PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 November 2001
         DOCKET NUMBER: AR2001057195


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		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.

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2. The applicant requests, in effect, that his records be corrected to show that he was discharged from the United States Army Reserve (USAR) upon completion of his 8-year statutory service obligation instead of being discharged after being twice nonselected for promotion to the rank of major.

3. The applicant states, in effect, that he was twice nonselected for promotion to the rank of major in the USAR and was subsequently discharged as a result thereof. He goes on to state that at the time he resigned his Regular Army commission and accepted a USAR commission, he was told that as an inactive Individual Ready Reserve (IRR) soldier, he simply had to do nothing but wait until he was called for a national emergency. He continues by stating that he did exactly as he was told and it was not until he was notified that he had been twice nonselected for promotion to the rank of major because he was not educationally qualified, that he discovered that his records did not indicate that he was a college graduate. Additionally, although he was unaware that he could be promoted while in the IRR, he discovered that he was required to complete the advanced course and the Combined Arms Staff 3 (CAS3) course. He also states that had he known this information beforehand he would have completed the necessary requirements or resigned when he completed his 8-year obligation. Notwithstanding this information, he was also informed that even if he were given a relook for promotion, in all likelihood he would not be selected because he had “no evaluatable activity” while he was in the IRR. He further states that he has been successful in his career and had decided to pursue a position with the Air Force Reserve as a pilot with a search and rescue unit. He was accepted for the position and was tentatively scheduled to attend flight refresher training; however, once it was determined that he was a twice nonselected USAR officer, the Air Force could not accept him. Accordingly, he believes that the only way he can continue to serve his country is to have his records corrected to show that he resigned his USAR commission upon completion of his 8-year statutory service obligation. In support of his application he provides an in-depth explanation of the events that led to his discharge from the USAR, his acceptance by the Air Force, a legal review by the Air Force indicating that he cannot be accepted as a twice non-selected USAR officer, letters of recommendation, and copies of his accomplishments and commendations while on active duty.

4. The applicant’s military records show that he was a Distinguished Military Graduate (DMG) upon graduation from the Reserve Officer Training Corps (ROTC) and was commissioned as a USAR second lieutenant on 7 May 1988. He was ordered to active duty on 11 January 1989 and accepted a Regular Army commission as an aviation branch officer on 27 April 1989. He attended and completed the aviation officer basic course at Fort Rucker, Alabama and then attended the Rotory Wing Aviator Course, where he was designated the distinguished graduate. He was then transferred to Fort Bragg, North Carolina and was promoted to the rank of captain on 1 May 1993.
5. The applicant’s records show that he was rated in the top block (maximum ratings) in all of his officer evaluation reports.

6. On 15 October 1993, the applicant submitted a request for unqualified resignation in order to pursue graduate studies and a civilian career. His request was approved on 6 December 1993 for separation on 1 April 1994.

7. On 1 April 1994 he was honorably discharged for miscellaneous/general reasons. He had served 5 years, 2 months and 21 days of total active service and was awarded the Meritorious Service Medal, the Army Commendation Medal with one oak leaf cluster, the National Defense Service Medal, the Southwest Asia Service Medal, the Air Medal, the Humanitarian Service Medal, the Kuwait Liberation Medal, the Army Service Ribbon, the Air Assault Badge, the Army Aviator Badge, and the Parachutist Badge.

8. The applicant also accepted a USAR appointment on 1 April 1994 with the understanding that he could not resign his USAR status until completion of 8 years of service.

9. On 24 August 2000, the Army Reserve Personnel Command (ARPERSCOM) notified the applicant that he had been twice nonselected for promotion to the rank of major and that he would be discharged from the USAR. On 29 September 2001, the ARPERSCOM published orders # D-09-053797 discharging the applicant from the USAR, effective 31 January 2001. A review of his Official Military Personnel File fails to reveal when the first notice of nonselection was sent to the applicant.

10. A review of the applicant’s OMPF also fails to show that the applicant was ever notified of his requirement to actively participate or the necessity to pursue additional schooling in order to be competitive for promotion in the IRR. Likewise, his records show no activity on his part while assigned to the IRR.

11. A review of the documents submitted by the applicant regarding his acceptance by the Air Force Reserve indicates that he was in fact accepted for a position with the 301^st Rescue Squadron at Patrick Air Force Base, Florida. However, in a legal opinion obtained from the Air Force Reserve Command, the Director of Military Law opined, in effect, that because the applicant had been twice nonselected for promotion and had in effect met the maximum years of service for his grade, the provisions of law that apply indicate that he should not be accepted.

12. In the processing of this case an advisory opinion was obtained from the ARPERSCOM which opined, in effect, that the applicant had been properly discharged as result of being twice non-selected for promotion. The opinion was provided to the applicant who responded with a rebuttal to the effect that he was unaware he was being considered for promotion or that he had to meet any criteria for consideration. He also contended that he should not have been considered for promotion if he was not eligible and that he should have been notified long before he was eligible that he should be doing something to remain competitive for promotion.

13. Army Regulation 135-91 (USAR Service Obligations, methods of Fulfillment, Participation Requirements and Enforcement Procedures) provides, in effect, that soldiers assigned to the IRR should receive an orientation that makes soldiers aware of their service obligations as assigned soldiers to the IRR. Soldiers should also be aware of the prerequisites for satisfactory participation and the actions that may result from unsatisfactory participation.

CONCLUSIONS:

1. Although the Board does not discount that the applicant had some responsibility in maintaining contact with the ARPERSCOM and obtaining career advice from his personnel management officer (PMO) just as he did while he was on active duty, the Board also finds that the Department did not fulfill its obligation to, properly inform him of the requirements necessary to remain active and competitive in the IRR. Accordingly, he was doomed to failure without his knowledge by the time he became eligible for promotion consideration.

2. Given the applicant’s excellent record of service and performance while on active duty, the Board is inclined to believe the applicant’s contention that he was unaware that he had to remain competitive while in the IRR.

3. The Board also finds that given his excellent record of service and desire to serve his country as a pilot, it would be in the interest of justice to remove the barriers that prevent him from doing so. This is especially important since the Department contributed to the building of the barriers.

4. Accordingly, the Board finds that since he did not actively participate in the IRR based on what he was informed was required of him, he should be allowed to resign his USAR commission effective the date he completed his 8-year statutory service obligation (6 May 1996).

5. In doing so, all references to his being nonselected for promotion should also be removed from his records and any credits afforded him for enrollment in the IRR after May 1996 should also be removed. In addition, his discharge of 31 January 2001 from the USAR should be voided and replaced with his discharge of 1996, once a request for resignation from the USAR is received from the applicant.

6. 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:

a. by allowing the individual concerned to submit a resignation of his USAR commission effective upon completion of his 8-year statutory service obligation and discharging him effective the same date.

b. by voiding his discharge from the USAR effective 31 January 2001 and removing all indications from his records which indicate that he was nonselected for promotion.

BOARD VOTE:

___jm___ ___ao___ ___le ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001057195
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/27
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 190	110.0100/chg disch date
2.
3.
4.
5.
6.