PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 November 2002
	DOCKET NUMBER:   AR2002079633

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in an amended application dated 28 October 2002, in effect, that his records be corrected to show he was honorably discharged from the United States Army Reserve (USAR) on 5 March 2001, and that all documents and references to his twice being not selected for promotion to major (MAJ) be removed from his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that after being advised by the Board staff that the original relief being considered would result in preventing him from immediately entering the Kentucky Air National Guard, he now requests that he be discharged prior to 6 March 2001, the date the 2001 Department of the Army (DA) Reserve Component (RC) Major (MAJ) Promotion Selection Board convened.  He claims that this earlier discharge date would negate his second non-selection to MAJ and afford him the opportunity to once again serve our military and country in the Air National Guard.  He states that the Kentucky Air National Guard has offered him a position that is being held pending the outcome of this Board.  He also states that he recognizes that this modification to his discharge may require that any drill pay he received after the requested May 2001 discharge date established may be recouped if the Board does not believe that the USAR should pay for these drills.  He concludes that he is ready and willing to repay this drill pay in order to join the Kentucky Air National Guard.  

4.  The applicant’s military record shows that he was appointed a second lieutenant in the United States Army Reserve (USAR) on 22 February 1990.  He served on active duty in a commissioned officer status until 4 April 1997, at which time he was honorably separated, in the rank of captain, and transferred to a Troop Program Unit (TPU) of the USAR.  

5.  An official copy of a transcript provided by the applicant, issued by the College of Saint Benedict, St. Joseph, Minnesota, dated 28 June 1989, confirms that he completed the requirements for a Bachelor of Arts (BA) Degree.  

6.  On 10 August 2000, the Total Army Personnel Command (PERSCOM), 
St. Louis, Missouri, notified the applicant that he had been considered for promotion by the 2000 Department of the Army (DA) MAJ RC, Promotion Selection Board that convened on 7 March 2000; however, he had not been selected for promotion.  He was also informed that his records reviewed by the promotion board did not indicate that he had completed the required civilian and/or military education by the date the board convened.  

7.  On 26 July 2001, the PERSCOM, St. Louis, notified the applicant that he had been considered for promotion by the 2001 DA MAJ RC, Promotion Selection Board that convened on 6 March 2001; however, he had not been selected for promotion.  The applicant was also informed that by law, as a result of this second non-selection for promotion, he must be discharged from the USAR and that his removal date had been established as 1 January 2002.  
8.  On 1 August 2001, Orders Number D-08-138598, published by the Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, directed the applicant’s honorable discharge from the USAR, effective 1 January 2002.

9.  On 24 September 2002, the applicant applied to this Board requesting that he be reconsidered for promotion to MAJ.  He based his application on the fact that his records that were reviewed by the promotion boards in 2000 and 2001 did not include his college transcript that confirmed that he had completed his baccalaureate degree prior to the convening date of the promotion boards.  

10.  In connection with the processing of this case, the Board referred the application to the Chief Special Actions, Office of Promotions, RC, PERSCOM, St. Louis, for administrative correction and/or an advisory opinion.  On 4 October 2002, an advisory opinion was provided by this RC promotion official that confirmed that the applicant had provided sufficient evidence to show that he had completed the education requirements for promotion to MAJ prior to the convening dates of the promotion boards in question.  As a result, administrative corrective action would by taken.  Promotion officials will place the applicant’s corrected record before a SSB for promotion reconsideration under the criteria used by the 2000 and 2001 DA MAJ RC Promotion Selection Boards.  Promotion officials indicated that the applicant’s case would be worked in the date order it had been received.  They further stated that the record would be considered by a SSB in the near future, and the applicant would be notified by mail of the results. 

11.  On 11 October 2002, the applicant provided his concurrence with the findings and recommendations of the PERSCOM, St. Louis, advisory opinion.  However, the applicant was informed that he would have to remain in the USAR in order to receive promotion reconsideration by a SSB, which would prevent his immediate entry into the Kentucky Air National Guard.  Based on this knowledge, the applicant submitted the amended application now being considered by the Board.  

CONCLUSIONS:

1.  The Board notes the applicant’s amended application request that he be honorably discharged from the USAR prior to the 6 March 2001, the date of the 2001 DA MAJ RC, Promotion Selection Board convened, which would negate his second non-selection for promotion to MAJ and allow his entry into the Kentucky Air National Guard; and it finds this request has merit.  

2.  The evidence of record confirms that the applicant’s record contained a material error when it was placed before both the 2000 and 2001 DA MAJ RC Promotion Selection Boards.  As a result, RC promotion officials confirm that he is entitled to have his corrected record placed before a SSB for promotion reconsideration under the criteria used by both the 2000 and 2001 promotions boards.  

3.  In the opinion of the Board, based on this material error in his record, the applicant was unfairly categorized as a two time non-select for promotion to MAJ, and as a result he was unjustly discharged from the USAR on 1 January 2002.  

4.  The Board finds that it would be extremely unfair to deny the applicant the opportunity to serve in the Kentucky Air National Guard while he awaits the decision of a SSB.  Therefore, based on his amended application request, the Board concludes that it would be appropriate to correct his record to show that he was discharged from the USAR on 5 March 2001.  

5.  In addition, the Board finds that it would also be appropriate to expunge all documents and references to his second non-selection for promotion in 2001, and to his twice being passed over for promotion to MAJ from his OMPF.  This will allow him to immediately enter the Kentucky Air National Guard in the position he now seeks. 

6.  In light of the errors and injustice served upon the applicant as a result of the material error contained in his record, which resulted in his unjustly being categorized as a two time non-select for promotion to MAJ, the Board finds that it would be inherently unfair to burden him with a debt based on the corrective action taken by this Board.  Therefore, the Board concludes that, given he actually performed the duties required of him during all the drills he attended subsequent to the corrected discharge date of 5 March 2001, any debt he incurs as a result of receiving drill pay subsequent to the date of discharge being recommended by this Board, 5 March 2001, should remitted/cancelled in the interest of justice and equity.  

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was honorably discharged from the USAR on 5 March 2001; by expunging all entries and documents related this second non-selection for promotion to MAJ, to his twice being not selected for promotion, and to his 1 January 2002 discharge from the USAR from his OMPF; and by remitting/canceling any debt he incurs as a result of drill pay he received subsequent to his corrected 5 March 2001 discharge date.

BOARD VOTE:  

__MHM__  __ENA __  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Melvin H. Meyer__
		      CHAIRPERSON

INDEX

CASE ID	AR2002079633	
SUFFIX		
RECON		
DATE BOARDED	2002/11/05	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1 January 2002	
DISCHARGE AUTHORITY	AR 135-175 	
DISCHARGE REASON	Two Time Non-Select	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400	
2.		
3.		
4.		
5.		
6.