IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080015450 


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, that his date of rank (DOR) to major (MAJ) be changed from 29 September 2003 to 1 December 2001.

2.  The applicant states, in effect, that his non-selection for promotion from captain (CPT) to MAJ was based on him not having a bachelor’s degree, which was unjust given the governing law provided an exception to the civilian education requirement for promotion to MAJ for members who were promoted to CPT before 1 October 1995.

3.  The applicant provides the following documents in support of his application: Army Regulation 135-155 (Army National Guard (ARNG) and U.S. Army Reserve (USAR) Promotion of Commissioned Officers and Warrant Officers Other than General Officers) document extracts (pages 4 and 5); National Guard Bureau Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) document extract (page 66); U.S. Total Army Personnel Command, Office of Promotions, Reserve Components  memorandum, dated 26 July 2001; National Guard Bureau (NGB) Special Orders Number 144 AR, dated 30 July 1987; NGB Special Orders Number 105 AR, dated 15 November 1994; electronic mail messages; self-authored correspondence; and Joint Force Headquarters memorandum, dated               15 August 2008.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after having prior enlisted service, he was appointed as a Reserve commissioned officer in the Tennessee Army National Guard (TNARNG) in the rank of second lieutenant on 27 June 1987.  He was promoted to first lieutenant (1LT) on 26 June 1990 and to CPT on 1 December 1994.

2.  On 26 July 2001, the U.S. Total Army Personnel Command, Office of Promotions, Reserve Components, issued the applicant a memorandum informing him he had been selected for promotion to MAJ by a Reserve Component Selection Board (RCSB) that adjourned on 5 April 2001.  The notification memorandum informed the applicant that the effective date of his promotion would be either of the following dates:  date shown after A [in the memorandum, which was 30 November 2001]; the date Federal recognition is extended in the higher grade; or the date following the date Federal recognition is terminated in his current Reserve grade.

3.  On 15 August 2001, the applicant signed a request for a delay of his promotion until 29 November 2004 and this request was approved on 17 August 2001.  At that time, the applicant indicated that he understood that at any time during the period of promotion delay, he could select one of the following:  immediate promotion if he is offered a position vacancy for promotion; resignation from the ARNG and transfer to the Individual Ready Reserve for promotion in the USAR; or decline the promotion and be removed from the promotion list as a non-select.

4.  On 10 September 2003, Headquarters, TNARNG, issued Orders 253-329 which assigned the applicant to a Contracting Management Officer (MAJ vacancy) position and released him from a Materiel Management Officer (CPT vacancy) position.  These orders also announced the applicant’s promotion to MAJ on 29 September 2003 in his newly-assigned position.

5.  During the processing of this case an advisory opinion was obtained from the Special Actions Branch, Department of the Army (DA) Promotions, U. S. Army Human Resources Command - St. Louis (AHRC-STL).  That office stated that although the applicant indicated that he was not selected for promotion to MAJ because he did not have a bachelor’s degree, he was educationally qualified and selected for promotion to MAJ by the 2001 MAJ DA RCSB which convened on 6 March 2001 and adjourned on 5 April 2001.  This official also indicated that based on the applicant’s 17 August 2001 approval of his 15 August 2001 request for delay of promotion, he was again identified to the 2002 and 2004 selection boards, but he was still being carried as a delay.
6.  The AHRC-STL, Special Actions Branch, further stated that the applicant was promoted to MAJ and granted Federal recognition by the NGB on 29 September 2003.  He stated that applicant’s request for an earlier DOR had to be determined by the NGB.

7.  An advisory opinion was also obtained from the Acting Chief, Personnel Division, NGB.  This official recommended approval of an adjustment to the applicant's date of rank based on the fact the NGB had erred in initially denying the applicant promotion in 2001 because he had not met the civilian education requirement for promotion.  He stated that the error in this case was the failure to recognize the statutory requirements providing an exception to the baccalaureate degree civilian education requirement for all Reserve Component (RC) CPTs who had attained that grade prior to 1 October 1995.  He further indicated that the adjustment of the applicant's MAJ date of rank would also make him eligible to be considered for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB) under the criteria of the 2008 RCSB.

8.  The applicant was provided copies of the advisory opinions above on 21 January 2009 and to date he has failed to respond.

9.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribed policies and procedures to consolidate and modernize the laws governing the management of RC officers.  ROPMA was implemented on 1 October 1996 and it established that all mandatory promotion boards would use the best-qualified selection criteria.  The best-qualified selection criteria would replace the fully-qualified selection criteria used for promotion to CPT through LTC.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 2-9 contains the civilian education requirement for promotion.  Paragraph 2-9b(1) provides, in pertinent part, that 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 and paragraph 2-9b(2) states that all commissioned officers initially appointed on or after 1 October 1987 must possess a baccalaureate degree.  In pertinent part, it states that a unit officer must be in the higher graded position to be promoted.

11.  Section III of Army regulation 135-155 states that officers' records may be placed before a special selection board (SSB) when it is determined that their records were not submitted to a promotion selection board for consideration or the record contained a material error when it was reviewed by the promotion selection board.
12.  Title 10 of the U.S. Code, section 12205 (10 USC 12205), provides the legal criteria for the appointment education requirement for commissioned officers.  It provides a general policy that states that no person may be appointed to a grade above the grade of 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 Naval Reserve; or be Federally recognized in a grade above the grade of 1LT as a member of the ARNG or Air National Guard; unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  Paragraph B provides exceptions to this education criterion.  It specifically provides an exception to the education requirement that allows for the appointment to or recognition in a higher grade of any person who was appointed to or Federally recognized in the grade of CPT or, in the case of the Navy, lieutenant before 1 October 1995.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly denied promotion based on not meeting the civilian education requirement was carefully considered and found to have merit.  By law, an exception to the education requirement is granted to all RC CPTs who were appointed to or Federally recognized in that grade before 1 October 1995.

2.  The evidence of record confirms that the applicant was promoted to CPT on 1 December 1994, prior to 1 October 1995, and as a result had a statutory exception to the baccalaureate degree civilian education requirement at the time he was selected for promotion to MAJ in 2001.  The NGB advisory opinion provided confirms the delay in the applicant's promotion was the result of an error on their part, which was their failure to recognize the statutory civilian education exception outlined in 10 USC 12205.  It appears the applicant was unjustly denied a promotion into a higher-graded position due to this erroneous belief.  Therefore, it would be appropriate to correct the applicant's record to show he was promoted to MAJ and granted Federal recognition in that grade on 30 November 2001, the promotion eligibility date outlined in the 26 July 2001 promotion memorandum and by providing him all back pay and allowances due as a result.

3.  Further, given the date of rank adjustment made in the preceding paragraph, it would also be appropriate to place the applicant's corrected record before an SSB for consideration for promotion to LTC under the criteria of the 2008 RCSB.


BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 by:

	a.  adjusting his date of rank and Federal recognition date to MAJ to            30 November 2001 and by providing him all back pay and allowances due as a result of this correction; and

	b.  submitting his corrected record to a duly constituted Special Selection Board for promotion consideration to LTC under the criteria followed by the 2008 LTC RCSB, and if selected for promotion by establishing his LTC promotion effective date and date of rank as if he had been originally selected by the 2008 RCSB and by providing him all back pay and allowances due as a result.



      ___________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)                                         AR20080015450



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                        AR20080015450



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1