IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080010577 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a civilian education waiver and promotion reconsideration to captain (CPT) by a special selection board (SSB) under the fiscal year (FY) 2007 criteria. 

2.  The applicant states that she did not receive a zone of consideration message and was never notified that her records would be considered by the fiscal year 2007 (FY07) CPT Board, and therefore, she was unable to apply for a civilian education waiver.  She also adds that she was selected for and was promoted to CPT; however, her promotion orders were revoked.  

3.  The applicant provides a copy of a civilian education waiver memorandum, dated 13 May 2008, in support of her application.  

4.  On 16 July 2008, by fax, the applicant submitted the following additional documentary evidence in support of her application:

	a.  Verification of College Attendance, dated 16 July 2008, University of Toledo, Toledo, Ohio.

	b.  Student Detail Schedule, dated 15 July 2008.

	c.  Degree Audit Key, dated 15 July 2008.

	d.  Various Academic Transcripts, dated on miscellaneous dates.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army for a period of 3 years on 3 March 1998.  She held military occupational specialty (MOS) 54B (Chemical Operations Specialist), attained the rank/grade of sergeant (SGT)/E-5, and was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 2 March 2001.  Her records also show she completed Officer Candidate School (OCS) during this period of enlistment.

2.  On 3 March 2001, the applicant enlisted in the New York Army National Guard (NYARNG) for a period of 4 years, 9 months, and 9 days in the rank of SGT/E-5.  She subsequently applied for and was granted a transfer to the Ohio Army National Guard (OHARNG) on 16 April 2002 and was promoted to staff sergeant (SSG)/E-6 on 28 April 2003.

3.  On 9 June 2003, by memorandum, the Assistant Adjutant, Headquarters, 145th Regiment, Regional Training Institute, OHARNG, Columbus, OH, requested a review and certification of the applicant’s education for the purpose of the applicant’s commissioning in the OHARNG.  

4.  By memorandum, dated 12 June 2003, the Education Services Officer, OHARNG, verified that he had seen the original/official (raised seal) transcript issued by Toledo University stating that the applicant had acquired a Baccalaureate degree or equivalent.

5.  On 27 June 2003, a Federal Recognition Board was held by the OHARNG to determine if the applicant was qualified to be awarded Federal Recognition.  The proceedings indicated that the applicant was satisfactory in her physical qualifications, moral character, and general qualifications.  

6.  On 23 August 2003, the applicant was discharged from her enlisted status in the Army National Guard and was further appointed as a second lieutenant (2LT) in the Engineer Branch of the OHARNG, effective 24 August 2003.  She accepted her appointment as a 2LT in OHARNG and executed an NGB [National Guard Bureau] Form 337 (Oaths of Office) on 24 August 2003.  She subsequently entered active duty and completed the Combat Engineer Officer Basic Course on 18 June 2004.  

7.  On 1 July 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently entered active duty and served in Kuwait/Iraq from 26 July 2004 to 22 March 2005.  She was honorably separated on 20 April 2005.   
8.  On 24 August 2005, the applicant was promoted to first lieutenant (1LT).  

9.  On 14 September 2007, the National Guard Bureau, Arlington, Virginia, published Orders 257-5, honorably discharging the applicant from the ARNG, effective 9 July 2007, and terminating her Reserve of the Army and Army of the United States appointments.  However, an entry made on the applicant's Integrated Web Services (IWS) shows she was assigned to a troop program unit (TPU), the 416th Engineer Command, Monclova, OH, effective 9 July 2007.

10.  The applicant was considered and selected for promotion to CPT by the 2007 Reserve Components Selection Board (RCSB) that convened on 6 November 2007 and recessed on/around 15 November 2007.  

11.  On 24 March 2008, the U.S. Army Human Resources Command (HRC), St. Louis, Missouri (MO), published Orders B-03-801921, announcing the applicant’s promotion to CPT, effective 8 February 2008.

12.  On 16 April 2008, HRC-St. Louis, MO, published Orders B-03-801921R, revoking the applicant’s promotion to CPT.  She was not qualified for promotion based on the lack of required civilian education, a baccalaureate degree from an accredited college or university.  Furthermore, she was granted defacto status for pay purposes for the promotion to CPT for the time she served from the date of promotion to the date of revocation. 

13.  On 13 May 2008, by memorandum, the applicant requested a waiver of the statutory education requirements for promotion to CPT.  In her request, she remarked that she was transferred to a unit that was mobilizing during the fall 2003 semester.  She attended the Officer Basic Course from February 2004 to July 2004 and reported to her ARNG unit in August 2004.  In March 2005, she returned home and became pregnant and that during her pregnancy, she was unable to travel the two hours to attend school.  However, she has since taken one class each spring and plans to complete her degree on 1 August 2008. 

14.  There is no indication that HRC-St. Louis, MO, received her request for a civilian education waiver.

15.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  This regulation specifies that promotion reconsideration by an 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 also 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 regulation further specifies that the Chief, Office of Promotions, is the approval authority for all current year criteria requests for exception to non-statutory promotion requirements (i.e., civilian education), and that requests must contain complete justification and be received prior to the board convening date.  The ABCMR has the authority to grant a waiver for the civilian education for a past criteria.

18.  Title 10 United States Code (USC), Section 12205, states that no person may be appointed to a grade above first lieutenant in the Army Reserve, or be federally recognized in a grade above first lieutenant as a member of the Army National Guard unless he was awarded a baccalaureate degree from a qualifying educational institution.  A qualifying institution is an educational institution that is accredited. This statutory provision applies to active duty Other Than Regular Army (OTRA) officers.  It does not apply to officers appointed to the grade of captain before 1 Oct 95, nor does it apply to an officer appointed in, or assigned for service in a health profession for which a baccalaureate degree is not a condition of original appointment or assignment.

19.  In accordance with section 512 of the National Defense Authorization Act (NDAA) for FY02, the Secretary of the Army may, on a case-by-case basis, waive the baccalaureate degree requirement of 10 USC 12205(a) for any officer who was commissioned through the Army Officer Candidate School.  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 in which the waiver was granted are subject to discharge from active duty.  The new waiver authority has no expiration date and is now codified as 10 USC 12205(d).


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that when the applicant applied for Federal recognition as a commissioned officer in 2003, an OHARNG education service officer certified that he had seen the original/official (raised seal) transcript issued by Toledo University and stated that the applicant had acquired a Baccalaureate degree or equivalent.  However, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows she completed a bachelor degree.

2.  The applicant’s order to active duty and subsequent deployment in support of OIF, as well as her pregnancy, are noted.  Furthermore, her efforts in pursuing her education with a goal of obtaining a Bachelor degree are also noted.  Nevertheless, when her record was considered by the 2007 RCSB, she lacked the civilian education requirement.  Accordingly, her erroneous promotion orders were revoked.  

3.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  It is further noted that the applicant knew or should have known that completion of a bachelor degree has been a long-standing regulatory requirement.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

5.  The applicant indicated that she intends to complete her Bachelor degree in August 2008.  If the applicant completes her degree as she indicated, she is advised to submit/forward her documentation to the Officers Promotion Branch at HRC-St. Louis, on or before 1 October 2008, in order for her to be educationally qualified for promotion, if selected, by the 2008 RCSB that is tentatively scheduled to convene in November 2008.  If her degree is not completed as planned, the applicant may request a civilian education waiver for the CPT RCSB under the 2008 criteria, through her chain of command, to HRC-St. Louis, MO, with full justification, prior to 1 October 2008.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.

															XXX
      _______________________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010577



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ABCMR Record of Proceedings (cont)                                         AR20080010577



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