MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 May 2003
         DOCKET NUMBER: AR2002078934

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Mr. Thomas A. Pagan		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 into the US Army Reserve (USAR) as a first lieutenant (1LT/0-2) or that he be discharged as a 1LT/0-2.

APPLICANT STATES: That he would like to join the Michigan Army National Guard (MIARNG) and has been fighting for years to be reinstated. In 1988 his records were missing and he has attempted to correct the problem for several years. His Congressman has spent 12 years inquiring as to the cause of his problem. On 16 August 2002, he was notified that his records were found.

In an additional statement, the applicant states that this is his third time requesting that his commission in the USAR be restored. He was told previously that there was no record of his commission in the system and that nothing could be done to assist him until his records were located. On 16 August 2002, he was informed by the customer service center that his records were located at the National Archives. He was further informed that he had been discharged as a second lieutenant (2LT/0-1). However, he was not informed as to how, by whom, or under what conditions he was discharged. He was only informed that his records had been found and that he had possibly been discharged in 1989.

In 1989, he requested to serve in the Individual Ready Reserve (IRR) until a position was available for him in the MIARNG. Immediately, following his request his records disappeared. His Congressman requested an inquiry in 1990 as to the whereabouts of his records and his military status; however, his request was not resolved. He has been in constant contact for several years and was informed by several personnel at the Army Reserve Personnel Command (AR-PERSCOM) that it would take more time to solve his problem. He filed two previous requests in 1993 and in 1996 and had been persistently pursing this problem.

In conclusion, he states that he was commissioned in the USAR in 1987 with a 6-year obligation and served only two of his six years when his records disappeared. There was no way he was eligible to be discharged nor did he request it. His records now show that that he was discharged 4 years earlier as a 2LT/0-1. Prior to his records being lost, he was recommended for promotion to 1LT/0-2. If he is no longer eligible to serve, he now recommends that he be promoted to 1LT/0-2 with an Honorable Discharge.

EVIDENCE OF RECORD: The applicant's military records show he entered active duty on 7 July 1980, as a utility helicopter repairman. He continued to serve until he was released from active duty on 1 July 1983, in the pay grade of E-4. He was transferred to the USAR Control Group (Reinforcement). On 30 August 1983, he was transferred to a troop program unit (TPU).



He enlisted in the USAR on 22 September 1983, as a Reserve Officer Training Corp (ROTC) cadet. He continued to serve until honorably discharged on 29 July 1985, for the purpose of accepting a commission in the USAR. On 30 July 1985, he was commissioned as a 2LT/0-2 in the USAR in the Early Commissioning Program and assigned to a USAR unit.

The applicant was ordered to active duty (AD) to attend the Officer Basic Course (OBC) on 12 August 1987 and was released from AD on 15 December 1987. Between April and July 1988, he accrued 12 unexcused absences from unit training with his USAR unit. The applicant's records also show that he had requested appointment in the MIARNG in April 1988. There is no evidence of record that he requested or received a conditional release from the USAR.

On 7 April 1988, the applicant requested through his MIARNG command that he be transferred to the IRR due to conflict with his present occupation and personal matters. He also indicated that his present status was not conducive to his being a viable asset to the MIARNG and would prefer an assignment that would allow him to maintain his personnel life and serve his country if needed. He requested an effective date of 18 April 1988. His command recommended approval of his request. His command indicated that the applicant failed to consider all of his commitments when he applied for acceptance in the MIARNG.

The applicant's records contain a copy of Department of Military Affairs Orders 74-1, dated 14 April 1988. This order appointed the applicant in the MIARNG in the rank and pay grade of 2LT/0-1 with an effective date of 4 April 1988. Orders Number 79-1 revoked this order on 21 April 1988.

On 25 August 1988, he was released from his USAR unit in the rank of 2LT/0-1 due to unsatisfactory participation and transferred to the IRR.

The applicant was considered and not selected for promotion to first lieutenant by the 1988 Reserve Components Selection Board (RCSB) because his records failed to reveal that he had completed the required military education as outlined in Army Regulation 135-155. The RCSB convened on 12 December 1988 and adjourned on 16 December 1988. There was no evidence in his records that he successfully completed OBC and received a graduation certificate or Academic Evaluation Report. Effective 22 March 1989, the applicant was discharged from the USAR in the rank of 2LT/0-1 for failure of selection for promotion to 1LT/0-2. It was noted that he had no remaining service obligation.



Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve Component officers. The regulation states that a Reserve Component officer in the grade of W-1 or 2LT will be considered for promotion without review by a selection board. The officer’s records will be screened to determined eligibility for promotion to the next higher grade. This will be determined far enough in advance to permit promotion on the date promotion service is completed. The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to first lieutenant through major. The regulation also provides that the effective date of promotion will be the date the mandatory service and promotion eligibility requirements are completed, provided the officer is serving in a duty assignment requiring a higher grade than currently held by the officer. The regulation specifies that in order to be qualified for promotion to first lieutenant an individual must have completed an OBC.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Section VI of the regulation governs transfer to the IRR of unsatisfactory participants.

Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) prescribes policy
and procedures governing the various types of service obligations and participation requirements for members of the USAR and Army National Guard (ARNG).

Chapter 2 provides guidance governing statutory obligations. It states, in pertinent part, that officers appointed from the ROTC with prior AD, incur an obligation of 8 years from the date of appointment.

Chapter 4 provides guidance governing absences from Ready Reserve Training for enlisted and officer personnel of the ARNG and USAR. Paragraph 4-2 states, in pertinent part, that the unit commander or acting commander is authorized to
excuse absences and authorize equivalent training (ET). This authority will not be further delegated. A State Adjutant General (for ARNG) and general officer commanders (for USAR) are authorized to grant exceptions to unexcused absences and it may be delegated to commanders in grade O-5 or above.

Paragraph 4-11 of the same regulation pertains to unexcused absence from unit training assemblies. It states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a
1-year period. Unless an absence is authorized, a soldier failing to attend a scheduled single or multiple unit training assembly (MUTA) will be charged with an unexcused absence.

Paragraph 6-4 of the same regulation states that an officer or enlisted USAR soldier who is obligated by contract that fails to participate in a satisfactory manner maybe transferred to the IRR.

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. Notwithstanding the extensive argument presented by the applicant in his application and the accompanying documents, the evidence of record confirms that the applicant was commissioned in the USAR on 15 July 1985 as a 2LT and he incurred an 8-year obligation from the date of his appointment in the USAR.

2. The applicant was appointed as a 2LT in the MIARNG; however, those orders were revoked. He did not have the authority to request an appointment in the MIARNG since he did not have a release from the Army Reserve or his commitment to perform training with his Reserve unit.

3. It was noted that he had a total of twelve unexcused absences within a one-year period and was declared an unsatisfactory participant. The Board also notes that he was required to attend all scheduled unit training assemblies and annual training periods under the provisions of Army Regulation 135-91, which he did not follow.

4. The applicant's command submitted a request for assignment to the IRR due to unsatisfactory participation. The request was approved and the applicant was transferred on 25 August 1988, in the rank and pay grade of 2LT/0-1.

5. The Board notes that the applicant was considered for promotion to 1LT/0-2 after his separation and was not recommended because his records failed to reveal that he had completed the required military education.

6. He was discharged on 22 March 1989 for failure of selection for promotion. The type of separation directed and reasons for his separation were appropriate considering all of the facts of the case.

7. 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.





8. 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

___ao___ __ra___ ___tp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078934
SUFFIX
RECON
DATE BOARDED	20030515
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19880825
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	1023
2.
3.
4.
5.
6.