RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 MARCH 2005
      DOCKET NUMBER:  AR20040002468


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Denning                  |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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 his enlistment contract be amended to show
that he enlisted in the Army Reserve for 3 years on 2 September 2001, vice
            27 August 2001.

2.  The applicant states that he was an officer in the Army Reserve, who
submitted his resignation and enlisted in the Army Reserve in accordance
with the provisions of Army Regulation 601-210, paragraph 3-14e(4) on 27
August 2001.  He was advised by Human Resources Command that the board’s
decision to discharge him after he was twice non selected for promotion to
lieutenant colonel was the final action, and that in accordance with the
provisions of Army Regulation 135-175, paragraph 6-12a, he could not submit
a resignation once the board made that determination.  Therefore, his
resignation was not accepted, and his enlistment should not have taken
place until after his               1 September 2001 discharge.

3.  The applicant provides a copy of his 27 August 2001 enlistment
contract, copies of extracts of Army Regulations 601-210 and 135-175, a
copy of his discharge order, and a copy of his unqualified resignation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army Reserves for 6 years as a cadet on
10 May 1979.  He was appointed a second lieutenant in the Regular Army on
16 May 1981 and ordered to active duty on 19 May 1981.  The applicant was
promoted to captain on 1 June 1985.

2.  On 31 July 1992 the applicant was discharged from the Regular Army
under the provisions of the Voluntary Incentive Program.  He received a
special separation bonus of over $60,000.00.  The applicant was assigned to
the Army Reserve Control Group (Reinforcement), and on 1 August 1992 was
appointed a captain in the Army Reserve.  He was promoted to major on 1
April 1994 with a date of rank of 26 May 1993.  On 6 July 1995 he was
reassigned from the Army Reserve Control Group (Reinforcement) to a Reserve
unit in Madison, Wisconsin.

3.  On 9 May 2000 the applicant was notified that he was not selected for
promotion to lieutenant colonel.  He was notified on 8 March 2001 that he
was again not selected for promotion to lieutenant colonel.

4.  On 22 August 2001 the applicant submitted to the Army Reserve Personnel
Center in St. Louis his unqualified resignation from the Army Reserve
effective on 26 August 2001.

5.  The applicant enlisted in the Army Reserve for 3 years in pay grade E-5
on   27 August 2001.  In so doing, he stated that he was currently not a
member of the Army Reserve, but had previous military service in the Armed
Forces of the Untied States.

6.  On 24 April 2001 the Army Reserve Personnel Command at St. Louis
published orders discharging the applicant from the Army Reserve under the
provisions of Army Regulation 135-175, effective on 1 September 2001.

7.  On 6 June 2004 the applicant extended his enlistment in the Army
Reserve for two years, making his new ETS (expiration of term of service)
date 26 August 2006.

8.  In the processing of this application an advisory opinion was obtained
from the Army Reserve Command at Fort McPherson, Georgia.  That command
opined that the applicant’s enlistment contract should not be amended, but
instead his discharge order be revoked, and a letter of notification that
the applicant vacated his Reserve appointment be issued in accordance with
the provisions of Army Regulation 135-175, paragraph 5-1.

9.  In rebuttal, the applicant stated that after finding out that he lost a
year of service because of the situation with his enlistment and separation
orders, he contacted an official of the Human Resources Command in St.
Louis, who informed him that the discharge order could not be amended or
revoked, because such an action would be illegal.  She informed him that
after the order was issued the case was closed and his only option was to
apply to this Board to have the date on his enlistment contract changed.

10.  Army Regulation 135-155 prescribes policy and procedures used for
selecting and promoting commissioned officers of the Army National Guard of
the United States and the Army Reserve.  Paragraph 4-20 states in pertinent
part that an officer who twice fails to be selected for promotion to the
grade of lieutenant colonel will be removed from an active status unless
subsequently placed on a promotion list, selected for continuation, or
retained under any other provision of law.  Paragraph 4-33 states in
pertinent part that a major who has failed to be selected for promotion to
lieutenant colonel for the second time will be separated on the first day
of the seventh month after the approval date of the promotion board report
that non selected the officer for the second time.  The officer will be
transferred to an inactive status if the Secretary of the Army determines
that the officer has skills which are required to meet mobilization needs;
to the Retired Reserve (Army Regulation 140-10); or discharged (Army
Regulation 135-175).

11.  Army Regulation 135-175 provides policy, criteria, and procedures for
the separation of officers of the Army National Guard of the United States
and the Army Reserve.  Paragraph 4-4 states in pertinent part, that an
officer in the grade of major will be discharged for failure to be selected
for promotion after second consideration by a Department of the Army
Reserve Components selection board.

12.  Paragraph 6-12a of the above-mentioned regulation, the paragraph cited
by the applicant in his request, states that an officer who has been
notified of being considered for involuntary separation may submit a
resignation at any time prior to final action taken on the board
proceedings.  Involuntary separation, as depicted in chapter 2 of that
regulation, pertains to involuntary separation of officers for substandard
performance of duty, or moral or professional dereliction, and has no
bearing whatsoever on an officer twice nonselected for promotion.

13.  Chapter 5 of the above-mentioned regulation outlines the conditions
under which an officer of the Army National Guard of the United States or
the Army Reserve automatically vacates his appointment as a Reserve of the
Army because of entry into another military status which is incompatible
with his Reserve status at the time of such entry.  It states that
administrative action is not required to accomplish automatic vacation of
appointment; however, for record purposes only, a letter of notification of
vacation of appointment will be issued.  Such letter will be issued by the
appropriate area commander or the Commander, Army Reserve Personnel Center
[now, the Human Resources Command at St. Louis].  No formal discharge
certificate will be issued.  The appointment as a Reserve officer of the
Army is vacated effective the date immediately preceding the date the
officer enlists, or executes an oath of office for appointment, in the new
military status.  A commissioned officer vacates his Army Reserve
appointment when he enlists as a Reserve for service in the Army National
Guard of the United States or the Army Reserve.

14.  Paragraph 6-9 of the above-mentioned regulation states in pertinent
part, that authority to take final action on unqualified resignations
submitted by nonobligated officers is delegated to the appropriate area
commander and the Commander, Army Reserve Personnel Center.

15.  Army Regulation 601-210 governs eligibility criteria, policies, and
procedures for enlistment and processing of persons into the Regular Army
and the Army Reserve, and states in effect, that in order for a current
Reserve Component officer to enlist into the Army Reserve, he must resign
his commission by submitting a letter of resignation to the Commander, Army
Reserve Personnel Center.  The letter of resignation should request the
effective date to be the day prior to the enlistment date of the officer.
Guidance counselor will ensure that the letter of resignation is mailed on
the day of enlistment.  This will ensure that if the officer declines
enlistment or is otherwise not enlisted that his resignation is not
unintentionally submitted.

DISCUSSION AND CONCLUSIONS:

1.  Apparent is the fact that the Army Reserve Personnel Command published
the order discharging the applicant from the Army Reserve on 1 September
2001, unaware that the applicant had resigned his commission on 26 August
2001 and enlisted in the Army Reserve the following day, thereby vacating
his Army Reserve appointment.  The discharge order is thus superfluous and
should be revoked.

2.  Notwithstanding the applicant’s contention, his resignation and his
subsequent enlistment in the Army Reserve on 27 August 2001 are proper.  By
enlisting in the Army Reserve the applicant automatically vacated his
appointment as an Army Reserve officer, and as indicated above, making the
discharge order unnecessary.

3.  Consequently, the applicant’s request to amend the date on his
enlistment contract is not accepted.  A letter of notification that the
applicant vacated his appointment should be issued as indicated by the Army
Reserve Command advisory opinion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JD  __  __JS ___  ___MF __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by revoking the order discharging the applicant from
the Army Reserve effective on 1 September 2001; and issuing a letter of
notification vacating the applicant’s Army Reserve appointment effective on
26 August 2001.

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
amending the applicant’s enlisted contract to show that he enlisted in the
Army Reserve for 3 years on      2 September 2001.



                                  ______John Denning________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002468                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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