leadership, in fact, the policy was in place in the 1985 regulation.

2.  The applicant was appointed in May 1985, just months before the
November 1985 National Guard Regulation 600-100 was published.  He did not
secure his baccalaureate degree until more than 14 years later.  The
applicant had ample warning regarding the National Guard Bureau's
regulatory requirement for their officers to hold a baccalaureate degree
before being promoted to major.  He knew the requirements and did not meet
those requirements and can not now argue that simply because waivers are
now being considered that he too should have been granted a waiver.
Whether the requirement was statutory or regulatory is not really at issue
when you consider the fact that promotion of Army National Guard officers
is a State requirement and all officers in the applicant's situation were
held to the same standard during the period in question.

3.  It is possible the decision by the National Guard Bureau to now
consider waivers which were previously not considered is a reaction to the
need to maintain readiness within its own force rather than lose officers
to the United States Army Reserve during these difficult recruiting and
retention years.  However, the fact that the National Guard Bureau may now
be willing to entertain requests from the State to waive that educational
requirement is not evidence of any error or injustice in the applicant's
case nor does the approval of such waivers 10 years after the applicant may
have initially been eligible for promotion to major create an injustice for
the applicant or any other officers who were denied promotion for not
meeting the regulatory education goals of the National Guard at that time.

4.  It is unfortunate the applicant's situation was such that when selected
for promotion he was unable to accept the promotion because transferring to
the United States Army Reserve would have meant losing his fulltime
position with the Army National Guard.  However, the situation was of the
applicant's own making and he should not now be able to argue that it was
unfair simply because policies in effect at the time have now changed or
been relaxed.
5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TP___  __EA ___  __JS  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____Thomas Pagan_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001945                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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