RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 24 FEBRUARY 2004
         DOCKET NUMBER: AR2003091591


         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
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Lawrence Foster		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his records be corrected by voiding his discharge from the U.S. Army Reserve, and reinstating him in the IRR (Individual Ready Reserve) in the grade of first lieutenant, with a date of rank/appointment that would allow him enough time to complete the Judge Advocate Officer Basic Course (JAOBC), and be considered by a Department of the Army Reserve Component Selection Board for promotion to captain. He also requested that his previous two nonslections for promotion to captain be waived.

2. The applicant states that he served 3 weekends drills in the Pennsylvania Army National Guard (March, April and May 1998) and resigned his commission in May 1998. He was unaware that he should have been continuing the JAOBC, and taking steps to be promoted to captain. He was also unaware that he was still in the U.S. Army Reserve, and believed that when he was discharged from the Pennsylvania Army National Guard that he was no longer in the military.

3. The applicant states he had no knowledge that he was in the IRR. He believed he had incurred no obligation to continue performing services after
25 May 1998, including the requirement to complete JAOBC.

4. The applicant acknowledges receiving numerous notices from the Human Resources Command-St. Louis (formerly the U.S. Total Army Personnel Command) concerning promotion consideration but felt that they had been sent in error. He acknowledges receiving documents concerning the requirement to complete JAOBC within two years of his appointment, and that sometime in 2001 or 2002, he noticed that the documents he had received referred to his being a member of the IRR.

5. He was unaware of the mandate of Title 10, United States Code, Sections 14504 and 14513, which requires the discharge of an officer who is twice nonselected for promotion.

6. The applicant provides copies of documents he received from the Human Resources Command-St. Louis concerning his Reserve status and address verification, promotion consideration, his out-dated physical examination, and a notice of the educational requirement for promotion to captain. He also provides a copy of his NGB Form 22 (Report of Separation and Record of Service), his transcripts from Kutzman University and Temple University, a resume, and his previous requests for a direct appointment with the Navy, the Air Force, and the Marine Corps.




CONSIDERATION OF EVIDENCE:

1. The applicant graduated from Temple University School of Law in 1990. On 21 July 1997, he was notified that the Judge Advocate General’s Corps Reserve Component Selection Board had approved his application for appointment as a judge advocate in the Army National Guard. He was informed that as a condition of the appointment he was required to complete the Judge Advocate Officer Basic Course (JAOBC) within two years of the date of his appointment.

2. On 18 March 1998, he was given a direct appointment as a First Lieutenant, Judge Advocate Generals Corps, in the Pennsylvania Army National Guard.

3. On 29 July 1998, he was honorably discharged from the Army National Guard and transferred to the IRR. The applicant’s NGB Form 22 (Report of Separation and Record of Service) indicates he had 4 months and 12 days of service, and had a Reserve service obligation of 17 March 2004.

4. The applicant received notification that he was being considered by the Captain, Reserve Component Selection Board that was convening on
13 November 2001. This notification informed him that the educational requirement for promotion must be completed no later than the convening date of the board.

5. On 26 March 2002, he was informed that he had been considered and not selected for promotion to captain by the November 2001 Selection Board, and that his records did not indicate that he had completed the required civilian and/or military education by the day the board convened.

6. On 5 April 2002, the applicant received a letter from the Human Resources Command-St. Louis addressed to “Dear Individual Ready Reserve Soldier.” requesting that he review and update the information contained on ARPC Form 3725-E (Army Reserve Status and Address Verification Form).

7. On 6 August 2002, he was notified that he would not be educationally qualified for promotion unless he submitted documentation that he had completed OBC.

8. The applicant received notification that he was being considered by the Captain, Reserve Component Selection Board that was convening on
4 November 2002. He was again advised of the educational requirement that must be completed prior to the convening date of the board.




9. On 2 September 2002, he was notified by the Human Resources Command-St. Louis, that by law soldiers were required to undergo a military physical examination at least every five years, and that their records indicated his was outdated and that he needed to schedule an exam as soon as possible. On
10 December 2002, the applicant completed the required physical examination, and it was posted to his records on 16 January 2003.

10. On 17 April 2003, he was notified that he had been nonselected for promotion by the board that convened on 4 November 2002. As a result of his second nonslection for promotion to captain he would be discharged in accordance with Title 10, USC, section 14513, with a separation date no later than 1 October 2003. The applicant’s final discharge orders are not in his available records.

11. Title 10, United States Code, section 14504, provides that first lieutenant who have failed selection for promotion to the next higher grade for the second time, and whose name is not on a list of offers recommended for promotion to the next higher grade shall be separated in accordance with section 14513, no later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

12. Title 10, United States Code, section 14513, provides that officers separated for failure of selection of promotion who are not transferred to an inactive status, or to the Retired Reserve, will be discharged from the officer’s reserve appointment

DISCUSSION AND CONCLUSIONS:

1. The applicant acknowledges receiving numerous documents from the Human Resources Command-St. Louis, which should have prompted an explanation as to why he was receiving such notifications if he believed he was no longer in the military, specifically those addressed as “Dear Individual Ready Reserve Soldier.”

2. The applicant acknowledges receiving a copy of his NGB Form 22 which clearly shows he was transferred to the IRR, and that he had a Reserve military service obligation until 17 March 2004.

3. The applicant’s contention that his lack of knowledge concerning his inclusion in the IRR and his assumption that he was out of the Army, are not sufficiently mitigating to warrant relief.



4. In order to justify correction of a military record the applicant must show, 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.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__RVO__ __MVT __ __LF ___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  Raymond V. O'Connor, Jr.
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091591
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040224
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.