MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001064206

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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: In effect, that his 2 February 2001, discharge from the United States Army Reserve (USAR) be voided, that he be placed on the Retired List effective 30 January 1993, and that his records be corrected to show that he was not eligible for promotion or twice non-selected for promotion to the rank of major.

APPLICANT STATES: In effect, that his goal after completing his service obligation was to remain eligible for recall if needed, but not compete for promotion. He continues by stating that he never intended to be kept in a status where he would be considered for promotion and he never completed or attempted to complete any of the requirements necessary to compete for promotion. Accordingly, he believes that he should have been transferred to the Retired Reserve at the end of his obligation. He goes on to state that while he was notified of his discharge on 12 January 2001, he was not aware of what it actually meant until 26 September 2001, when he attempted to join a National Guard unit in Oklahoma and was informed that because he was twice non-selected for promotion, he was unable to join an Army unit again.

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

He enlisted on 26 March 1985, for a period of 4 years, under the Airborne Training, Cash Enlistment Bonus and College Fund Enlistment Programs. He successfully completed his training and continued to serve on active duty until he graduated from Officer Candidate School (OCS) and was honorably discharged on 17 December 1986, for the purpose of accepting a commission in the USAR. He had served 1 year, 8 months and 22 days of total active service.

On 18 December 1986, he was commissioned as a USAR second lieutenant with a concurrent call to active duty. He completed his training as a field artillery officer and was transferred to Alaska. He was promoted to the rank of first lieutenant on 18 December 1988 and remained on active duty until 28 June 1990, when he was honorably released from active duty (REFRAD) for miscellaneous reasons. He had served 3 years, 6 months and 11 days of active service as a commissioned officer. He was transferred to the USAR Control Group (Reinforcement) and was promoted to the rank of captain on 17 December 1992.

At the time of his separation he gave a mailing address in Connecticut. At the time of his promotion to the rank of captain, he had a mailing address in Virginia and he currently has a mailing address in Oklahoma.

A review of his Official Military Personnel File (OMPF) reveals that the applicant has an excellent record of service during his tenure on active duty in both an enlisted and commissioned officer status. There is no evidence in his OMPF to show when he was discharged or the reasons for his discharge.
Army Regulation 135-155 prescribes the policies and procedures used in the selection and promotion of commissioned officers in the National Guard and USAR. It provides, in pertinent part, that officers serving in the rank of captain will be considered by mandatory promotion selection boards to the rank of major, once they have at least 7 years time in grade and at least 12 years of commissioned service. It also provides that in order to be promoted to the rank of major in the USAR, the officer must have completed an officer advance course. An officer who is twice non-selected for promotion to the rank of major will not be considered again for promotion. The selection board action is administratively final and if removal from active Reserve status is required by law, the officer must be removed within the prescribed time limits established by law. USAR officers who are twice non-selected for promotion will be discharged or transferred to the Retired Reserve if they are eligible and request such a transfer.

Army Regulation 140-10 provides the policies and procedures for assigning, attaching, removing and transferring USAR soldiers. It provides, in pertinent part, that assignment to the USAR Control Group (Retired) is authorized upon an individual’s request, provided the individual is entitled to receive Retired Pay from the Armed Forces because of prior military service, has completed a total of 20 years of active or inactive service in the Armed Forces, is medically disqualified for active duty resulting from a service-connected disability, or appointment was tendered on condition the soldier immediately apply for transfer to the Retired reserve, or has reached the age of 37, completed a minimum of 8 years of qualifying service, or completed 10 or more years of active Federal commissioned service, or is medically disqualified not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. It also provides, in effect, that officers who have fulfilled their statutory military service obligation and have been twice non-selected for promotion to the rank of major will be removed (discharged or transferred to Retired Reserve, if eligible and applies).

Army Regulation 135-175, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the separation of commissioned officers from the Reserve Components. It provides, in pertinent part, that orders discharging a soldier will not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud. After the effective date of discharge, orders may be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

That regulation also provides, in pertinent part, the provisions under which a USAR commission is vacated. It provides, in pertinent part, that a USAR commission is vacated (voluntarily) once a member enters into a status that is not compatible with USAR service. It may be vacated involuntarily under provisions of law and regulations for such reasons as failure to meet educational qualifications or failure to be selected for promotion.

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. 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 the aforementioned requirement.

2. Although the Board understands the applicant’s desire to return, the applicant has not submitted any evidence to show that he was eligible for and requested transfer to the Retired Reserve prior to his discharge. Inasmuch as it does not appear that he was eligible for transfer to the Retired Reserve, the Board finds, in the absence of evidence to the contrary, it must be presumed that he was properly discharged from the USAR in accordance with law and regulations applicable at the time.

3. The Board has noted the applicant’s contention that he simply desired to remain in the USAR for recall and did not desire to compete for promotion. However, he was promoted to the rank of captain while in the USAR, which should have been an indicator to him that he was being considered for promotion, regardless of any activity he may or may not have had. Accordingly, it was incumbent upon him to determine/clarify his status if he had specific intentions in mind. Inasmuch as he was a USAR commissioned officer, the only way his USAR commission could be terminated (without his voluntary resignation) is if he accepted an appointment in the Regular Army, the National Guard, enlisted in a Reserve Component, or was promoted to a higher Reserve Grade. Therefore, once he was twice non-selected for promotion, discharge was required under the provisions of law and regulation.

4. 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

__inw ___ __gjw ___ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064206
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/12
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/02/02
DISCHARGE AUTHORITY	AR135-175
DISCHARGE REASON	2XX NONSELECT FOR PROMOTION/MAJ
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 335	135.0300/CHG STATUS
2.
3.
4.
5.
6.