BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090013316 


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, reconsideration of his earlier request that his date of rank to captain be corrected from 17 August 2007 to 7 February 2006.

2.  The applicant states, in effect, that Federal law allows the promotion to captain without a baccalaureate degree once waived by the Secretary concerned; that the intent of Title 10, U.S. Code, section 12205(d), is for promotion and not consideration purposes; and that the U.S. Army Human Resources Command (HRC), St. Louis, Missouri, has no legal justification in implementing a partial waiver policy and must correct his date of rank to captain based on his promotion eligibility date (PED) of 7 February 2006.

3.  The applicant provides a self-authored statement and the eight documents identified as enclosures on the statement in support of his reconsideration request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070012724 on 9 December 2008.

2.  During its original review, the Board concluded the applicant had incorrectly applied the regulatory guidance regarding promotion eligibility and that the governing law cited by the applicant stipulated that no person may be appointed above the rank of first lieutenant unless that person has been awarded a baccalaureate degree.  As a result, unless the governing law were changed, he was not eligible to be promoted until he completed the degree requirement.

3.  The applicant provides a copy of Title 10, U.S. Code, sections 12205(a) and 12205(d), civilian case law, and a copy of a previous Board decision as new evidence in support of his reconsideration request.  He argues that the statute allows promotion to captain once a waiver is granted by the Secretary concerned and that the intent of the statute is to allow waivers for promotion and not for consideration.  He further claims that HRC has no legal justification to implement a partial waiver policy and must correct his date of rank to his PED.  He claims a previous ABCMR decision is consistent with the law.

4.  The applicant's record shows that upon completion of Officer Candidate School (OCS), he was commissioned as a second lieutenant in the U.S. Army Reserve and entered active duty in that status on 16 December 1999.  He was promoted to first lieutenant on 7 February 2002 and his PED for captain was established as 6 February 2007.  It further shows he was granted a civilian education waiver for promotion consideration and was selected for promotion to captain by the 2005 Department of the Army, Captain, Reserve Component Selection Board.  On 17 August 2007, the date he completed his baccalaureate degree, he was promoted to captain.

5.  The applicant provides a previous ABCMR decision on another officer, who had been promoted to Captain prior to 1 October 1995, that granted relief based on the specific exception to the civilian education requirement contained in the governing law that allows the appointment to or recognition in a higher grade of any person who was appointed to or Federally recognized in the grade of captain or, in the case of the Navy, lieutenant before 1 October 1995.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve.  Chapter 2 provides promotion eligibility and qualification requirements.  Table 2-1 outlines the time-in-grade (TIG) requirements for promotion and states, in pertinent part, that the minimum TIG for captain is 2 years and the maximum TIG is 5 years.  Paragraph 2-9 provides civilian education requirements and states, in pertinent part, that effective 1 October 1995 no person may be selected for promotion to the Reserve grade of captain unless that person has been awarded a baccalaureate degree.

7.  Title 10, U.S. Code, section 12201, provides legal guidance for establishing qualifications for appointment and states, in pertinent part, that except as otherwise provided by law, the Secretary concerned shall prescribe physical, mental, professional, and age qualifications for appointment of persons as Reserves of the Armed Forces under his jurisdiction.

8.  Title 10, U.S. Code, section 12205, provides the educational requirement for appointment of commissioned officers.  Title 10, U.S. Code, section 12205(a), states, in pertinent part, that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve unless that person has been awarded a baccalaureate degree by a qualifying education institution.

9.  Title 10, U.S. Code, section 12205(b) provides the following specific exceptions to this education requirement:  (a) the appointment to or recognition in a higher grade of a person who is appointed in or assigned for service in a health profession for which a baccalaureate degree is not a condition of original appointment or assignment; (b) the appointment in the Navy Reserve or Marine Corps Reserve of a person appointed for service as an officer designated as a limited duty officer; (c) the appointment in the Navy Reserve of a person appointed for service under the Naval Aviation Cadet program or the seaman to admiral program; (d) the appointment to or recognition in a higher grade of any person who was appointed to or Federally recognized in the grade of captain or, in the case of the Navy, lieutenant before 1 October 1995; and (e) recognition in the grade of captain or major in the Alaska Army National Guard of a person who resides permanently at a location in Alaska that is more than 50 miles from each of the cities of Anchorage, Fairbanks, and Juneau by paved road and who is serving in a scout unit or a scout-supporting unit.

10.  Title 10, U.S. Code, section 12205(d), provides waiver authority for Army OCS graduates and certain Marine Corps officers.  It states, in pertinent part, that 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 OCS program, that any such waiver shall be made on a case-by-case basis considering the individual circumstances of the officer involved, and may continue in effect for no more than 2 years after the waiver is granted.

11.  Title 10, U.S. Code, section 14101, provides guidance on convening of selection boards and states, in pertinent part, that the Secretary concerned shall convene a selection board to recommend officers on the Reserve Active Status List for promotion to the next higher grade.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Federal law allows for a waiver of the civilian education requirement for promotion and not for promotion consideration and, therefore, HRC has no legal justification in implementing a "partial waiver" policy and must correct his original date of rank was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The governing law requires, in effect, that an Army Reserve officer be awarded a baccalaureate degree by a qualifying education institution in order to be promoted to a grade above first lieutenant unless he or she falls within one of five defined excepted categories in Title 10, U.S. Code, section 12205(b).  The evidence of record confirms the applicant did not fall within a legally defined excepted category and was properly promoted to captain on the date he was awarded his baccalaureate degree in accordance with the applicable law and regulation.

3.  By law, the Secretary of the Army may a grant a waiver of the civilian education requirement for promotion to any officer whose original appointment in the Army as a Reserve officer is through the Army OCS program.  Waivers under this provision are made on a case-by-case basis considering the individual circumstances of the officer involved and are within discretionary authority provided the Secretary concerned by the applicable law.  There is no evidence that the applicant applied for or was granted a waiver under this provision of the law.

4.  By law, the Secretary concerned has the authority to convene and conduct promotion selection boards and to establish qualifications not otherwise provided for by law.  The law is void of any language prohibiting civilian education waivers for promotion consideration.  Therefore, it appears well within the discretionary authority of the Secretary of the Army, as implemented by HRC, to allow a civilian education waiver for promotion consideration separate and apart from the civilian education requirement for promotion and defined exceptions and waiver authority provided in Title 10, U.S. Code, section 12205.

5.  In the ABCMR case provided by the applicant the Board provided relief to an Army Reserve officer who had been promoted to captain before 1 October 1995 who fell under an excepted category defined in Title 10, U.S. Code, section 12205(b).  There is no evidence suggesting the applicant falls under one of the five excepted categories defined in the law.  Therefore, the Board findings in that case are not applicable to the applicant.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

6.  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 has failed to submit evidence that would satisfy this requirement or that would support amendment of the original decision 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 to amend the decision of the ABCMR set forth in Docket Number AR20070012724, dated 9 December 2008.



      ____________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)                                         AR20090013316



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ABCMR Record of Proceedings (cont)                                         AR20090013316



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