RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060010007 


	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.


x
	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 that he be reinstated as a first lieutenant (1LT), O-2; that his second non-selection for promotion to captain (CPT) be removed; and that his enlisted service as an E-5 be removed and adjusted to reflect O-2.

2.  The applicant states that he was improperly separated as a 1LT.  His paperwork requesting a waiver for his bachelor degree was lost while he was on active duty overseas.  He resubmitted the paperwork when he returned but he was told that it was too late to reverse a promotion board decision.  He has attempted to correct this error through his chain of command, the State, the National Guard Bureau (NGB), his Congressman, his Senator, and the Inspector General and no one has been able to discern this process or procedure.  

3.  The applicant provides a copy of his request for an education waiver; his NGB Form 22 (Report of Separation and Record of Service); personal statements; his request for a Department of the Army (DA) Special Board; and an email regarding a request for a special board.  

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in support of Operation Enduring Freedom.

2.  After having had prior enlisted service in the Pennsylvania Army National Guard (PAARNG), the applicant was appointed as a second lieutenant after completion of Officer Candidate School (OCS) in the PAARNG on 13 August 1994.  

3.  He was promoted to 1LT on 19 June 1998.

4.  The applicant’s Temple University transcript shows he was enrolled from the First Semester 1990 through the First Semester 2002.

5.  The applicant was considered and not selected for promotion to CPT by the 2002 Reserve Components Selection Board (RCSB), which convened on 4 November 2002.  The notification of promotion status indicated he had not completed the required civilian and/or military education by the day the board convened.  

6.  The applicant was ordered to active duty on 1 March 2003 in support of Operation Enduring Freedom.  He arrived in Kosovo on 11 July 2003.

7.  The applicant was considered and not selected for promotion to CPT by the 2003 RCSB, which convened on 3 November 2003.

8.  He departed Kosovo on 15 February 2004 and was released from active duty on 21 March 2004.  On the following date, he was transferred back to his National Guard unit.  

9.  He reenrolled into Temple University during the First Semester 2004.

10.  The applicant’s NGB Form 22 shows he was discharged from the PAARNG and as a Reserve of the Army on 1 October 2004 under the provisions of National Guard Regulation (NGR) 635-100, paragraph 5a(10) based on his 
two-time non-selection for promotion.

11.  On 11 December 2004, the applicant enlisted in PAARNG in pay grade E-5 for a period of one year.  He later extended his enlistment for one year.

12.  The applicant was awarded a Bachelor of Arts Degree in Human Resources Administration from Temple University in May 2005.

13.  Orders were published by the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs in Annville, Pennsylvania which discharged the applicant from the Army National Guard and as a Reserve of the Army effective 1 October 2006 in the rank of sergeant (SGT).

14.  The applicant was reappointed in the Army National Guard as a 1LT on 2 October 2006.

15.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, 
U.S. Army Human Resources Command - St. Louis, Missouri.  The opinion stated that the applicant was considered for promotion by the 2002 and 2003 CPT DA RCSB and was not selected because his records did not contain evidence that he had completed a baccalaureate degree.  The opinion also stated the applicant was enrolled and working on his civilian education, but it was interrupted because he was mobilized to Kosovo in March 2003 for a year.  The 2003 CPT DA RCSB convened on 3 November 2003 and recessed on 5 December 2003.  The opinion further stated the applicant sent in a request for a civilian education waiver prior to the 2003 board through his chain of command overseas, but it was misplaced.  Due to those circumstances, this office recommended the Army Board for Correction of Military Records grant him a civilian education waiver for the 2003 CPT DA RCSB.  If granted, the applicant would be assigned to the next available special selection board (SSB).  
16.  A copy of the advisory opinion was forwarded to the applicant for comment.  He concurred with the advisory opinion.  

17.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  Chapter 2 provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain to lieutenant colonel.  

18.  Title 10, U.S. Code, section 12205 states that no person may be appointed to a grade above the grade of first lieutenant unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  The National Defense Authorization Act for Fiscal Year 1999 authorized the Secretary of the Army to waive, until 30 September 2000, this requirement for any officer who was commissioned through the Army OCS before 17 October 1998.  The waiver would be made on a case-by-case basis and could continue in effect for no more than two years after the waiver was granted.  

19.  The National Defense Authorization Act for Fiscal Year 2002 added section 12205(d) to Title 10, U.S. Code.  This section authorized the Secretary of the Army to waive the requirement to have a baccalaureate degree prior to promotion to captain for any officer who was commissioned through the Army OCS.  The waiver would be made on a case-by-case basis and may continue in effect for no more than two years after the waiver is granted.  Officers who have not earned a baccalaureate degree at the end of the period in which the waiver was granted are subject to discharge from active duty.  The new waiver authority has no expiration date.

20.  By memorandum dated 29 May 2003, the Assistant Secretary of the Army (Manpower and Reserve Affairs) delegated to the Office of the Deputy Chief of Staff, G-1 the authority to grant waivers of educational requirements for any Reserve Component officer whose original appointment in the Army as a Reserve officer was through the Army OCS program.  Waivers would be made on a case-by-case basis and would be granted only to those officers who demonstrated substantial progress towards completion of degree requirements.

21.  Army Regulation 135-155 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.  

22.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers subject policy and procedures and, in pertinent part, provides detailed procedures regarding removal of Army Reserve members from an active status.  Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major, and lieutenant colonel.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a second lieutenant in the PAARG on 13 August 1994 from OCS.  

2.  The applicant was promoted to 1LT on 19 June 1998.

3.  The evidence of record shows the applicant was not selected for promotion to CPT by the DA RCSB which convened on 4 November 2002 and 3 November 2003.  There was no record he was awarded a baccalaureate degree prior to the convening dates of these selection boards.  However, based on the information provided in the advisory opinion, the applicant had submitted a request for a civilian education waiver in accordance with Title 10, U.S. Code, section 12205(d) prior to the convening date of the 2003 DA RCSB through his chain of command overseas.  The request for a waiver was “misplaced.”  

4.  Based on the applicant’s two non-selections to CPT based in part on his not meeting the civilian education requirement, the law required that he be removed from an active status.  As a result, he was discharged from the PAARNG on 1 October 2004.

5.  The applicant enlisted in the PAARNG on 11 December 2004 in pay grade
E-5.  This enlistment was valid; therefore, there is no basis for removal of his enlisted service as an E-5 or adjustment of this service to reflect O-2 at this time. He was reappointed in the Army National Guard as a 1LT on 2 October 2006.

6.  However, it appears that an injustice has occurred in this case.  Therefore, it would be equitable to correct his records to show he requested a civilian education waiver prior to the expiration of the first waiver authority, that his records be considered for promotion to captain by an SSB under the applicable criteria, and if he is selected for promotion that his records then be corrected to show he did not revert to an enlisted status but remained a commissioned officer. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

x____  x______  x_____  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 the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

a.  showing he requested a civilian education waiver on 1 September 2003 and his request was granted; and

b.  forwarding his records to an SSB for consideration for promotion to CPT under the applicable criteria.

2.  If the applicant is selected for promotion his record should be corrected by:

a.  voiding his 11 December 2004 reversion to an enlisted status and showing he remained a commissioned officer;

b.  placing an adequate explanation in his official personnel files to show 
the gap in his officer evaluation reports from the dates of his now-voided discharge to the date of return to Ready 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.  expunging from his official military records all documents related to his now-voided non-selection for promotion and his discharge.

3.  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 removal of his enlisted 
service as an E-5 and adjustment of his enlisted service as an E-5 to reflect O-2 at this time. 




x _______
          CHAIRPERSON


INDEX

CASE ID
AR20060010007
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
Grant partial
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
102.0000
2.

3.

4.

5.

6.