RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 January 2005
      DOCKET NUMBER:  AR20040000374


      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. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, in effect, reconsideration of his request for
reappointment as a commissioned officer in the Military Police (MP) Corps.

2.  The applicant states that, after completing the MP Officer Basic Course
(MPOBC), he told his company commander that he intended to relocate and
pursue graduate school.  She responded by stating, "your commission as an
officer is indefinite, just contact ARPERCEN (the U. S. Army Reserve
Personnel Center) when school is complete so that you can be re-assigned."
His request to be placed in the "inactive" Ready Reserve was approved.
From 1991 through 1994, he prepared for graduate review.  In 1994, he
notified friends, family, and his reserve unit administrator of his new
forwarding address.  By 1997, graduate school was complete and he notified
the U. S. Army Personnel Command      (AR-PERSCOM, formerly known as
ARPERCEN) of his desire to be re-assigned as an active reservist.  He was
then told that in 1995 he had been involuntarily discharged.

3.  The applicant states that he tried to be reappointed from 1998 through
2001 but his requests were verbally denied.  He was referred to a local
recruiter, who told him he could be reappointed if he (a) officially
resigned as a commissioned officer; (b) enlisted as a sergeant; and (c)
contacted his unit commander for reappointment.  He was assured that
reappointment would be satisfied.  Two other senior noncommissioned
officers stated that reappointment would be routine and granted.  With
their assurance, he enlisted in the U. S. Army Reserve (USAR) on 14
November 2002.  In January 2003, he received orders of reassignment where
his previous rank of first lieutenant (1LT) was granted.  During formation,
his first sergeant informed unit leaders and support troops of his rank and
battalion status.  In March 2003, those orders were reversed and his
officer rank was removed.

4.  The applicant states that he now clearly understands the implications
of not researching specific Army regulations as they relate to inactive
Ready Reserve policy.  However, he is convinced that proper career guidance
and counseling would have prevented his discharge.

5.  The applicant states, in a letter dated 9 April 2004 to the U. S. Army
Human Resources Command – St. Louis (USAHRC – STL, formerly known as
    AR-PERSCOM), that he was requesting a special selection board (SSB) to
major.  He stated he was a two-time passover on the 1995 captain Army
Promotion List board due to an administrative error on his military and
civilian education.  He stated that, upon receiving promotion to captain,
he intended on continuing his service in the USAR.
6.  The applicant provides a photograph; a duplicate, dated 26 August 2003,
of his 9 April 2004 letter; a resume; a birth certificate; a copy of his
social security card; his DA Form 71 (Oath of Office – Military Personnel)
dated 1 May 1987; college transcripts from Eastern Michigan University and
Wayne State University; his MPOBC Academic Evaluation Report (AER); his DD
Form 214 (Certificate of Release or Discharge from Active Duty) for the
period ending 18 January 1991; college transcripts from The School of the
Art Institute of Chicago; a court order changing his name; orders dated 15
January 2003 assigning him to the 783d  MP Battalion; a letter from the
Dean of Students dated 30 March 2003; a recommendation dated 3 August 2003;
and two recommendations dated             9 September 2003, one from his
company commander and one from his battalion commander.

7.  The applicant also provides a memorandum from him to USAHRC – STL dated
20 November 2003; a letter dated 25 November 2003; a DA Form           61
(Application for Appointment) dated 25 November 2003; a DA Form 3575
(Certificate of Acknowledgement and Understanding of Service Requirements
for Individual Applying for Appointment in the USAR under the Provisions of
AR 135-100, or AR 135-101, as Applicable – Individuals without a Statutory
Service Obligation); a memorandum for record dated 2 February 2004; a
Noncommissioned Officer Evaluation Report (NCOER) for the period ending
February 2004; two letters of appreciation, one dated 18 October 2004 and
one dated 22 October 2004; and a DA Form 705 (Army Physical Fitness Test
Scorecard).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002067473 on 27 June 2002.

2.  The letters of recommendation, the 2 February 2004 memorandum for
record, the letter of appreciation, and the 15 January 2003 orders are new
evidence which will be considered by the Board.

3.  The applicant had prior enlisted service in the Regular Army from 13
August 1982 through 7 August 1985.  He was assigned to a troop program unit
(TPU), an Army Security Agency unit on 10 August 1985.  He was commissioned
a second lieutenant in the USAR on 1 May 1987.  All his commissioned
officer assignments were to Military Intelligence TPUs.

4.  The applicant's records show he received an Officer Evaluation Report
(OER) for the period 1 May 1987 through 4 August 1988.  He was rated center
of mass with a senior rater profile of 0/0/3/*3/0/0/0/0/0 (with *
indicating his rating).

5.  On 16 April 1990, the applicant was promoted to first lieutenant.

6.  The Eastern Michigan University transcripts the applicant provided show
he was awarded a Bachelor of Fine Arts degree on 28 April 1990.

7.  The applicant's records show he received an OER for the period 1 May
1989 through 30 April 1990.  He was rated below center of mass with a
senior rater profile of 1/5/9/10/*1/0/0/0/0 (with * indicating his rating).

8.  The applicant served on active duty for training (to attend MPOBC) from
      24 April 1990 through 18 January 1991.

9.  The applicant's records contain an AER showing he failed to achieve
course standards for MPOBC for the period 26 April through 10 August 1990.
He was apparently recycled.  A second AER shows he achieved course
standards for MPOBC for the period 23 September 1990 through 17 January
1991.

10.  The applicant's records show he received an OER for the period 17
January 1991 through 16 January 1992 during which time he performed duties
as a counterintelligence officer.  Part IVb (Performance Evaluation –
Professionalism) included comments that he made poor decisions on several
occasions and that he needed to improve oral communications.  In Part Vb
(Performance and Potential Evaluation), his rater rated his performance as
"met requirements" with mostly negative comments including comments that he
was late for drill and often failed to notify his chain of command of his
whereabouts.  He also noted that, during a field training exercise, the
applicant, as the convoy commander, failed to conduct radio checks before
movement, causing delay in the departure time.  He left a disabled truck on
the road and returned to the drill hall 90 miles away instead of calling
for the wrecker.  Other comments were negative.

11.  In Part Vc (Promotion Potential) of the OER for the period ending 16
January 1992, the applicant's rater rated his potential as "do not promote"
and noted that he was an MP officer in a military intelligence company and
made no effort to obtain the military intelligence skills necessary to
become an effective section leader.  His senior rater gave him a below
center of mass rating with a senior rater profile of 0/2/2/0/0/0/0/0/*1
(with * indicating his rating).

12.  On 5 August 1992, the applicant was transferred from his TPU to the
USAR Control Group (Annual Training) due to unsatisfactory participation.
13.  According to records at the Office of Promotions, Reserve Components,
   the applicant was considered for promotion to captain by the 1993 board
which convened on 23 November 1992 and was not selected for promotion.  He
was considered for promotion to captain by the 1994 board that convened on
         16 November 1993 and was not selected for promotion.  There was no
indication in their records that he had been nonselected due to not having
the required military or civilian education.

14.  On 8 May 1995, the applicant was honorably discharged from the USAR
due to being twice nonselected for promotion.

15.  The college transcripts from the School of the Art Institute of
Chicago provided by the applicant shows he first enrolled in the Fall of
1995 and, in May 1997, he was awarded a Master of Fine Arts degree.

16.  According to USAHRC – STL's Soldier Management System, the applicant
contacted that command on 9 October 2001 asking for reappointment.  He was
informed at that time that he was a two-time passover for captain and to
call "standby" to see if he was eligible.  On 14 November 2002, the
Military Entrance Processing Station (MEPS) called to ask how the applicant
could remain an officer.  MEPS was advised that since he was a two-time
passover for captain, if he wanted to remain in the military he needed to
enlist or become a warrant officer.

17.  The applicant enlisted in the USAR, in the rank and grade of sergeant,
E-5, on 14 November 2002.

18.  Headquarters, 88th Regional Support Command orders 03-015-00173, dated
15 January 2003, which assigned the applicant to the 783d MP Battalion,
showed his rank as first lieutenant.

19.  USAHRC – STL's Soldier Management System also indicated that the
applicant contacted them on 7 March 2003, stating he had been told that if
he enlisted he could reobtain status as a commissioned officer.

20.  In letters of recommendation, the applicant's company and battalion
commanders indicated the applicant demonstrated, by his completion of
MPOBC, that he possessed the required technical and tactical skills
necessary to serve in an appointed leadership capacity.

21.  By letter dated 2 February 2004, the applicant's recruiter stated that
he and the applicant discussed the process of reactivating his commissioned
status during the recruitment process.  He stated that, according to the
Reserve Guidance Counselor and the Senior Guidance Counselor, the applicant
qualified for direct commission appointment provided he officially resigned
his previous commission, enlisted as a sergeant, and received a direct
commission by the Reserve unit commander.

22.  The NCOER for the period ending February 2004 provided by the
applicant shows that he was rated a success in all five areas of NCO
responsibilities (with possible ratings of excellence, success, needs some
improvement, and needs much improvement).  His rater rated his overall
potential for promotion as fully capable (with possible ratings of among
the best, fully capable, and marginal).  His senior rater rated both his
overall performance and his overall potential as     3 (with ratings
ranging from a high of 1 to a low of 5).

23.  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, completed resident officer basic
course, and have a baccalaureate degree on or before the convening date of
the respective promotion board.

24.  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 major 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.

25.  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.
Paragraph 1-7 states that commissioned officers twice passed over for
promotion are not eligible for appointment.

26.  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.

27.  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.  There is no evidence of record to support the applicant's contention
that, after completing MPOBC, he told his company commander that he
intended to relocate and pursue graduate school or that his request to be
placed in the "inactive" Ready Reserves was approved.  An OER for the
period 17 January 1991 through 16 January 1992 shows that he was still
actively participating with his unit a year after he completed MPOBC.  The
evidence of record shows that he was transferred to the USAR Control Group
(Annual Training) in August 1992 due to being an unsatisfactory
participant.

2.  Records at USAHRC - STL failed to show that the applicant was
nonselected for promotion due to errors concerning his civilian or military
education.  Based on his OER history, it appears likely that the applicant
failed to be selected for promotion due to his noncompetitive status with
regard to his peers.

3.  The evidence of record shows that the applicant contacted USAHRC – STL
(AR-PERSCOM at the time) in October 2001 concerning reappointment and was
told to contact another office to see if he was eligible.  While there is
no evidence to show that he actually contacted that other office, a
reasonably prudent person would have done so.  Since he states that his
request for reappointment was verbally denied at various times between 1998
and 2001, the Board presumes someone at USAHRC – STL told him he was not
eligible for reappointment due to being a two-time passover for promotion
to captain.

4.  It is not credible to believe that a former commissioned officer, who
had already been told that he was not eligible for reappointment, would
have credited contrary information given to him from local recruiting
officials.  It is not credible that he would have believed someone who told
him he could be reappointed if he officially resigned as a commissioned
officer.  Since he states he was informed in 1997 that he had been
discharged in 1995, he had no commission to resign from in 2002.  It is not
credible that he would have believed someone who told him he could be
reappointed by his unit commander, knowing that the first time he was
appointed his appointment was made by ARPERCEN.
5.  It is noted that the 88th Regional Support Command, not USAHRC – STL,
issued the January 2003 orders indicating his rank as first lieutenant.  In
addition, those orders are not appointment orders (i.e., they do not show
that his previous rank of first lieutenant "was granted").

6.  Although the applicant's company and battalion commanders indicated the
applicant demonstrated, by his completion of MPOBC, that he possessed the
required technical and tactical skills necessary to serve in an appointed
leadership capacity, there is no evidence of record to show that he does
possess those skills.  He failed to achieve course standards the first time
he attended MPOBC.  Of three OERs on file, he was rated as center of mass
on one of them and below center of mass on two of them.  Negative comments
concerning his basic officer skills were made on his last OER.  Neither
does the applicant's NCOER for the period ending February 2004 indicate
that he demonstrated exceptional leadership capacity.

7.  There is insufficient evidence on which to justify a correction to the
applicant's records (such as showing that he was discharged from the USAR
prior to being twice nonselected for promotion to captain) that would allow
him to apply for reappointment as a commissioned officer.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kah___  __rd____  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AR2002067473 dated 27 June 2002.




            __Karen A. Heinz______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000374                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050104                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.09                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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