IN THE CASE OF:	  

		BOARD DATE:	        27 May 2009

		DOCKET NUMBER:  AR20080013171 


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 by a special selection board (SSB).  

2.  The applicant states that a waiver would allow him to be eligible for promotion at the Army Reserve Captain promotion Board in November 2008.  US Code Title 10, Subtitles E, Part II, chapter 1205, 12205 states" No person may be appointed to a grade above the grade of First Lieutenant (1LT) in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of Lieutenant (junior grade) in the Navy Reserve, or be federally recognized in a grade above the grade of 1LT as a member of the Army National Guard or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying educational institution.   However, the same US Code does authorize the following:  "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.  The applicant believes that the Secretary of the Army should have the authority to grant a 2 year waiver to direct commissioned officers similar to the authority granted by US Code Title 10 for OCS graduates.  The applicant adds that he joined the US Army Reserve as an enlisted Soldier on 10 November 1999.  His date of promotion to 1LT was 17 August 2006.  He is currently 
6 semester hours or 2 classes away from completing his baccalaureate degree in music from Lawrence University in Appleton, WI.  According to the email dated 17 April 2008 from the Human Resource Command (HRC), he will be considered by the US Army Reserve Captain Promotion Board in November 2008.  Based on the direction of US Code Title 10, He will not be eligible for promotion due to his current educational status.  Upon notification of the upcoming board, he contacted Mr. M---s, HRC, Promotions Branch and discussed  his options concerning his civilian education status, after explaining his situation Mr. M---s, he recommended that the applicant submit an application to ARBA due to the fact that there is no waiver authority at the lower level of command.  At the time of his direct commission, he had only 23 semester hours remaining to complete his baccalaureate degree.  He adds that he will show that he has made progress toward completing his degree; however, Army deployments in support of the Global War on Terrorism have interfered with satisfying the educational requirements.  Following his commissioning on 18 August 2004, he enrolled and attended Officer Basic Course (Ordnance) at Aberdeen Proving Grounds from January through May 2005.  This course is required for all newly commissioned Lieutenants.  This requirement prevented him from pursuing the completion of his baccalaureate degree.  As a result of being so far along in his degree plan, he was forced to seek out very specific courses that would be accepted by Lawrence University for transfer credit.  Since Lawrence University does not offer any night school or summer school, he was forced to utilize the Wisconsin State School system to find courses that would be accepted for transfer and would fit into his career and family schedule. During the summer of 2005, there were no classes offered that would benefit his degree program.  In the fall of 2005, he completed a 5 semester hour course.  The applicant adds that he was deployed to Iraq from January 2006 through February 2007.  Upon his return from deployment he immediately began taking courses; in fact he began taking courses in January 2007 before returning from Iraq.  From January 2007 through December 2007, he completed 12 semester hours throughout 3 consecutives school terms.  On 16 March 2008, the applicant was deployed to Afghanistan and the current deployment is scheduled through February 2009.  The applicant adds that he has 71 more units than is required for his degree program.  The applicant adds that he will pursue his final class during the fall of 2009, even though he may complete his degree by December 2009.  The Army Reserve Captain Promotion Board in November 2009 will be his second look and he still is unqualified.  In accordance with Army Regulation (AR) 135-155 Chapter 4-33, this will require that he be separated from the Army Reserves.  A separation would cause great hardship on his career since he was planning on staying in the US Army Reserve until retirement.  He is currently a DA Civilian employee in the military technician program under a dual – status agreement mandating his participation in the Army Reserves to maintain employment eligibility.  

3.  The applicant provides six Officer Evaluation Reports (OER) in support of his application.



CONSIDERATION OF EVIDENCE:

1.  On 18 August 2004, the applicant was appointed a Reserve Commissioned Officer of the Army, as a second lieutenant.  

2.  The applicant's service academic evaluation report dated 26 May 2005 shows that the applicant was the distinguished graduate of the Ordnance Officer Basic Course with an academic average of 95.42 percent.  

3.   The applicant was ordered to active duty in support of Iraqi Freedom effective 
3 January 2006.  On 17 August 2006, he was promoted to 1LT effective 
17 August 2006.  On 12 February 2007, the applicant returned to his unit after serving 1 year, 1 month and 10 days in Iraq.

4.  The applicant was considered and not selected for promotion to captain by the FY 2009, (Captains) Department of the Army Reserve Components Selection Board (RCSB), which convened on 4 November 2008.  The applicant was not qualified for promotion based on the lack of the required civilian education, a baccalaureate degree.

5.  The applicant was ordered to active duty in support of Enduring Freedom effective 16 March 2008.  On 4 May 2009, the applicant was released from active duty and transferred to his unit after serving 1 year, 1 month and 19 days in Afghanistan.  

6.  In an advisory opinion, dated 2 February 2009, the Chief, Promotions Branch, Office of Promotions, Reserve Components, Human Resources Command – St. Louis, Missouri, stated that the applicant was appointed a second lieutenant on 18 August 2004 and was promoted to 1LT on 17 August 2006.  The zone of consideration for the FY 2009 RCSB, was for the 1LT's whose date of rank was
1 September 2005 through 31 August 2006.  Since the applicant's date of rank was in the zone of consideration, he was considered by the FY 2009 Captain 
RCSB.  The board convened on 4 November 2008.  The applicant was not selected due to not meeting the required civilian education prior to the convening date of the board.  The applicant states that he would have had his degree completed, but due to his deployment he was unable to do so.  The applicant will again be considered by the FY 2010 Captain RCSB.  This will be his second consideration.  Recommended approval of a civilian education waiver and if granted direct a special board for reconsideration for promotion for 2008.     

7.  The applicant submits in support of his application his six OER's dated August 2004 through March 2009.  The applicant's OER's shows in essence that the applicant is an outstanding Soldier, that performed his duties in an exemplary manner, with unlimited potential and he operates at the level of a Major.   

8.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 17 February 2009.  The applicant concurred on 18 February 2009.

9.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that promotion consideration/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.  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.

10.  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.

11.  The regulation further specifies that the Chief, Office of Promotions, is the approval authority for all current 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 year criteria.

DISCUSSION AND CONCLUSIONS:

1.  The applicant'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.  The evidence of record shows that based on the applicant's deployment in support of Iraq Freedom from 3 January 2006 through 12 February 2007 and Enduring Freedom from 16 March 2008 through 4 May 2009, he was unable to continue and complete his degree requirements prior to the convening date of the FY 2009 Captain RCSB, which convened on 4 November 2008.

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, before demobilization, has reenrolled in Wisconsin State University and he has estimated that he will have his degree by December 2009.

4.  The applicant is considered a valuable asset to his country and to the Army Reserve and the applicant's military record is outstanding.  Therefore, based on the circumstances presented, the officer's mobilization and subsequent deployment in support of Operation Iraqi Freedom and Enduring Freedom , he is entitled to an exception to policy for the civilian education requirement for promotion reconsideration to captain under the 2009 year criteria. 

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

BOARD VOTE:

____X____  ____X____  ____X____  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 2009 year 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 2009 year criteria.

3.  That, if selected, his records be further corrected by showing he was promoted to captain on his date of eligibility, as determined by appropriate Departmental officials, using the 2009 year criteria, provided he was otherwise qualified and met all other prerequisites for promotion.

4.  That all documents related to his now-voided non-selection for promotion to captain by the 2009 RCSB, be expunged from his official military records.

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





      _______ _   _X______   ___
       	   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)                                         AR20080013171



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013171



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1