RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      27 October 2005
      DOCKET NUMBER:  AR20050002346


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, a civilian education waiver,
promotion reconsideration to captain by a special selection board (SSB),
and reinstatement in an active Reserve status.

2.  The applicant states that his chain of command did not afford him the
opportunity to apply for a civilian education waiver (with an effective
date prior to November 2003) due to their ignorance of the law and/or false
information which led to his non-selection and forced retirement.  He
inquired in 2002 during his active duty service and again during his 2003
mobilization if an education waiver was available.  The results of each
inquiry were that there were no available waivers for civilian education.
The National Defense Authorization Act of 2002 (Title 10, United States
Code (USC), section 12205(d)) afforded him the opportunity to apply for a
civilian education waiver prior to his second promotion board.

3.  The applicant provides copies of his DD Form's 214 (Certificate of
Release or Discharge from Active Duty) and electronic-mail (email)
correspondence from the Reserve Component Advisor, Defense Activity for Non-
Traditional Education Support, and the Chief, Promotion and Notification
Branch.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
Florida Army National Guard (FLARNG) as a second lieutenant effective 17
August 1996 from the FLARNG Officer Candidate School (OCS), with prior
enlisted service.  He was promoted to first lieutenant effective 19 August
1998.

2.  He was mobilized in support of Operation Noble Eagle and Enduring
Freedom effective 1 March 2002 and released from active duty (REFRAD)
effective 31 May 2002.

3.  He was considered and not selected for promotion to captain by the 2002
Reserve Components Selection Board (RCSB), which convened on 4 November
2002.  He was not qualified for promotion based on the lack of the required
civilian education, a baccalaureate degree.

4.  He was mobilized in support of Operation Noble Eagle and Enduring
Freedom effective 15 March 2003 and released from active duty (REFRAD)
effective 14 September 2003.  His DD Form 214, Block 12h (Effective Date of
Pay Grade) shows 1998/09/19 as his promotion date for first lieutenant.
5.  On 17 July 2003, the applicant emailed the Reserve Component Advisor,
Defense Activity for Non-Traditional Education Support, concerning
education requirements for deployed/mobilized troops in the Reserve/ARNG.
On 18 July 2003, he advised the applicant that the response from the Army
Reserve Personnel Command stated that there were no exceptions for civilian
education.  This was statutory/law.  For military education an officer can
request a waiver per Army Regulation 135-155, paragraph 2-15b.  If an
officer is mobilized after the second passover removal no later than 7
months does not apply, the new removal date becomes 90 days after
demobilization.  The correspondence also stated that if the applicant was
mobilized, he did have some extended time to complete the degree, if he
could accomplish it during mobilization.  If the applicant was ARNG he
would have to go through his state ARNG personnel office to get a read on
this.

6.  On 4 August 2003, the applicant advised the Reserve Component Advisor,
that he was a mobilized first lieutenant and an Army OCS graduate who had
not finished his degree.  On 5 August 2003, the Chief, Promotion and
Notification Branch, advised the Reserve Component Advisor, that the
Secretary of the Army (SA) may waive the civilian education requirement,
provided the applicant was an OCS graduate rather than a State OCS
graduate.  There were no provisions in law or regulation that would allow
that office to remove the applicant's name from the consideration list if
the applicant was in the zone of consideration.  The applicant may submit a
request to the Commander, Total Army Personnel Command, Office of
Promotions, Reserve Components, St. Louis, Missouri.  Waivers are made on a
case by case basis; therefore, complete justification was required.

7.  He was considered and not selected for promotion to captain by the 2003
RCSB which convened on 3 November 2003.  He was not qualified for promotion
based on the lack of the required civilian education, a baccalaureate
degree.

8.  He was issued a Notification of Promotion Status memorandum, dated
8 April 2004, advising him of his second non-selection.

9.  He was awarded a Bachelor of Science Degree on 14 April 2004.

10.  He was discharged from the FLARNG effective 1 October 2004, based on
his non-selections for promotion.  He was transferred to the United States
Army Reserve (USAR) Control Group (Retired (RET).

11.  In an advisory opinion, dated 14 June 2005, the Chief, Personnel
Division, Departments of the Army and Air Force, National Guard Bureau
(NGB), stated that on 17 April 2003, the applicant received a memorandum
from the Human Resource Command (HRC) (formerly TAPC) – St. Louis,
Promotions and Notification Branch, for non-selection for promotion to
captain, due to the civilian education requirement.  The applicant sent an
e-mail to the Reserve Component Advisor on 17 July 2003, inquiring if there
was any waiver for civilian education and received a response stating that
there were no exceptions for civilian education, due to that requirement
was statutory/law.  On 4 August 2003, the applicant sent another email to
HRC – St. Louis requesting more time to finish his degree and asked how he
could avoid being boarded in order to finish his degree.  The applicant was
advised that a waiver was required for civilian education, sent by the
FLARNG.  The HRC sent a memorandum to the applicant, dated 8 April 2004,
second time non-select for promotion to captain, due to civilian education
requirement.  The memorandum also stated that the established removal date
from the ARNG be no later than 1 October 2004.  The applicant completed his
baccalaureate degree on 16 April 2004.  The NGB issued orders, dated
30 September 2004, transferring the applicant to the USAR/RET and
withdrawing Federal Recognition.

12.  The opinion also stated, in effect, the policies and procedures of NGB
Regulation 600-100, chapter 9, paragraph 9-7c and d; Army Regulation 135-
155, chapter 2, paragraph 2-9; and Title 10, United States Code (USC),
Chapter 1205, paragraph (d)(3).  The NGB, Personnel Division and Personnel
Policy and Readiness Division, recommended that The Adjutant General
request a waiver of the civilian education requirement for promotion to
captain for the applicant, due to his periods of mobilization in 2002 and
2003, which were distracters for the applicant to complete this
requirement.  It was also recommended that the applicant's records be
forwarded to a SSB for promotion reconsideration to captain under the 2004
promotion criteria, and if selected, that the FLARNG amend his retirement
separation rank for first lieutenant to captain.

13.  The opinion was forwarded to the applicant for acknowledgement or
rebuttal on 21 June and he concurred on 4 July 2005.  The applicant also
stated that he would like to be transferred back to an active Reserve
status.

14.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve and ARNG officers.  This regulation specifies that a
first lieutenant on the Reserve Active Status List who has failed of
selection for promotion to captain for the second time and whose name is
not on a list of officers recommended for promotion to captain will be
removed from active status no later than 7 months after the final approval
authority approves the board report which considered the officer for the
second time.  The authority for the removal of a name from a promotion list
rests with the President for commissioned officers unless the officer has
been selected by a SSB.  When it is determined an officer may be ineligible
for promotion or promotion consideration, the SA may request that the
President approve administrative deletion of the officer's name from the
promotion board report or the promotion list.

15.  Army Regulation 135-155 also specifies that promotion reconsideration
by a SSB may only be based on erroneous non-consideration 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 non-
selection 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 non-selection, except where an individual
is not qualified due to non-completion of required civilian and/or military
schooling.

16.  Army Regulation 135-155 further specifies that for a first lieutenant
to be eligible for promotion to captain, the officer must be awarded a
baccalaureate degree from an accredited educational institution prior to
the convening date of the promotion board.  This policy has been in effect
since 30 September 1995.

17.  The National Defense Authorization Act for Fiscal Year 2002, Section
512, specifies that the SA, may on a case-by-case basis, waive the
baccalaureate degree requirement of Title 10, USC, Section 12205(a) for any
officer who was commissioned through the Army OCS.  The waiver may be in
effect for no more than 2 years after the waiver is granted.  Upon
completion of the baccalaureate degree, officers must provide documented
proof to their branch assignment officer.  Documented proof of a
baccalaureate degree must be an official transcript.  Officers who have not
earned a baccalaureate degree at the end of the period for which the waiver
was granted are subject to discharge.  The new waiver authority has no
expiration date and is now codified as 10 USC 12205(d). Because the SA has
not specifically denied "the Army OCS program" as used in Title 10, USC,
Section 12205(d)(1) to exclude ARNG OCS programs, individuals officers who
graduated from ARNG OCS programs may request and the SA may grant a waiver
to the baccalaureate degree requirement on a case-by-case basis.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the advisory opinion rendered in this case and in view
of the circumstances, the applicant is entitled to deletion of his first
non-selection for promotion to captain by the 2002 RCSB.  As a matter of
equity in this case, the applicant's 2002 non-selection should be voided
and of no force or effect based on the circumstances of his inquiry of a
waiver for the 2003 RCSB.  With removal of his 2002 non-selection, his 2003
non-selection becomes his first non-selection and separation of the
applicant is not required.

2.  It is also noted that the applicant was working on completing a
baccalaureate degree when he was mobilized in March 2002 and again in March
2003.  He requested information on how to obtain a civilian education
waiver in July 2003 and was erroneously advised that there were no civilian
education waivers.  In August 2003, he was advised that a waiver was
required for civilian education, sent by the FLARNG.  Waivers were granted
on a case-by-case basis, considering the individual circumstances of the
officer involved.  Therefore, based on his circumstances and mobilizations,
the applicant was entitled to a civilian education waiver prior to his
consideration by the 2003 RCSB.

3.  It is concluded that it would be unjust to deny the applicant removal
of his first non-selection, a civilian education waiver, and promotion
reconsideration based on his non-selection for promotion to captain by the
2003 RCSB.  The applicant graduated from an ARNG OCS program and was
entitled to request and the SA was authorized to grant a waiver of the
civilian education requirement.  Therefore, it would be appropriate to
correct the applicant’s records to show his 2002 non-selection is void and
of no force or effect, that he be granted a civilian education waiver for
promotion to captain, and should now be reconsidered under the 2003
criteria.

4.  It is also noted that the applicant is entitled to correction to his DD
Form 214, dated 14 September 2003, Block 12h to show 1998/08/19, for his
effective date of pay grade for first lieutenant.

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

BOARD VOTE:

__ALR     _MM_____  __LDS__  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 State of Florida and Department of the Army records of the
individual concerned be corrected by deleting his 2002 non-selection for
promotion to captain thereby allowing the applicant to return to an active
Reserve status and by granting a waiver for the civilian education
requirement for promotion to captain under the 2003 criteria.

2.  That, following administrative implementation of the foregoing, his
records be submitted to a duly constituted SSB for promotion
reconsideration to captain under the 2003 criteria.

3.  That, if selected, his records be further corrected by showing he was
promoted to captain on his date of eligibility therefore with entitlement
to back pay and allowances, as determined by appropriate Departmental
officials using the 2003 criteria, provided he was otherwise qualified and
met all other prerequisites for promotion.

4.  That if selected for promotion and based on his separation, his records
be further corrected to show:

      a.  that his transfer to the Retired Reserve, as applicable, is void,
and of no force or effect, that he was credited with qualifying service for
Reserve retirement for his respective retirement years, from the dates of
his now-voided transfer to the Retired Reserve to the date of his return to
the active Reserve;

      b.  that an adequate explanation be placed in his official personnel
files to show that the gap in his officer evaluation reports, from the
dates of his now-voided transfer to the Retired Reserve to the date of
return to active Reserve status, was not caused by any fault on his part,
and to insure that he is not prejudiced thereby in the consideration of any
future personnel actions; and

      c.  that all documents related to his now-voided non-selection for
promotion by the 2003 RCSB, and his transfer be expunged from his official
military records.

5.  That if not selected, the applicant be so notified.


6.  That his DD Form, dated 14 September 2003, Block 12h (Effective Date of
Pay Grade) be corrected to show 1998/08/19.




                                  _    _Melvin H. Meyer____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002346                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/27                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PLUS)                             |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.05                                  |
|3.                      |131.10                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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