MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:

                                   

         BOARD DATE: 03 JULY 2003
         DOCKET NUMBER: AR2002081262

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann, Jr.		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 records be corrected to show that he was discharged in May 1986 or September 1987, as determined appropriate by the Board. He also asks that all information relating to his military service subsequent to May 1986, or September 1987 as appropriate, be expunged from his file, including his non-selection for promotion to the grade of major.

APPLICANT STATES: In August 1987 he received notification from the “US Army Reserve” requesting him to “submit to an annual physical.” He states that he contacted an Army Recruiting Station in Hurst, Texas and requested information concerning resigning his commission. He states that officials at the recruiting station were unable to assist him, but suggested that he submit a resignation “following the same procedures as [his] resignation from the US Army in Aug 1985.” He states he followed the same procedures and submitted his resignation to “HQDA, Alexandria, VA” and did not receive “any other correspondence concerning [his] status in the IRR [Individual Ready Reserve]” until May 1993 when he received notification of his second non-selection for promotion to major. He states that he “did not give this a second thought.”

He states that it was not until 2002 when he contacted a Medical Corps/Nursing Corps recruiter about returning to military service that he discovered that his prior non-selection for promotion precluded him from reenlisting.

The applicant states that he “was led to believe on discharge from the US Army at Fort Hood, TX, that [his] reserve obligation ended after a total of six (6) years of total service” and cites a copy of his 1985 separation document and his Reserve Component identification card.

He notes he is a graduate of the United States Military Academy and a registered nurse and believes he “would be a valuable resource for any USAR [United States Army Reserve] organization” but needs his records corrected “to continue [his] pursuit of re-enlisting as an officer in the USAR.”

In support of his request he submits a copy of an undated and unsigned request for resignation from the Army Reserve. He notes that the original was dated and signed. He also submits a copy of his May 1993 notification of his second non-selection for promotion to major, a copy of his 1985 separation document, and a copy of his identification card.

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

He was a 1980 graduate of the United States Military Academy and was appointed as a second lieutenant in the Regular Army on 28 May 1980. Following his appointment and completion of flight training, the applicant was assigned to Fort Hood, Texas.

In February 1984 the applicant was promoted to captain. His performance evaluation reports, rendered while he was on active duty, were laudatory and he was consistently rated as center of mass, and in one instance received an above center of mass rating from his senior rater.

In March 1985 he submitted a request for an unqualified resignation from the Army to become effective on or about 10 August 1985. Included with his resignation was a statement noting that he was required to be appointed in the United States Army Reserve.

His request for resignation was approved and on 10 August 1985 he was released from active duty. His separation document does indicate that his Reserve obligation terminated on 27 May 1985, 6 years after his initial appointment.

On 11 June 1985, one month prior to his separation, the applicant acknowledged that he understood that because he was being released from active duty prior to completion of his initial statutory service obligation, he was required to execute an oath accepting an appoint in the United States Army Reserve. That acknowledgment statement also noted that he understood that “officers in this category must agree to accept an indefinite appointment in the United States Army Reserve to complete that obligation.”

On 11 August 1985 the applicant executed an oath accepting an appointment as a United States Army Reserve officer in the grade of captain. His appointment order noted that his appointment as a Reserve Commissioned Officer was for “an indefinite term.”

Following the applicant’s release from active duty and appointment as a United States Army Reserve officer, he was assigned to the United States Army Control Group (Reinforcement).

In May 1993 the applicant was notified that he had been non-selected for promotion to the grade of major for the second time and that as such he would be separated from the Army Reserve. He was honorably discharged on
3 September 1993. Other than his May 1993 promotion non-selection letter and orders discharging him in September 1993, no other documents associated with the applicant’s service in the United States Army Reserve were available to the Board.

Public Law 98-94 outlines the statutory service obligations incurred by individuals who enlist in any component of the U.S. military. Effective 1 June 1984, all personnel incur an 8-year statutory obligation on initial entry into the Armed Forces. Before 1 June 1984, all personnel incurred a 6-year statutory obligation on initial entry.
Army Regulation 135-175 states that an officer in the grade of captain, who has completed his statutory military service obligation, will be discharged for failure to be selected for promotion after second consideration. Army Regulation 135-155 further specifies that such officers will be discharged not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board that considered the officer for the second time.

Army Regulation 135-100 establishes the policy and provisions for the appointment of officers in the Army National Guard and Army Reserve. While it does note that officers twice passed over for promotion are not eligible for appointment, it does note that a waiver may be authorized, particularly when the individual may posses experience or professional qualifications uniquely suited for the position to which he or she is seeking to be appointed.

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. While the applicant maintains that he “believed” that his military service was terminated at the completion of his statutory service obligation in 1986, the evidence shows that he also maintains that he submitted a request for unqualified resignation in August 1987, more than a year after he believed he no longer had any military affiliation. The Board also notes that the applicant authenticated a document acknowledging that his appointment in the United States Army Reserve was for an indefinite period and his appointment orders confirmed that fact.

2. The evidence available to the Board indicates that the applicant attended the United States Military Academy, graduated from flight training, and served on active duty for more than 5 years. It is reasonable to conclude that such an individual would have been reasonably familiar with the procedures associated with resigning one’s commission, or at the very least known to follow up on such a request if some sort of response was not forthcoming.

3. The Board also notes that a reasonable person, particularly one with the applicant’s military background, would have contacted the agency which notified him of the requirement to submit an annual physical, rather than simply contacting a local recruiting station. The applicant offers no evidence to support his contention that he did submit a request for resignation in August 1987, beyond the unsigned, undated letter, submitted with his application.

4. In 1993 when the applicant received notification that he had been nonselected for promotion and was going to be separated, the Board concludes that again, a reasonable person, particularly one with the military background of the applicant, would have inquired into the action. Rather, the applicant notes he “did not give this a second thought.”

5. The fact that the applicant now wishes to resume his military career is not a basis to void actions, which were appropriately executed at the time, simply because they may render the applicant ineligible for a commission. The Board also notes that Army Regulations do provide for the submission of a waiver of his disqualification, although there is no guarantee the waiver will be approved.

6. 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 that requirement.

7. 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

___RVO_ __KAN __ __PHM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081262
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030703
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.