RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 March 2006
      DOCKET NUMBER:  AR20050009027


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be granted a civilian education waiver
and promotion reconsideration to captain under the Reserve Components
Mandatory Selection Board 2002 criteria.

2.  The applicant states the promotion board convened on 4 November 2002.
He had completed all the courses for his degree by October 2002, but the
degree was not awarded until January 2003.  Since that was his second
appearance before the promotion board, he was given a removal date of 1
October 2003.  Because he had 18 years of service, he was allowed to
continue in the Amy National Guard (ARNG).  One month ago, he came across a
memorandum concerning a waiver of the statutory educational requirements
for promotion to captain.  Knowledge of this waiver would have changed the
outcome of the promotion board in his favor.

3.  The applicant provides his college transcripts.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Regular Army, the
applicant enlisted in the ARNG on 9 November 1993.  He was appointed a
second lieutenant in the ARNG out of Officer Candidate School (OCS) on 9
August 1995. He completed the Transportation Corps Officer Basic Course on
21 October 1996.  He was promoted to first lieutenant on 26 August 1997.

2.  The applicant apparently completed his last course for his
baccalaureate degree in October 2002 from Thomas A. Edison State College,
Trenton, NJ.  The applicant was considered for promotion to captain by a
board that convened on 12 November 2002.  His degree was awarded in January
2003.

3.  By memorandum dated 17 April 2003, the applicant was notified the
promotion selection board examined the performance portion of his official
military record but he had not been selected for promotion to captain.  His
removal date was established as not later than 1 October 2003.  Separation
orders were issued but later revoked.

4.  The applicant was considered for promotion to captain two additional
times but was notified, by memorandums dated 8 April 2004 and 1 March 2005,
that the promotion selection boards examined the performance portion of his
official military record but he had not been selected for promotion to
captain.

5.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau (NGB).  That office
recommended disapproval of the applicant's request.  That office noted the
applicant was nonselected for promotion to captain four times.  Officer
Evaluation Reports (OERs) for the periods 1 March 2002 through 31 July 2002
and 1 August 2002 through 6 June 2003, which the promotion boards saw,
stated the applicant may be best suited in his military career as a
chaplain but not as a transportation officer.  One of the OERs made a
recommendation not to promote him.  That office stated the waiver the
applicant addressed allows the promotion board to consider the officer's
record as if the officer has a degree, it does not alter the board
consideration of the rest of the officer's record.  That office stated the
applicant had been nonselected for promotion by three subsequent boards
based on the merits of his record, not because he did not have a degree.

6.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  The applicant responded by "…including the results of
a National Guard Bureau OER Appeal on the same matter.  I am appealing that
matter because I did not have access to the sworn statement made against me
or the company commanders (sic) notes on the situation."  He provided the
two OERs mentioned in the advisory opinion and provided his rebuttal to the
referral of the OER for the period ending 31 July 2002.  He also provided
22 pages, with attachments, of what might be an OER appeal (but no appeal
decision).

7.  The applicant's OER (version 67-8) history is as follows (* indicates
applicant’s senior rater (SR) potential block rating):

           OER Period Ending            SR Block Rating

           15 June 1996           1/0/*3/1/0/0/0/0/0
Part IVa (Professional Competence) contains "2" ratings (from a high of "1"
to a low of "5") in the areas of motivates, challenges, and develops
subordinates; supports EO/EEO; and clear and concise in oral communication.
 His rater rated his performance as "met requirements" (out of possible
ratings of "always exceeded requirements," "usually exceeded requirements,"
"met requirements," "often failed requirements," and "usually failed
requirements").  His rater rated his potential as "promote with
contemporaries" (out of possible ratings of "promote ahead of
contemporaries," "promote with contemporaries," "do not promote," and
"other").

            31 July 1997                0/0/1/2/*3/0/0/0/0
Part IVa contains "2" ratings in the areas of demonstrates appropriate
knowledge and expertise in assigned tasks and motivates, challenges, and
develops subordinates.  His rater rated his performance as "usually
exceeded requirements" and rated his potential as "promote with
contemporaries."

            31 July 1998                *6/0/0/0/0/0/0/0/0
Part IVa contains "1" ratings in all areas of Professional Competence.  His
rater rated his performance as "usually exceeded requirements" and rated
his potential as "promote with contemporaries."

(OERs 67-9 version)

            31 May 1999                 center of mass
His rater rated his performance and potential as "satisfactory performance,
promote" (out of possible ratings of "outstanding performance, must
promote," "satisfactory performance, promote," "unsatisfactory performance,
do not promote," and "other").  His SR rated his promotion potential as
"best qualified" (out of possible ratings of "best qualified," "fully
qualified," "do not promote," and "other").

            31 May 2000                 center of mass
His rater rated his performance and potential as "satisfactory performance,
promote."  His SR rated his promotion potential as "fully qualified."

            28 February 2002      center of mass
His rater rated his performance and potential as "satisfactory performance,
promote."  His SR rated his promotion potential as "do not promote" (with a
comment that the applicant needs to complete his bachelor's degree to be
promoted).

            31 July 2002                center of mass
His rater rated his performance and potential as "unsatisfactory
performance, do not promote."  His SR rated his promotion potential as "do
not promote" (with a comment that the applicant needs to complete his
bachelor's degree to be promoted).

            6 June 2003                 below center of mass, retain
His rater rated his performance and potential as "satisfactory performance,
promote."  His SR rated his promotion potential as "other" (with comments
that the applicant was a 2-time nonselect for promotion to captain and
might be best suited to further his military career in the Chaplain Corps
in some capacity).

8.  Comments in all OERs, where not derogatory, were lukewarm.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other than General Officers) states, in pertinent part, that no
person may be selected for promotion to the Reserve grade of captain
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.

10.  Title 10, U. S. Code, section 12205 states no person may be appointed
to a grade above the grade of first lieutenant unless that person has been
awarded a baccalaureate degree by a qualifying educational institution.
Section 12205(d) was added in Fiscal Year 2002.  This section authorizes
the Secretary of the Army to waive the requirement to have a baccalaureate
degree prior to promotion to captain for any officer who was commissioned
through the Army OCS.  The waiver would be made on a case-by-case basis and
may continue in effect for no more than two years after the waiver is
granted.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is true the applicant could have received a waiver for not having
his baccalaureate degree prior to the convene date of the November 2002
Captain promotion selection board.  However, waivers are not automatic and
are made on a case-by-case basis.  The applicant contends that knowledge of
this waiver would have changed the outcome of the promotion board in his
favor.  The applicant provides no evidence to show that he would have been
promoted.  To the contrary, in addition to the two OERs the applicant
appeared to be appealing in his rebuttal to the advisory opinion, his
previous OER history failed to reveal a competitive file.

2.  The applicant's OER for the period ending 15 June 1996 showed he was
rated as center of mass but contained several "2" ratings in the area of
Professional Competence.  His performance was rated only as "met
requirements" and his potential was rated only as "promote with
contemporaries." His OER for the period ending 31 July 1997 showed that at
best he was rated as center of mass.  He again received several "2" ratings
in the area of Professional Competence.  In addition, his performance was
rated as only "usually exceeded requirements" and his potential was rated
as only "promote with contemporaries." His OER for the period ending 31
July 1998 showed improvement, but he was still rated as center of mass, his
performance was still rated as only "usually exceeded requirements" and his
potential was still rated as only "promote with contemporaries."

3.  The applicant's OER for the period ending 31 May 1999 showed his SR
rated his potential as center of mass and his rater rated his performance
and potential as only "satisfactory performance, promote"  His OER for the
period ending      31 May 2000 showed his SR rated his potential as center
of mass (and only "fully qualified") and his rater rated his performance
and potential as only "satisfactory performance, promote."

4.  There is insufficient evidence to show the applicant would have been
granted a waiver of the civilian education requirement had he requested it
and insufficient evidence to show that it would be in the best interest of
the Government to grant one now.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jlp___  __pmt___  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.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009027                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060302                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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