APPLICANT REQUESTS:  In effect, that he be retained in an active Reserve status and that he be reconsidered for promotion to the rank of captain after he receives at least one additional officer evaluation report from his Reserve unit.

APPLICANT STATES:  In effect, that he was unaware that he was being considered for promotion to the rank of captain until he received notification of his nonselection and impending discharge on 12 June 1995.  He further states that he had difficulty obtaining his promotion orders for promotion to first lieutenant and even more difficulty in finding a Reserve unit he could join.  However, he was able to find a unit in Seoul, Korea, where he could fulfill the unit’s needs and would allow him to branch transfer.  He goes on to state that he desires to continue his affiliation with the USAR and would like to be retained in an active Reserve status until such time as he can branch transfer and has time to receive at least one OER in his current position. 

COUNSEL CONTENDS:VFW COMMENTS 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was commissioned as a USAR second lieutenant on 19 December 1987.  He completed the engineer officer basic course in March 1989 and was subsequently promoted to the rank of first lieutenant on 18 December 1990.

He was considered for promotion to the rank of captain by the 1994 and 1995 Department of the Army Reserve Components Selection Boards and was not selected.  Consequently, the applicant was notified that he was to be discharged from the USAR as a result of his nonselection.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Army Reserve Personnel Center (ARPERCEN).  It opined, in effect, that the applicant’s records were complete (as best as could be determined) when seen by the selection boards and that the applicant had no basis for reconsideration by a Standby Advisory Board.

Army Regulation 135-175, in effect at the time, set forth the basic authority for the separation of Reserve Component officer personnel.  Chapter 4 of that regulation describes the conditions under which Army Reserve officers may be discharged from their status as Reserves of the Army.  

Paragraph 4-4a of that regulation provides, in pertinent part, that members of the Army Reserve will be removed from an active status and discharged or transferred to the Retired Reserve (if eligible), within 90 days after the board reports its findings, for nonselection for promotion after the second consideration by a Department of the Army Reserve Components selection board if the officer is in the grade of first lieutenant, captain or major (Title 10, U.S. Code, section 3846).

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  While it is unfortunate that the applicant has been unable to actively participate in the USAR, his inability to do so does not constitute an error or injustice on the part of the Department.  Inasmuch as he has failed to show that his discharge from the USAR based on his being twice nonselected for promotion to the rank of captain was the result of an error or injustice, there is no basis to allow him to remain in an active Reserve status. 

3.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director