PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001052119


         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. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Roger W. Able		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.

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2. The applicant requests reconsideration of his application to correct his records by adjusting his date of rank and mandatory release date. He also requests to have his records referred to a standby promotion board.

3. The applicant states, in effect, that his withdrawal from the Health Professions Scholarship Program (HPSP) was not handled properly and that as a result he has been inappropriately considered by two mandatory promotion boards and has been twice non-selected for promotion to major (MAJ). The applicant states that in 1991, and then again in 1996, he attempted to determine his proper status in the Army Reserve (USAR) and to determine if he could be reinstated as a captain in the Corps of Engineers (EN).

4. The applicant submits a packet of material, including a copy of the Board’s prior decision, copies of leave and earnings statements for the period 1 August 1985 through 30 June 1986, a copy of a certificate of course completion from August 1989, an NGB Form 23A (Army National Guard Annual Statement), an Army Reserve Personnel Command Chronological Statement of Retirement Points (ARPC Form 249-2-E), an Officer Evaluation Report for the year ending 31 December 1999, a letter of recommendation from the Commander, 42^nd Infantry Division, and a copy of his 8 July 2000 graduation certificate from the Combined Arms and Services Staff School (CAS3).

5. The applicant was contacted by a staff member of the Board with a request to submit a copy of his HPSP contract. At that time he was also advised that his requested actions would potentially cause a loss of creditable service toward his Reserve retirement and that other administrative actions would be necessary that would change his length of service and other administrative factors in his record. He stated that he was willing to accept these changes for the greater benefit that a favorable correction of his records would bring to him. The HPSP form was received in addition to a personal statement wherein the applicant indicated that he had been made aware of the possible results of his request and that it might result in the loss of one creditable year towards entitlement to a Reserve Retirement and other administrative actions.

6. These documents were not previously available to the Board and constitute new evidence that requires Board review.

7. The Memorandum of Consideration reflecting the Board’s 1 December 1999 review of the case (AR1999018610) is incorporated herein by reference as if wholly set forth.

8. As noted in the Board’s prior review, the applicant’s record shows that he was commissioned out of the United States Military Academy and entered active duty on 6 June 1979. He was promoted to captain (CPT) on 1 June 1983. He was released from active duty on 15 February 1985 and appointed as a captain in the USAR. On 3 March 1988, the applicant signed a service agreement with the intent to participate in the HPSP. This action necessitated that he submit an unqualified resignation of his commission, as a captain, which he did in May of 1988. The applicant was commissioned a second lieutenant (2LT), Medical Service Corps (MSC) on 31 May 1988 and orders published on 28 August 1988 assigned him to the USAR Control Group (OADO) (Officer Active Duty Obligor) for participation in the HPSP. However, prior to commencing the HPSP he declined to accept the scholarship and officially withdrew from the program on 20 September 1988.

9. On 11 August 1989, the applicant received notification that he had successfully completed Phase I of CAS3 with a comprehensive examination score of 96.

10. On 28 August 1996, the Total Army Personnel Command (PERSCOM) notified the applicant that, effective 26 August 1996, his appointment as a Reserve commissioned officer under the HPSP was revoked. The notice stated that this was due to his declining the scholarship, which made his MSC appointment invalid. He was informed he would retain his USAR commission, as a captain in the Corps of Engineers, and would be placed in the Individual Ready Reserve (IRR).

11. The Army Reserve Personnel Command, St. Louis, Missouri, (ARPERSCOM) issued orders (C-01-703471) releasing the applicant from the USAR Control Group (AT) (Annual Training) and assigning him to the USAR Control Group (REINF) (Reinforcement) effective 28 January 1997.

12. The applicant was non-selected for promotion to major by the 1998 and 1999 mandatory promotion boards. Following the non-selection for promotion, the applicant requested that this Board correct his records to reflect that the period he was in a questionable status not be considered toward his mandatory promotion date.

13. On 1 January 1999, the applicant transferred from the USAR to the New York Army National Guard (NYARNG). He executed an oath of office and received Federal Recognition as of that date. The applicant continues to participate as an active member of the NYARNG to this date.

14. The applicant received notice of his successful completion of the Reserve Component Staff Process Course (CSP) of CAS3 on 26 July 2000.

15. On 15 March 2001, ARPERSCOM issued orders (C-08-922293R) retroactively revoking the orders of C-08-922293 ARPERSCOM, 26 August 1988, which had reassigned the applicant to the HPSP as a 2LT MSC and reinstating him to his prior status as a CPT (EN).
16. Records of the ARNG show the applicant’s periods of service as 6 June 1979 to 15 February 1985 - Regular Army (RA), 16 February 1985 to 31 December 1998 - Army Reserve (USAR) and 1 January 1999 to the present - NYARNG. A copy of the applicant’s ARPC Form 249-2-E shows the applicant as having been in the USAR from 16 February 1985 until 15 February 1999 with only the year ending 15 February 1990, being a qualifying year toward a Reserve retirement.

17. A staff member of the Board contacted the HPSP administrative support division in an attempt to locate additional records. The support division indicated that, since the applicant had withdrawn prior to entering the program, there were no records retained on him. They further indicated that, since the government had not incurred any expenses, the applicant would not have incurred any obligated service. Additionally, if his case had been properly handled, his commission (2LT) should have been revoked and he should have been issued an unconditional separation.

18. Army Regulation 135-155, prescribes the policies and procedures for promotion of Reserve officers. Section 2-2, Inactive and active status, states that an officer will not be considered for a Reserve promotion until at least 1 year after the date of return to an active status. Section 2-7 sets forth the requirements for mandatory selection boards and notes that service requirements for promotion from CPT to MAJ as 7 years in grade and 12 years of commissioned service. Section 3-13(2)(a), states that an officer’s name will be removed from the selection board list if the officer was not in an active status.

19. Army Regulation 140-10, chapter 8, prescribes the policies and procedures for the Standby Reserve. Section 8-3, Inactive Standby Reserve Status, in part, states that personnel on the Inactive Standby Reserve List are not eligible for promotion and other personnel considerations.

CONCLUSIONS:

1. By withdrawing from the HPSP prior to participating in the program or incurring any costs to the government, the applicant did not incur any additional obligated service requirements. While this withdrawal rendered the applicant’s commission, as a 2LT MSC, null and void, it did not invalidate his resignation from his prior commissioned officer status.

2. The applicant was erroneously retained in the USAR following his declining to participate in the HPSP. Had the applicant’s records been properly handled, his 2LT MSC commission would have been revoked and he would have received an unconditional separation at that time.

3. The fact that his commission as a 2LT was subsequently revoked does not negate the fact that he was improperly retained in a Reserve status for over 8 years.

4. The PERSCOM action of 28 August 1996 was improper. There is no provision for an automatic reversion to his prior status in either his resignation paper work or the program provisions for participation in HPSP.

5. The applicant’s status was further confused when he was shown to have participated in CAS3 Phase I, as a CPT, while he was still being carried on the rolls as an MSC 2LT, the year following when he should have been separated and 7 years before orders were issued revoking his HPSP commission and reinstating him as a CPT (EN).

6. The Board concludes that while the applicant could and probably should have been more active in getting an official determination of his status, the evidence shows that the Army’s actions, inactions, and misinformation supplied to the applicant outweighs the applicant’s limited actions to resolve this issue.

7. The Board concludes that the multiple errors and improper or incomplete actions on the part of the Army have created an injustice that requires relief.

8. To correct the applicant’s records to reflect that he was separated at the time he withdrew from the HPSP would deprive the applicant of over eight years of longevity and would compromise his current status in the NYARNG. It is the Board’s policy not to take actions that would be detrimental to an applicant; however, the Board determines that it would be in the interest of justice and equity to compromise between what was done and what should have been done.

9. To correct the applicant’s records to properly reflect the same type of actions as were improperly taken, requires that the Board place the applicant in a status which approximates the actions that did occur. The Board has determined that the closest status would be the Inactive Standby Reserve and that it would be equitable to declare the period in question as such.

10. To facilitate this action the Board concludes that the applicant’s records should be corrected as follows:

         a. by vacating the applicant’s 31 May 1988 commission as a 2LT MSC;

b. by voiding his 30 May 1988 USAR resignation;

c. by showing that he was reinstated as a CPT (EN) on 30 May 1988;

d. by transferring him to the USAR Control Group (Reinf) effective 30 May 1988;

e. by transferring him to the USAR Control Group (Inactive) effective 1 June 1989;

f. by transferring him to the USAR Control Group (Reinf) effective 1 December 1998;

g. by showing that he was transferred to the NYARNG on 1 January 1999, with an execution of an oath of office and receipt of Federal Recognition as of that date.

11. As members on the Inactive Standby Reserve List are not eligible for promotion, this invalidates the applicant’s referral to the 1998 and 1999 mandatory promotion boards as his name would not have been before these boards. Therefore, all reference to his being twice passed over for promotion should be purged from his records.

12. These actions will deprive the applicant of one creditable year toward a Reserve retirement. The applicant has agreed to this loss of retirement credit. The provisions of Reserve retirement credit for courses undertaken in a Standby Reserve status allow personnel to complete courses but does not allow for retirement credit being granted for these courses. The Board therefore concludes that it is appropriate to continue to show that the applicant completed the Combined Arms and Services Staff School Phase I course but without Reserve retirement credit.

13. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected;

a. by vacating his 2LT (MSC) commission of 31 May 1988;

b. by voiding the 30 May 1988 USAR discharge;

c. by reinstating the individual concerned as a captain, (EN) effective 30 May 1988;

d. by transferring him to the USAR Control Group (Reinf) effective 30 May 1988;
e. by transferring him to the USAR Control Group (Inactive) effective 1 June 1989;

f. by transferring him to the USAR Control Group (Reinf) effective 1 December 1998

g. by showing that he was transferred to the NYARNG on 1 January 1999, with an execution of an oath of office and receipt of Federal Recognition as of that date;

h. by removing his name from the list of officers considered for promotion by the 1998 and 1999 mandatory promotion boards;

i. by purging his records of all reference to the two promotion non-selections; and,

j. by adjusting his date of rank, effective date of rank, mandatory release date, pay entry date, date for mandatory promotion review and any other administrative adjustments to reflect the above corrections as necessary.


BOARD VOTE:

__JH ___ __KAK___ ___RWA_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____June Hajjar ___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001052119
SUFFIX
RECON
DATE BOARDED	20020205
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	134.00
2.	102.01
3.	102.07
4.
5.
6.