IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080015173 


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 correction of his effective date of promotion to major (MAJ) from 17 July 2003 to an unspecified date in 2002.  

2.  The applicant states that he was promoted to captain (CPT) before 1 October 1995 and should have been exempt from the civilian education requirements upon consideration for promotion to major (MAJ).  He also states, in effect, that he was twice considered for promotion by the Department of the Army (DA) Reserve Components Selection Boards (RCSB) under the Fiscal year (FY) 2002 and 2003 criteria, but was not selected based on the lack of education requirements.  However, his name was included in a class action suit that directed he and other selected officers be reconsidered for promotion by a Special Selection Board (SSB) under the 2002 criteria. 

3.  The applicant provides a copy of an extract of Army Regulation 135-155 (Promotion of Commissioned Officers and warrant Officers Other than General Officers), dated 13 July 2004; a copy of Findings of Fact, Conclusion of Law, and Order, Case Number CIV-04-945-C, dated 23 March 2006; a copy of his promotion memorandum, dated 29 June 1995; a copy of his promotion orders to MAJ, dated 28 February 2007; and copies of his 2002 and 2003 non-select memorandums, in support of his application.





CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service as a supply specialist, the applicant’s records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 14 May 1988.  He subsequently completed the Munitions Materiel Management Officer Basic Course and served in various command and staff positions within the 812th Ordnance Company, Ripley, WV.  He also completed the requirements for a Bachelor of Arts degree at West Virginia State College, on 11 May 1991, and was promoted to first lieutenant on 24 May 1991 and to CPT on 23 May 1995. 

2.  On 16 July 2002, by memorandum, the U.S. Total Army Personnel Command (now known as the Human Resources Command or HRC), St. Louis, MO, notified the applicant that he was considered for promotion to MAJ by the 2002 DA RCSB, but was not selected.  The memorandum further alerted him to the mandatory education requirements for promotion as specified in paragraphs 2-8 and 2-9, as well as Table 2-2 or Table 2-3 of Army Regulation 135-155.

3.  On 9 April 2003, HRC-St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

4.  On 7 August 2003, by memorandum, HRC-St. Louis, MO, again notified the applicant that he was considered for promotion to MAJ by the 2003 DA RCSB, but was not selected.

5.  On 2 August 2004, L**** J. W*****, a USAR officer, filed a class action law suit with the U.S. District Court for the Western District of Oklahoma, on his behalf and on behalf of others similarly situated, alleging that paragraph 2-9b of Army Regulation 135-155, which requires officers originally appointed after 1 October 1987 to have a bachelor's degree in order to be promoted to MAJ, was improperly applied and resulted in the denial of his and other officers’ promotion to MAJ. 

6.  On 23 March 2006, the U.S. District Court for the Western District of Oklahoma issued a final order approving a settlement agreement that stated, in pertinent part, that the promotion files of affected officers, to include that of the applicant, be submitted for consideration by an SSB under the 2002 and/or the 2003 criteria.



7.  On 23 January 2007, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered by an SSB under the 2002 criteria as directed by the settlement agreement; however, he was not selected for promotion to MAJ.  The memorandum further informed him that he still had a basis for consideration by an SSB under the 2003 criteria.  He was accordingly considered under the 2003 criteria and was selected for promotion to MAJ.

8.  On 28 February 2007, HRC-St. Louis, MO, published Orders B-02-701755, announcing the applicant’s promotion to MAJ with an effective date and date of rank (DOR) of 17 July 2003.

9.  An advisory opinion was obtained on 18 November 2008 in the processing of this case.  The Chief, Special Actions, DA Promotions, HRC-St. Louis, MO stated that:

	a.  the applicant was considered by the 2002 and 2003 Major DA RCSB.  In the applicant’s case, the reason for non-selection was because his civilian education was missing from both of these boards.  He did, in fact, have a bachelor's degree and it was conferred on 11 May 1991; and

	b.  the applicant was included in a class action suit initiated by L**** J. W***** that required the officers considered for promotion to MAJ by the 2002 and 2003 MAJ DA RCSB be reconsidered as educationally qualified.  The applicant was considered for promotion to MAJ for the criteria years 2002 and 2003 because of this action.  He was considered by an SSB under the 2002 criteria and not selected.  Although he was qualified to be promoted, he was not selected by this board.  He was then considered by another SSB under the 2003 criteria year and selected.  He was given 17 July 2003 as his DOR.  This is the board approval date from the 2003 criteria year.  This is the earliest date he can possibly be given.  The applicant cannot receive a DOR earlier than the approval date of the board from which selected. 

10.  The applicant was provided with a copy of this advisor opinion on 12 January 2009; however, he did not respond.

11.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the USAR, and warrant officers of the USAR.  This regulation covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  Paragraph 2-9 of this regulation states that effective 1 October 1995, no person 

may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education.  Baccalaureate degrees required for Reserve promotion to MAJ or above, as specified below, must be completed no later than the day before the selection board convening date.  All commissioned officers not previously appointed to or Federally recognized in the grade of CPT before
1 October 1995 must meet the baccalaureate degree requirement that is applied to CPT above.  All commissioned officers (other than Army Nurse Corps) initially appointed on or after 1 October 1987 must possess a baccalaureate degree from an accredited institution recognized by the U.S. Secretary of Education or have earned a baccalaureate degree from an unaccredited educational institution that has been recognized by Department of Defense (DOD) for purposes of meeting officer educational requirements.  

12.  Paragraph 4-15 of this regulation states that except as noted in other paragraphs/subparagraph, or in parts of this regulation, the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an Individual Ready Reserve/Individual Mobilization Augmentee (IRR/IMA) officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.

13.  DA Special Selection Boards for Reserve officers are governed by Title 10, U.S. Code, section 14502.  SSBs may be convened because of administrative error (e.g., an officer whose name was inadvertently not placed on an all-fully-qualified-officers list) or material error (e.g., the action of the selection board that considered and failed to select the officer was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or the selection board did not have before it for its consideration material information).  An SSB shall consider the record of an officer as that record, if corrected, would have appeared to the selection board that originally considered the officer.  That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board.  After reviewing the entire record, if an SSB does not recommend for promotion an officer whose name was referred to it for consideration, the officer shall be considered to have failed of selection for promotion by the board which did consider the officer.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to an earlier effective date of promotion to MAJ based on the settlement agreement directed by the U.S. District Court was carefully considered; however, there is insufficient evidence to support this claim.

2.  The evidence of record shows that the applicant was in fact considered by a Special Selection Board under the 2002 criteria as directed by the settlement agreement; however, he was not selected for promotion.  He was also considered by a Special Selection Board under the 2003 criteria and was selected.

3.  By regulation, the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued and the promotion memorandum may not be issued prior to the date the promotion board results are approved.  In this case, the DA RCSB/SSB (under the 2003 criteria) results were approved on 17 July 2003 and the applicant was accordingly given this date as his effective date of promotion and DOR.  Therefore, there is no error in the applicant's effective date.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is no basis to grant the applicant's relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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)                                         AR20080015173



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ABCMR Record of Proceedings (cont)                                         AR20080015173



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