MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 October 2001
         DOCKET NUMBER: AR2001058546

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Jose A. Martinez		Member
Mr. Mark D. Manning		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: That he be reinstated in the Ready Reserve with promotion to major and the option to attend medical school. He also requests entitlement to back pay, a letter of apology, and that he be allowed to continue his military career.

APPLICANT STATES: That he could not attend his scheduled officer basic course because of the death of his father and brother. He had to attend to the family arrangements and legal matters. He was to be scheduled for a later class. He contacted his career management officials on numerous occasions but was told there was no money. His career was destroyed by their mismanagement. He provides copies of documents from his military records, an undated letter to a Member of Congress, an Affidavit showing that his father died on 18 August 1990, and that he and his brother were the sole heirs, and a Letter of Administration appointing him as Administrator of his father’s estate.

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

He was appointed a Medical Specialist second lieutenant in the Army National Guard (ARNG) effective 29 July 1991, and assigned as a medical assistant (67B) in an infantry battalion. Effective 14 August 1992, he was separated from the ARNG and transferred to the Army Reserve (USAR) Control Group (Reinforcement) as a non-unit, obligated officer. His Report of Separation from the ARNG showed that he had completed 6 years, 11 months, and 15 days of total service and that his Reserve service obligation would be completed on 29 August 1993.

Information provided by the Army Reserve Personnel Command (AR-PERSCOM) shows that the applicant was scheduled for the Medical Specialist (MS) Officer Basic Course (OBC) in September 1992, but he failed to report. There is no information available to show the reason for his non-attendance. A promotion memorandum was issued on 24 August 1994, which promoted the applicant to first lieutenant effective 28 July 1994. Telephonic information provided by the Reserve Component Promotions Branch indicates that the applicant was incorrectly coded as an obligated officer who could be promoted to first lieutenant without completion of an OBC.

On an unknown date in 1995, the applicant was rescheduled for OBC attendance. On 6 November 1995, the applicant was informed by letter that his OBC attendance was cancelled due to budget limitations. He was also encouraged to obtain a unit assignment. Effective 21 May 1999 the applicant was reassigned to the ARNG. The National Guard order shows his rank as captain but there is no evidence that he was ever promoted to captain in the Reserve Components.



A promotion status memorandum was issued to the applicant on 25 July 2000, which notified him that he had not been selected for promotion to captain by the Calendar Year 2000 (CY00) Reserve Components Selection Board (RCSB). He was also notified that this was his second nonselection for promotion and he would be discharged in accordance with law and regulation. Effective 1 May 2001 the applicant was discharged for twice failing selection for promotion to captain.

A summary of retirement points earned by the applicant shows that he performed no duties creditable for retirement point purposes from 15 August 1991 to 21 May 1999, including inactive duty for training, correspondence courses, annual training, active duty for training, or active duty. None of his last 9 years of Reserve Component service are qualifying years for retirement.

The applicant provided a copy of an Affidavit executed by he and his brother that attests that they are the sole heirs of the estate of their father who died on 18 August 1990. It appears to show that they are entitled to take possession of the family home. The form was executed on 24 April 1992. The court issued a Letter of Administration on 18 December 1992, which names the applicant as the Administrator of his father’s estate.

The applicant provided a copy of his letter to a Member of Congress wherein he requested a “Congressional Inquiry”. The basis of his complaint was that he had not been rescheduled for OBC and was being discharged for promotion nonselection. He believed his situation occurred because of poor management and misconduct. The Office of the Chief of Legislative Liaison provided a copy of the reply to the Member of Congress. The reply noted that the applicant was aware at the time of his appointment that he was required to complete an OBC within 36 months, that he was scheduled to attend an OBC in September 1992, but he failed to report. They acknowledged that his rescheduled OBC in 1996 was cancelled due to budget limitations, however, that did not alter his required separation for failure of selection for promotion.

Army Regulation 135-155 provides the policy for promotion in the Reserve Components. Chapter 2 of the regulation states that promotion from second lieutenant to first lieutenant requires 3 years in the lower grade and that completion of the appropriate OBC is required within 3 years after appointment.

Army Regulation 135-175 provides the policy for the separation of Reserve Component officers. Chapter 4 of the regulation requires removal from an active status when an officer fails to complete a basic branch (OBC) course within 36 months of the date of appointment.


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

1. The applicant was appointed in the ARNG on 29 July 1991, and knew, or should have known, that he had 36 months to complete his OBC. It is not clear how the death of his father, over 11 months prior to his appointment, impacted his ability to perform his military obligation. He provides no information of the date of his brother’s death.

2. The applicant was erroneously promoted to first lieutenant because of a coding error. He was required to complete his OBC by July 1994, but failed to do so. The cancellation of his second scheduled OBC date in FY96 was not a factor in his removal since he should have been separated in July 1994.

3. The applicant is not entitled to reinstatement in the Ready Reserve as a commissioned officer, is not entitled to any back pay for service he did not perform, or a letter of apology.

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

5. 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

___jl___ ___jm___ ___mm____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058546
SUFFIX
RECON
DATE BOARDED	20011011
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	102.09
2.
3.
4.
5.
6.