RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      22 November 2005
      DOCKET NUMBER:  AR20050004718


      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. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |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, a civilian education waiver and
promotion reconsideration to captain by a special selection board (SSB).

2.  The applicant states that due to his deployment to Kuwait/Iraq in
support of Operation Iraqi Freedom for 13 months, he was unable to complete
his civilian education within the time allocated.  If he had not been
deployed he would have graduated on 20 August 2004, in time for the 2004
promotion selection board.  He completed his civilian education on 20
August 2005.

3.  The applicant provides copies of his mobilization orders; his officer
evaluation report for the period 8 March 2002 through 7 March 2003; his
Bachelor of General Studies diploma; his Louisiana Tech University
Bachelor of General Studies Degree Plan; memorandums of support from the
Commander, 165th Quartermaster Battalion, Bossier City, Louisiana (LA);
and a Request for Civilian Education Waiver memorandum from his command
(165th Quartermaster Battalion).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
United States Army Reserve from the Reserve Officer's Training Corps (ROTC)
as a second lieutenant effective 24 May 1997.

2.  He was appointed in the Alabama Army National Guard (ALARNG) as a
second lieutenant effective 25 September 1997.  He was promoted to first
lieutenant effective 30 May 1999.

3.  He was separated from the ALARNG effective 31 May 1999 and transferred
to the United States Army Reserve (USAR) Control Group Individual Ready
Reserve.

4.  He was appointed in the LAARNG as a second lieutenant effective 8 March
2002.

5.  He was initially mobilized in support of Operation Enduring Freedom
effective 10 February 2003 for 12 months.  On 31 December 2003, his
mobilization was extended from 12 months to not to exceed 500 days.
6.  He was considered and not selected for promotion to captain by the 2003
and 2004 Reserve Components Selection Boards (RCSB), which convened on
3 November 2003 and 4 November 2004, respectively.  He was not qualified
for promotion based on the lack of the required civilian education, a
baccalaureate degree.

7.  The applicant's Bachelor of General Studies Degree Plan, dated 18
August 2004, shows he had completed 125 hour and needed 11 additional hours
to complete his degree.

8.  The applicant's LA Tech University Academic Transcript, dated 16 March
2005, shows he was awarded an Associate of Arts degree on 14 May 1997.  The
transcript also shows he was admitted to the Bachelor of General Studies
Program in the Fall of 2002 and participated through the Summer of 2004.
He reenrolled in the Summer of 2005.

9.  On 16 March 2005, the Commander, 165th Quartermaster Battalion,
requested a civilian education waiver due to the applicant's mobilization
with the 1083rd Transportation Company.  The commander stated that the
applicant was mobilized in support of Operation Iraqi Freedom from
10 February 2004[sic] through 15 March 2004 as a platoon leader. Without
the deployment, the applicant was on track to finish his degree in August
2004.  The deployment moved his graduation date one year as should be
expected from a year long deployment to August 2005.  At the time, the
applicant was working on completing his degree and had a solid, viable
plan to finish his civilian education requirements by August 2005.  The
commander recommended approval of the waiver, as it would allow the
applicant time to meet his civilian requirements and allow the165th
Quartermaster Battalion to retain an outstanding officer with a promising
future.

10.  He was awarded a Bachelor of General Studies Degree on 18 August 2005
from LA Tech University.

11.  On 15 September 2005, the Commander, 165th Quartermaster Battalion,
advised the Office of The Adjutant General, New Orleans, LA, that the
applicant was unable to attend college from November 2002 until May 2004
due to performing duties mobilizing units and actually being mobilized for
13 months in support of Operation Iraqi Freedom.  The applicant enrolled
back in college upon his return to duty at his home station and completed
his degree in August 2005.  The commander highly recommended the applicant
be retained and selected by the board.
12.  In an advisory opinion, dated 12 August 2005, from the Chief,
Promotions Branch, Office of Promotions, Reserve Components, Human
Resources Command (HRC) – St. Louis, Missouri, stated that the applicant
was considered but not selected by the 2003 and 2004 RCSB's, based on the
fact his record did not reflect completion of the required civilian
education prior to the convening date of the promotion board.  Based on
information furnished by the applicant, his baccalaureate degree would not
be completed until August 2005.  The Army Board for Correction of Military
Records (ABCMR) was the office that had the authority to grant an exception
to policy for civilian education waivers for past boards.

13.  The opinion also stated that on 20 August 2004, the applicant applied
for a waiver of Statutory Education Requirements for promotion to captain
for Reserve officers in accordance with Title 10, United States Code and as
authorized in accordance with Section 512 of the National Defense
Authorization Act.  The waiver was disapproved by the Commanding General,
HRC, due to the applicant not attending or completing officer candidate
school (OCS).  The applicant was commissioned through the ROTC; therefore,
did not meet the criteria for the civilian education waiver.  At the time
of the request, the applicant had completed 99 credit hours.

14.  The opinion further stated that the applicant's date of rank for first
lieutenant was 30 May 1999.  The applicant has had more than 5 years to
complete the civilian education requirement.  As of 13 March 2005, (the
date of his DD Form 149), the applicant stated he had 114 credit hours, 20
credit hours remaining for degree completion with an anticipated date for
awarding of the bachelor's degree in August 2005.  The applicant had been
deployed for 13 months and stated that if he was not deployed, his degree
would have been completed earlier.  Based on the foregoing, it was
recommended the applicant's request be denied.

15.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 30 August 2005.  In his rebuttal, dated
7 September 2005, the applicant's wife stated that the applicant received
his baccalaureate degree in August 2005.  A copy of the applicant's
transcript was forwarded with the rebuttal.  In the applicant's rebuttal,
dated 16 September 2005, he stated that he was currently activated in
support of the Katrina Hurricane Disaster with no means of communication
with the outside world.  He advised his wife to respond to the advisory
opinion.  He also stated that he was activated on 10 February 2003 for 13
months.  This deployment delayed the completion of his civilian
education; however, on 18 August 2005, he completed his degree.  During his
first couple of years in the ARNG, he did waver, but found his purpose 5
years ago.  Since then he has done everything in his power to complete his
degree and become the leader he knows he is today.  After 3 years of hard
work and determination, he currently meets all the requirements for
promotion to captain.

16.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve Components officers.  This regulation 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.

17.  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.

18.  Title 10, United States Code (USC), Section 12205(a) specifies 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 Force National Guard, unless that
person has been awarded a baccalaureate degree by a qualifying educational
institution.

19.  Title 10, United States Code (USC), Section 12205(d) provides for
the granting of a waiver so that deserving officers can be considered for
promotion consideration.  This authority is now codified in title and
section of the Code and provides that:  "The Secretary of the Army may
waive the applicability of subsection (a) to any officer whose original
appointment in the Army as a Reserve officer is through the Army Officer
Candidate School Program.  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 two years after the
waiver is granted.  The Secretary concerned may provide for such a waiver
to be effective before the date of the waiver, as appropriate in an
individual case."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's, and his command's contention, that he was unable to
complete his degree due to mobilization and deployment have been noted and
are found to have merit.

2.  Notwithstanding the advisory opinion rendered in this case, and in view
of the circumstances, the applicant is entitled to a civilian education
waiver and promotion reconsideration to captain under the 2004 criteria.
The evidence of record shows that based on the applicant's duties of
mobilizing the unit and their subsequent deployment from February 2003
through March 2004, he was unable to continue and complete degree
requirements prior to the convening date of the 2004 RCSB.  In August 2004,
the applicant and his command applied for an education waiver prior to the
convening date of the 2004 RCSB.  The waiver was disapproved due to the
fact the applicant had not attended nor completed OCS.  In accordance with
Title 10, USC, Section 12205(d), the SA may on a case-by-case basis, waive
the baccalaureate degree requirement for any officer who was commissioned
through the Army or an ARNG OCS Program.

3.  The ABCMR has the authority to grant an exception to policy and grant a
waiver for the civilian education requirement considering the circumstances
of the individual officer concerned. The applicant, upon demobilization,
reenrolled in LA Tech University and completed his degree in August 2005.

4.  The applicant's command supports his efforts and considers him a
valuable asset to the Louisiana ARNG and the USAR.  Therefore, based on the
circumstances presented, the officers mobilization and subsequent
deployment in support of Operation Iraqi Freedom, he is entitled to an
exception to policy for the civilian education requirement for promotion
reconsideration to captain under the 2004 criteria.

5.  While it is clear that the intent of Title 10, USC, Section 12205(d)
was not to provide a blanket waiver of the civilian education requirement
to all officers commissioned through an OCS Program, the education
requirement pertains to all officers and, all officers are considered for
promotion to captain under equal standards.  It is concluded that it would
be unjust to deny the applicant a civilian education waiver based on his
circumstances and mobilization.

6.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.
BOARD VOTE:

__JRS__  __TAP___  _ENA___  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 to show that the applicant was granted a waiver of the civilian
education requirement for consideration for promotion to captain under
the 2004 criteria.

2.  That following administrative implementation of the foregoing, the
applicant's records be submitted to a duly constituted SSB for promotion
reconsideration to captain under the 2004 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 2004 criteria, provided he was otherwise qualified and
met all other prerequisites for promotion.

4.  That if selected for promotion and he has been separated, his records
be further corrected to show:

      a.  that his discharge or 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 discharge or 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 discharge or 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 2004 RCSB, and his transfer be expunged from his official
military records.

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




                                  _____Thomas Pagan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004718                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/22                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.10                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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