RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2005 DOCKET NUMBER: AR20050001676 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. Mark D. Manning Chairperson Mr. Larry C. Bergquist Member Ms. Carmen Duncan 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 his commission as a first lieutenant (1LT) in the New York Army National Guard (ARNG) be reinstated and he be promoted to captain. He additionally requests pay and allowances for all drills, annual training, and other additional duty days that he performed as if his commission had been reinstated after completing his civilian education. 2. The applicant states that, due to human and material error, his request for enlistment was not processed in a timely manner. During the period 18 June through 5 September 1999, he had requested reversion to an enlisted status while he pursued his degree. He was considered for promotion by the Reserve Components Selection Board (RCSB) and he was passed over for the third time. However, the November 1999 board should not have considered him as he had reverted to an enlisted status by that time. He completed his degree on 1 February 2001 and reapplied for his commission. He is currently deployed as a Sergeant with the ARNG. 3. The applicant provides the 13 exhibits listed at the end of his attachment to his application. CONSIDERATION OF EVIDENCE: 1. After having had prior enlisted service in the ARNG, the applicant was appointed a second lieutenant in the ARNG on 8 June 1990. He was promoted to 1LT on 7 June 1993. 2. By letter dated 30 July 1998, the Office of Promotions, Reserve Components, U. S. Total Army Personnel Command (PERSCOM) informed the applicant he had been considered but not selected for promotion. The letter noted he had not completed the required civilian and/or military education by the day the board convened on 12 November 1997. By letter dated 5 October 1998, Headquarters, NYARNG informed the applicant he had been nonselected for promotion for the first time. 3. By letter dated 4 May 1999, the Office of Promotions, Reserve Components, PERSCOM informed the applicant he had been considered but not selected for promotion. The letter noted he had not completed the required civilian and/or military education by the date the board convened on 9 November 1998. By letter dated 7 June 1999, Headquarters, NYARNG erroneously informed the applicant he had been nonselected for promotion for the first time and the 9 November 1999 board would again consider him for promotion. 4. By letter dated 19 August 1999, the applicant requested reversion to an enlisted status to complete his civilian education. He stated, in part, "If I remain in the officer ranks then I will be passed over a second time and to avoid this I am requesting approval to revert back to the enlisted rank." 5. On 5 September 1999, the applicant was honorably discharged from the ARNG for the purpose of enlisting in the ARNG. 6. In February 2001, the applicant was awarded his baccalaureate degree. 7. Around March 2001, the applicant applied for reappointment as a commissioned officer in the ARNG. 8. On 21 November 2001, the NYARNG called the Office of Promotions, Reserve Components, PERSCOM in reference to the applicant's promotion status. On 23 November 2001, that office informed the applicant he had been considered and not selected for promotion to captain by boards that convened in November 1997 and November 1998. However, after his second nonselection he had been issued a first time nonselect letter. That office voided the erroneous letter and provided him a corrected, second time nonselect letter. The corrected letter stated, "As a result of this second nonselection, you must be discharged in accordance with title 10, U.S.C. section 14513…Retired Reserve." 9. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau. The advisory opinion noted Army Regulation 135-155 and National Guard Regulation 600-100 state no person may be selected for promotion to the grade of captain unless that person has been awarded a baccalaureate degree from an accredited institution. Army Regulation 135-155 also states that a 1LT who twice fails to be selected for promotion to the grade of captain will be removed from an active status. Army Regulation 135-175 states a 1LT who has completed his statutory military service obligation will be discharged for failure to be selected for promotion after a second consideration. 10. The advisory opinion noted no guidance could be found to indicate the applicant's requests could be approved. However, per previous guidance, the state could send NGB a request for an exception to policy to allow reappointment of a former officer, which would be forwarded to the Army G-1 for consideration if all other appointment requirements are met. 11. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond within the given time frame. 12. On 26 September 2005, the Office of Promotions, Reserve Components informed the Board analyst the applicant had been identified for consideration by the 1999 promotion board. However, his name was deleted before the board convened because he reverted to an enlisted status. 13. Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers. Chapter 2 provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel. In order to be qualified for promotion to captain, an individual must have completed 5 years time in grade as a first lieutenant, completed resident officer basic course, and have a baccalaureate degree on or before the convening date of the respective promotion board. 14. Army Regulation 135-155, chapter 4 states selection board action is administratively final. It states if removal from an active Reserve status is required by law, the officer must be removed within the prescribed time limit established for removal. 15. Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers of the Army) provides guidance on the eligibility criteria for appointment of Reserve officers. Paragraph 1-7 states commissioned officers twice passed over for promotion are not eligible for appointment. 16. Army Regulation 135-175 (Separation of Officers) states, in pertinent part, officers in the grade of first lieutenant, captain, or major, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after the second consideration by a Department of the Army Reserve Components Selection Board. 17. Title 10, U. S. Code, section 14504 states an Army first lieutenant who has failed selection for promotion to the next higher grade for the second time shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. DISCUSSION AND CONCLUSIONS: 1. The evidence shows the applicant was first considered for promotion to captain by the board that convened in November 1997. The evidence shows he was considered for the second time for promotion to captain by the board that convened in November 1998. 2. The Office of Promotions, Reserve Components, PERSCOM letter dated 4 May 1999 failed to inform the applicant he had been considered but not selected for promotion for the second time. The Headquarters, NYARNG letter dated 7 June 1999 erroneously informed him he had been nonselected for promotion for the first time and the 9 November 1999 board would again consider him for promotion. Nevertheless, the applicant provides no evidence to show he was not aware he had been considered but nonselected for promotion by the board that convened in November 1997 thereby making his nonselection for promotion by the November 1998 board his second nonselection. 3. The available evidence shows the applicant requested reversion to an enlisted status in August 1999, after he had been nonselected for promotion for the second time. Even a request for reversion on the earliest date he mentioned, 18 June 1999, was after he had been twice nonselected for promotion. Therefore, until recently the applicant did not meet the regulatory eligibility criteria for reappointment as a 1LT in the Reserve Components. 4. It would not be equitable to grant the relief requested (in effect, reinstatement retroactive to February 2001, promotion, and back pay and allowances). However, in accordance with the information provided in the advisory opinion the applicant may request the state send NGB a request for an exception to policy to allow his reappointment, which would be forwarded to Headquarters, Department of the Army for consideration if all other appointment requirements are met. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __mdm___ __lcb___ __cd____ 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. __Mark D. Manning_____ CHAIRPERSON INDEX CASE ID AR20050001676 SUFFIX RECON DATE BOARDED 20051004 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 102.09 2. 3. 4. 5. 6.