RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20070007799


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 a waiver of the civilian education requirement
and promotion to captain (CPT), O-3 with a date of rank no later than 4
December 2005.

2.  The applicant states he was commissioned in August 1992.  He was
promoted to first lieutenant (1LT), O-2 in August 1995.  In February 2000,
he requested to be placed in an inactive status for six months in order to
focus on his business and school.  In July 2000, he received discharge
papers from the Colorado National Guard.  He was told he had been twice non-
selected for promotion to CPT and the discharge was required by Army
Regulation and Federal law.  After that, he was not contacted by any
organization in the military for almost five years.

3.  The applicant states that in the summer of 2005 he was contacted by a
major from the U. S. Army Human Resources Command [St. Louis] (HRC-STL) and
told he was still in the Individual Ready Reserve and if he were to join a
drilling reserve unit he would still be able to retire out of the U. S.
Army Reserve (USAR).  He asked the major to research this more because the
applicant would be a 1LT with ten years time in grade, which is not
allowed.

4.  The applicant states that in October 2005 he received mobilization
orders.  He called HRC-STL and explained the situation again to the major
and several civilians.  He got different replies.  The major told him that
if he sent a request for a civilian education waiver, which was meeting the
first week of November, he would be promoted to CPT.  He sent a waiver
request and reported for duty.  While waiting to deploy, he was notified
that he was non-selected by the November board and by law he would be
separated from the Army not later than 1 August 2006.  He was told that
since he was already mobilized, he would continue with the deployment and
upon his return from Iraq and demobilization he would then be separated in
accordance with the law.

5.  The applicant states that, in 2000, he accepted the fact that he failed
to meet the requirements for promotion and a continued military career.
Throwing away 14 good years of service was not what he had planned or
wanted, but it was due to his actions and decisions.  He does not accept
the fact that six years later the Army disregards the regulations and laws
which they were so swift to act on before.  He has given the Army another
18 months of service with nothing in return.

6.  The applicant provides a 13 July 2006 letter from his Congressman to
 HRC-STL; two undated letters from the applicant to his Congressman; emails
dated March 2007; an undated Deputy Chief of Staff for Personnel, G-1
Executive Summary; a 5 April 2007 “Wall Street Journal” article on the
applicant’s situation; a 15 August 2006 letter to the applicant from his
Congressman; a 7 August 2006 letter from HRC-STL to the applicant’s
Congressman; a 29 January 2007 letter from the applicant’s superior to
  HRC-STL; a 2 February 2006 HRC-STL memorandum; and a printout of a
“blog.”

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  After having had prior enlisted service in the Regular Army and the
Army National Guard (ARNG), the applicant was commissioned a second
lieutenant in the ARNG out of Officer Candidate School (OCS) on 22 August
1992.  He was promoted to 1LT on 21 August 1995.

3.  Orders dated 24 January 2000 transferred the applicant to the Inactive
National Guard (ING) effective 1 February 2000.

4.  A 16 May 2000 memorandum from the Office of Promotions, Reserve
Components, U. S. Total Army Personnel Command, through the State Adjutant
General to the applicant, informed the applicant that he had been
considered for promotion to CPT but was not selected for promotion.  The
memorandum indicated the applicant had not completed the required civilian
and/or military education.

5.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record
of Service) shows the applicant was discharged from the Army National Guard
of Colorado and transferred to the USAR Control Group (Reinforcement)
effective  1 July 2000 by reason of resignation from the ARNG.  The remarks
section of  the NGB Form 22 shows he served in the ING from 1 February 2000
through    30 June 2000.  The applicant was not available to sign the NGB
Form 22.

6.  The applicant provided an undated Deputy Chief of Staff for Personnel,
G-1 Executive Summary which stated the applicant should have been
considered for promotion to CPT by the 2000 through 2004 promotion boards
while he was in the Individual Ready Reserve (IRR) but for an unknown
reason was not.

7.  The applicant was mobilized for Operation Iraqi Freedom and entered
active duty on 4 December 2005.

8.  A 2 February 2006 memorandum from the Office of Promotions, Reserve
Components, HRC-STL informed the applicant he had been considered for
promotion to CPT by the promotion board that convened on 7 November 2005
but was not selected for promotion.  The memorandum did not mention the
applicant’s lack of the required civilian education.  It did inform him
that as a result of his second nonselection, he would be discharged in
accordance with Title 10, U.S. Code, section 14504(a), and his established
removal date was not later than 1 August 2006.  (Because the applicant was
mobilized, he was not separated at that time.)

9.  The applicant provided a 7 August 2006 letter from HRC-STL to his
Congressman, which indicated the applicant had been identified to, but
removed from, the 2000 CPT, Army Promotion List, Department of the Army
Reserve Components Selection Board (RCSB) due to his time spent in the
Inactive Army National Guard as of 1 February 2000.  That office could not
determine why he was not identified to the 2001 through 2004 promotion
boards.

10.  The applicant arrived in Iraq on 26 April 2006.

11.  A 22 February 2007 memorandum from the Office of Promotions, Reserve
Components, HRC-STL informed the applicant he had been considered for
promotion to CPT by the promotion board that convened on 7 November 2006
but was not selected for promotion.  The memorandum did not mention the
applicant’s lack of the required civilian education.  It did inform him
that as a result of his second nonselection, he would be discharged in
accordance with Title 10, U.S. Code, section 14504(a), and his established
removal date was not later than 1 September 2007.

12.  The applicant departed Iraq on 18 March 2007.  He was released from
active duty on 7 May 2007 and returned to the USAR Control Group
(Reinforcement).

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers) states, in pertinent part,
that the time-in-grade requirement for promotion to captain is a maximum of
5 years in the rank of first lieutenant.  Paragraph 2-6 of this regulation
states an officer returned to an active status after having been in an
inactive or retired status will not be considered for a Reserve of the Army
promotion (mandatory or USAR position vacancy) until at least 1 year after
the date of return to an active status.

14.  The staff of the Board has been informed that retention of the
applicant will trigger his mandatory consideration by the 2007 RCSB which
will convene on     6 November 2007.

15.  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.

16.  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.

17.  Title 10, U. S. Code, section 14504 provides that a first lieutenant
of the reserve active-status list who has failed of selection for promotion
to the next higher grade for the second time and whose name is not on a
list of officers recommended for promotion to the next higher grade shall
be separated not later than the first day of the seventh month after the
month in which the President approves the report of the board which
considered the officer for the second time.

18.  Department of the Army Personnel Policy Guidance, chapter 13, states
that a commissioned officer who is notified of a two-time nonselect for
promotion, and is not selectively continued, will be retained on active
duty for the period of the unit’s mobilization and then separated as
required by law.

19.  Department of the Army Pamphlet 600-3 is intended as a professional
development guide for individual officers.  In pertinent part, it states
officers in many respects are ultimately their own career managers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.

2.  It is acknowledged that the Army made errors in his case.  He should
have been considered for promotion during the years 2001 through 2004,
while he was in the IRR.  Of course, he would have been nonselected for
promotion to CPT by the 2001 board as he still did not have his
baccalaureate degree, and he would
have been discharged from the USAR as a two-time nonselect as required by
Federal law.

3.  It should be recognized that the requirement to have a baccalaureate
degree prior to promotion to CPT is not an Army regulatory requirement.
Congress required officers to have a baccalaureate degree prior to
promotion to CPT, and the Army is only following the law by not promoting
the applicant to CPT without his having that degree and only following the
law again by discharging him (contingent upon mobilization/deployment
considerations) upon being a two-time nonselect for promotion.

4.  In addition, the applicant states he received discharge papers.  If the
discharge papers he received included the NGB Form 22, he should have seen
that he was discharged only from his ARNG State status and had been
transferred to the USAR Control Group (Reinforcement).  If his discharge
papers did not include the NGB Form 22, he should have contacted his old
unit or the State and requested a copy of the NGB Form 22.  Once received,
he would have seen that he had been discharged only from the ARNG.  Or, if
the reason for his separation (“resignation from the ARNG”) was wrong and
he had actually resigned his commission (his resignation paperwork is not
available), he could have taken steps to correct his separation documents
to show he had been discharged from the ARNG and as a Reserve of the Army.
That would have prevented his December 2005 mobilization.

5.  By realizing the NGB Form 22 had transferred him to the USAR, and
provided his “resignation from the ARNG” was not an error, the applicant
could have managed his career either by ensuring he was considered by a
promotion board during the years 2001 through 2004, or by requesting a
resignation of his commission.

6.  Notwithstanding the above, nevertheless the applicant did respond to
his December 2005 mobilization with honorable service in a combat zone.  By
law the applicant is not eligible for promotion to CPT at this time.
However, it would be equitable to correct his records to show he requested
and was granted a civilian education waiver, for promotion consideration
only, in time for his records to be considered by the November 2006 CPT
RCSB and that his records be considered for promotion to captain by a
special selection board under the criteria of the November 2006 CPT RCSB.
The civilian education waiver would be effective the date of this Board
action and is intended to provide the applicant two years from the date of
this Board action to complete his baccalaureate degree.
7.  It would also be equitable to retain the applicant in an active Reserve
status beyond 1 September 2007 pending the outcome of the special selection
board and completion of the appropriate notification process.  Based upon
this retention, his consideration by the 2007 RCSB with a civilian
education waiver would also be appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ena___  __swf___  __eif___  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 all Department of the Army records of the individual
concerned be corrected by:

     a.  showing he requested and was granted a civilian education waiver,
for promotion consideration only, in time to be considered by the CPT RCSB
that convened on 7 November 2006 (the civilian education waiver to be
effective the date of this Board action and is intended to provide him two
years from the date of this Board action to complete his baccalaureate
degree);

     b.  forwarding his records to a special selection board for
consideration for promotion to captain under the criteria of the CPT RCSB
that convened on          7 November 2006;

     c.  promoting him to captain if he is selected and upon satisfactory
completion of all requirements for promotion and assigning the appropriate
date of rank or notifying him accordingly if he is not selected for
promotion;

     d.  forwarding his records to the 2007 RCSB, with the civilian
education waiver in force; and

     e.  retaining him in an active Reserve status beyond 1 September 2007
pending the outcome of the special selection board and the 2007 RCSB in
order to complete the appropriate notification processes.

2.  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
showing he was promoted to captain with a date of rank no later than 4
December 2005.




                                  __Eric N. Andersen
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007799                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070703                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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