RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR20040000143


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be promoted to captain or, in the
alternative, that he be permitted to re-enter the service as a first
lieutenant.

2.  The applicant states that he entered the service as a private in the
infantry in 1988.  He was commissioned a second lieutenant in 1990.  He
completed the Infantry Officer Basic Course and was honorably "discharged"
in 1992 when he entered law school after serving two years as a platoon
leader in a New York Army National Guard (NYARNG) infantry battalion.  Soon
thereafter, while in the Individual Ready Reserve (IRR), he was promoted to
first lieutenant.  Although his military career effectively ended with his
honorable "discharge" in 1992, his name remained in the IRR (completely
inactive, for all intents and purposes) and, in 1997 and 1998, his file
went before two mandatory promotion boards.  Having not engaged in any
military activity whatsoever since 1992, he was naturally  nonselected and,
in due course, was completely separated from the service.

3.  The applicant states that he was content with having fulfilled his
obligation and then some.  Then came 11 September 2001.  He knew he had a
lot to offer Civil Affairs units heading overseas to fight and support the
war on terrorism.  He immediately contacted Civil Affairs units in his area
with vacancies, two of which were eager to have him join.  However, he
learned that he could not simply "re-up" at his last rank because he was
twice passed over for promotion.  He immediately applied for a special
selection board (SSB) to reconsider his non-selection to captain, but he
was nonselected by two SSBs, in December 2001 and in August 2002.  He seeks
only the opportunity to pick up in a time of war where he left off in a
time of peace and be able to contribute to the war on terrorism, either as
a caption or as a first lieutenant.

4.   The applicant provides a resume; an officer evaluation report (OER)
for the period ending 17 May 1991; a diploma showing he completed the
Infantry Officer Basic Course; and a National Guard Bureau Report of
Separation and Record of Service.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 1 March 1969.

2.  The applicant enlisted in the ARNG on 25 February 1988.  He completed
initial active duty for training and was awarded military occupational
specialty 11B (Infantryman).  He was commissioned a second lieutenant from
the Reserve Officers' Training Corps (ROTC), discharged from his enlisted
status on 17 May 1990, and appointed a second lieutenant in the ARNG on 18
May 1990.  He completed the Infantry Officer Basic Course on 28 April 1992.

3.  On 15 June 1992, the applicant was separated from the NYARNG at his
request and transferred to the U. S. Army Reserve (USAR) Control Group –
Reinforcement (i.e., the IRR).  He was promoted to first lieutenant while
in the IRR.  He was not active in the IRR and there is no record to show he
received any OERs while in the IRR.

4.  The applicant was twice considered for promotion to captain but not
selected. He was discharged as a Reserve of the Army effective 13 October
1999.

5.  On 10 December 2004, the Office of Promotions, Reserve Components, U.
S. Army Human Resources Command informed the Board analyst that the
applicant had been nonselected for promotion in 1997 and 1998 due to lack
of the required military education.  On 7 January 2005, that office
informed the Board analyst that the applicant had been considered by SSBs
in 2001 and 2002 but not selected for promotion.  They could tell only that
lack of the required military education was not the reason for his
nonselection.  That office also stated that the 1998 board convened on 9
November 1998 and adjourned on 11 December 1998.

6.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion
of Commissioned Officers and Warrant Officers other than General Officers)
prescribes the policies and procedures for promotion of Reserve officers.
Chapter 2 provides that mandatory selection boards will be convened each
year to consider Reserve Component officers in an active status for
promotion to captain through lieutenant colonel.  In order to be qualified
for promotion to captain, an individual must have completed 5 years time in
grade as a first lieutenant and a resident officer basic course on or
before the convening date of the respective promotion board.

7.  Army Regulation 135-155, chapter 4 states that selection board action
is administratively final.  It states that if removal from active Reserve
status is required by law, the officer must be removed within the
prescribed time limit established for removal.  An officer who twice fails
to be selected for promotion to captain will not again be considered for
promotion.  It further states that officers not on extended active duty
will be removed from an active status within 90 days after the selection
board submits its results to Headquarters, Department of the Army (HQDA).

8.  Army Regulation 135-100 (Army National Guard and Army Reserve
Appointment of Commissioned and Warrant Officers of the Army) provides
guidance on the eligibility criteria for appointment of Reserve officers.
Age limitations are outlined in Table 1-1.  Table 1-1 provides that the
maximum age for appointment to first lieutenant is 33 years.  The maximum
age limitations may be increased for former officers by an amount not more
than the length of previous service in grade in which appointment is
authorized.  The regulation does not provide for waivers to the age
criteria.  However, on 28 October 2004, in a prior case, the U. S. Army
Human Resources Command – St. Louis informed the Board analyst that waivers
to age criteria may be considered.

9.  Army Regulation 135-175 (Army National Guard and Army Reserve
Separation of Officers) states that a member of the USAR who has at least
      3 years of service as a commissioned officer may not be discharged
without his consent, except under an approved recommendation of a board of
officers convened by an authority designated by the Secretary of the Army,
by the approved sentence of a court-martial, or as otherwise specifically
provided by law.

10.  Army Regulation 135-175 states, in pertinent part, that officers in
the grade of first lieutenant, captain, or major, who completed their
statutory military obligation, will be discharged for failure to be
selected for promotion after the second consideration by a Department of
the Army Reserve Components Selection Board.

11.  Title 10, U. S. Code, section 14504 states that an Army first
lieutenant who has failed of selection for promotion to the next higher
grade for the second time shall be separated in accordance with section
14513 of this title not 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from the ARNG at his request shortly after
completing the Infantry Officer Basic Course and transferred to the IRR on
         15 June 1992.  He was promoted to first lieutenant while in the
IRR but was subsequently nonselected for promotion to USAR captain in 1997
and 1998.  It appears the nonselections were erroneously based upon his not
having the required military education.  He was required by law to be
discharged from the USAR as a result being twice nonselected for promotion
and was so discharged on 13 October 1999.

2.  The applicant was subsequently considered for promotion to captain by
two SSBs; however, he was not selected for promotion evidently based upon
his not having a competitive file.  This is understandable since he had no
OERs on file from his IRR service and the Army was being downsized at the
time.

3.  Since he was a commissioned officer, the applicant could not have been
discharged without his consent except as authorized by law.  Given his
apparent planned inactivity in the IRR (with plans to attend law school),
he had the option of requesting discharge rather than transfer to the USAR.
 A discharge would have had the effect of "stopping the clock" regarding
any promotion considerations.

4.  Notwithstanding all of the above, it is acknowledged the applicant is
infantry-trained with prior experience as an infantry officer.  It is also
noted that he is now wishing to serve as an infantry officer in a time of
armed conflict.  The Army needs trained, qualified, and competent leaders
who are willing to command our Soldiers in combat.  Despite his
nonselection for promotion to captain due to apparent noncompetiveness,
there is nothing in his file that would overtly disqualify him from a
leadership position.  In view of the current situation, it would be
equitable to correct his records to show he requested discharge from the
USAR and that he was so discharged on 1 October 1998.

5.  There are appropriate procedures for determining the applicant's
qualifications to be reappointed as an Army infantry first lieutenant.  It
does not appear that appointment to captain would be appropriate as he
never served as a captain.  By correcting his records to show he was
discharged on 1 October 1998, his 1999 discharge for twice failing of
selection for promotion would be void.  He will thus be eligible to reapply
for reappointment through appropriate channels.  The Army will then have
the opportunity to review his qualifications against the needs of the Army
and determine if he can and should be reappointed.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

__lds___  __jtm___  __cak___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant partial relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  showing that he requested discharge from the U. S. Army Reserve,
that his request was approved, and that he was discharged from the U. S.
Army Reserve effective 1 October 1998;

     b.  voiding his second, 1998 nonselection for promotion; and

     c. voiding his 13 October 1999 discharge from the U. S. Army Reserve.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends
denial of so much of the application that pertains to restoring the
applicant's commission as a first lieutenant or showing he was promoted to
captain.




            __Linda D. Simmons
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000143                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |102.09                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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