RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:   AR20040003944


      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:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 reconsideration of his earlier request to void
his two nonselections for promotion to major and his subsequent 13 October
1998 discharge from the U. S. Army Reserve (USAR) in order to permit him to
be discharged from the USAR Control Group (Reinforcement) on 10 August
1992, the terminal date of his Reserve military service obligation.  He
also petitioned for restoration of his commission as a captain in the
Infantry in the Mississippi National Guard.

2.  The applicant states that, during his call to active duty during
Operation Desert Shield/Storm, he was a captain commanding one of the
infantry companies of the 155th Armored Brigade, Mississippi Army National
Guard (MSARNG).  Upon his release from active duty, he found the financial
affairs of his business had deteriorated to the point he felt compelled to
ask for release from active service in the MSARNG.  His request was granted
and he was transferred to the USAR Control Group (Reinforcement).  The
affairs of his business recovered and he took steps to resume his voluntary
service to his country.  He submitted an application to the Board to permit
him to resume his commissioned status and, pending approval, he enlisted in
the MSARNG.

3.  The applicant states that he was aware that continuing military
education was a requirement of promotion and continued participation in the
ARNG; however he did not fully appreciate that his failure to continue that
education would seemingly forever bar him from commissioned status.  The
decision of the Board was based upon the provisions of Title 10, U. S.
Code, section 1552 and Army Regulation 15-185.  With the help of his
father, who is an attorney and a retired colonel of infantry, he researched
the cited sections of Title 10, U. S. Code and more.  They found that Title
10, U. S. Code, section 1558 gives him hope that restoration of his earlier
rank as captain may be possible under the law.  He does not seek promotion,
only restoration to the rank he held earlier and for which he is
demonstrably qualified.

4.  The applicant states that a reading of Title 10, U. S. Code, section
1558 connotes to him that for good cause and the exigencies of the service,
the Secretary of a military department can authorize the restoration of
commission to an individual previously discharged from a military service
and, by invoking that empowerment, the Secretary can override the actions
of boards previously convened.  That is the relief he seeks.

5.  The applicant further states that the necessity to reestablish the
financial condition of his business precluded any attention necessary to
enroll in and successfully complete those military educational courses
required for his promotion.  The fact he had earlier completed college and
attained a degree, coupled with his successful completion of all other
military courses in which he had been enrolled, convinces him that, given
the time, he would have successfully completed any course required for his
promotion and continued military service.  There is currently a great
shortage of company grade officers in the MSARNG.  No other serving officer
or other individual will be adversely affected by his restoration to his
commissioned status.

6.  The applicant provides a letter of support, dated 9 June 2004, from The
Adjutant General, Mississippi National Guard; a letter of support, dated 23
July 2004, from his brigade commander; letters of support, dated 30 April
2004       and 22 July 2004, from battalion-level commanders; a letter of
support, dated     1 October 2004, from his current battalion commander;
and a 2-page extract from Title 10, U. S. Code, section 1558.

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
AR2003087537 on 22 January 2004.

2.  The applicant was born on 12 October 1961.

3.  The applicant's National Guard Bureau (NGB) Form 22 (Report of
Separation and Record of Service) for the period ending 9 August 1984 shows
he enlisted in the ARNG on 19 May 1981 after having had 7 months and 5 days
of prior Reserve Component service.

4.  The applicant served on active duty for training from 2 January 1984
through 7 March 1984.  Item 12i (Reserve Obligation Terminal Date) of his
DD Form    214 (Certificate of Release or Discharge from Active Duty) for
the period ending 7 March 1984 contains the entry "87 05 18."

5.  The applicant served on active duty while attending Officer Candidate
School. Item 12i of his DD Form 214 for the period ending 10 August 1984
contains the entry "87 05 18."

6.  The applicant was honorably discharged from the ARNG on 9 August 1984
for the purpose of accepting a commission.  Item 11 (Terminal Date of
Reserve/Military Service Obligation) of his NGB Form 22 for the period
ending    9 August 1984 is blank.

7.  On 10 August 1984, the applicant was appointed a second lieutenant in
the ARNG.  He was promoted to first lieutenant on 9 August 1987.  On 8
February 1989, after apparently requesting resignation, he was honorably
separated from the ARNG, and transferred to the USAR Control Group
(Reinforcement).  Item  11 of his NGB Form 22 is partially illegible but
appears to erroneously contain the entry "92 08 09."

8.  On 1 September 1990, the applicant was reappointed in the ARNG as a
first lieutenant.  He was promoted to captain on 15 November 1990.  He was
ordered to active duty in support of Operation Desert Shield/Storm on 7
December 1990.

9.  By letter dated 1 February 1991, the applicant was notified that he had
been considered for promotion to the next higher grade but he was not
recommended for promotion.  He was informed that one of the reasons for his
nonselection could have been his failure to complete the military education
requirement.  His attention was invited to the education requirement for
promotion as specified in chapter 2 of Army Regulation 135-155.  (This
letter may have been erroneously issued).

10.  The applicant was released from active duty on 24 May 1991.  Item 6 of
his DD Form 214 for the period ending 24 May 1991 contains the entry "00 00
00."

11.  On 21 October 1991, the applicant separated from the MSARNG and was
transferred to the USAR Control Group (Reinforcement.)  Item 11 of his NGB
Form 22 erroneously contains the entry "92 08 10."

12.  On 6 June 1997, the applicant was notified that he had been considered
for promotion but was not among those selected for promotion.  He was
informed that his records did not indicate that he had completed the
required civilian and/or military education by the day the board convened.
His attention was invited to the mandatory education requirements for
promotion as specified in chapter 2 of Army Regulation 135-155.

13.  In 1998, the applicant was again notified that he had been considered
for promotion but not selected.  He was subsequently discharged as a
Reserve of the Army on 13 October 1998.

14.  On 22 January 2004, the Board initially considered the applicant's
request.  in Docket Number AR2003087537.  That case stated in part, "Title
10, U.S. Code, Section 1552(b), provides that applications for correction
of military records must be filed within 3 years after discovery of the
alleged error or injustice.  This provision of law allows the Army Board
for Correction of Military Records (ABCMR) to excuse failure to file within
the 3-year statute of limitation if the ABCMR determines that it would be
in the interest of justice to do so.  In this case, the ABCMR will conduct
a review of the merits of the case to determine if it would be in the
interest of justice to excuse the applicant’s failure to timely file."

15.  Docket Number AR2003087537 also stated in part, "… However, the
applicant did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case."

16.  By letter dated 1 October 2004, the applicant's battalion commander
stated he currently has a shortage of three captains.  The applicant would
source one of those positions.

17.  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 major, an individual must have completed 7 years
time in grade as a captain, Combined Arms and Services Staff School, and an
officer advanced course on or before the convening date of the respective
promotion board.

18.  Army Regulation 135-155, chapter 2 states that Headquarters,
Department of the Army (HQDA) is the approval authority for all requests
for exception of nonstatutory promotion requirements, which include
education requirements.  Requests for exception to nonstatutory promotion
requirements will be forwarded with complete justification.

19.  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 HQDA.

20.  Army Regulation 135-155 consists of five chapters.  The version in
effect at the time was 28 pages long.

21.  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 captain is 39 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 the U. S. Army Human Resources Command – St. Louis
informed the Board analyst that waivers to age criteria may be considered.

22.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) states that, before
     1 June 1984, all personnel incurred a 6-year statutory obligation on
initial entry into the Armed Forces.  Effective 1 June 1984, the length of
the statutory obligation increased to 8 years.

23.  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.

24.  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.

25.  Title 10, U. S. Code, section 14505 states that an Army captain 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.

26.  Title 10, U. S. Code, section 14513 states that a Reserve officer
whose removal from an active status is required by section 14505 shall (1)
be transferred to an inactive status if the Secretary concerned determines
that the officer has skills which may be required to meet the mobilization
needs of the officer's armed force; (2) be transferred to the Retired
Reserve, if qualified and applies for such transfer; or (3) if not
transferred to an inactive status or to the Retired Reserve, be discharged
from the officer's reserve appointment.

27.  On 5 June 2000, the U. S. Court of Federal Claims established, in
Christian v. United States (a case concerning an officer selected by a
Selective Early Retirement Board (SERB) for early retirement), that the
Equal Opportunity instructions used by the SERB were unconstitutional.  On
8 February 2001, that Court ruled that the results of that board are void.
As a result of this decision, section 503 of the National Defense
Authorization Act for FY 2002 enacted Title 10, U. S. Code, section 1558 to
enable members challenging unfavorable treatment by a selection board to
apply to their Service Secretary for consideration by a special board or a
special selection board.

28.  Title 10, U. S. Code, section 1558(a) states that the Secretary of a
military department may correct a person's military records in accordance
with a recommendation by a special board.  Section 1558(c) states that the
Secretary of the military department concerned shall ensure that an
involuntarily board-separated person receives relief…if the person, as a
result of a correction of the person's military records under subsection
(a), becomes entitled to retention on or restoration to active duty or to
active status in a reserve component.

29.  Title 10, U. S. Code, section 1558(e)(2) states that the Secretary of
each military department may prescribe regulations to carry out this
section, including the circumstances under which consideration of a
person's case by a special board is contingent upon application by or for
that person.

30.  Army Regulation 15-185 (Army Board for Correction of Military Records)
and Title 10, U. S. Code, section 1552 govern operations of the ABCMR.

31.  In the processing of this case, an advisory opinion was obtained from
the Chief, Personnel Division, NGB.  That office quoted Army Regulations
135-155 and 135-175, as also cited above.  That office quoted Army
Regulation 135-100  which provides that soldiers separated from any
component for the reason of being twice passed over for promotion cannot be
reappointed.  Waiver applications are available only to individuals
undergoing civilian internship or residency training.  That office also
quoted National Guard Regulation 600-100, which states that Reserve
commissioned officers or warrant officers twice nonselected for promotion
by a Reserve selection board are ineligible for federal recognition and
waiver.

32.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He rebutted by restating his original contentions.
In addition, he stated that he is presently performing, while in his
enlisted status, the duties of the battalion "Battle Captain," operating
the battalion Tactical Operations Center. The fact that he has not
completed academic courses to qualify him for promotion to the rank of
major has had no apparent adverse effect upon the performance of those
duties.  He requests that the Secretary of the Army convene a special board
to determine that he is entitled to be restored to active duty or to an
active status in a Reserve component [as a commissioned officer].

33.  With his rebuttal, the applicant provides letters of support from The
Adjutant General of Mississippi (dated 15 October 2004); his brigade
commander (dated 24 September 2004); his battalion commander (dated 20
September 2004); and from his father (dated 20 September 2004).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested separation from the ARNG and transfer to the
USAR in early 1991.  He was transferred as requested.  He was subsequently
nonselected for promotion to USAR major in 1997 and 1998 and discharged
from the USAR as a result being twice nonselected for promotion.

2.  By letter dated 1 February 1991, the applicant was notified that he had
been considered for promotion to the next higher grade but he was not
recommended for promotion.  Although this letter appears to have been
erroneously issued, it informed him that one of the reasons for his
nonselection could have been his failure to complete the military education
requirement.  His attention was invited to the education requirement for
promotion as specified in chapter 2 of Army Regulation 135-155.  Therefore,
7 years prior to his discharge he had clear warning that he did not meet
the requirements for promotion.

3.  As noted above, the February 1991 letter directed him to Army
Regulation 135-155.  A quick reading of the table of contents would have
directed his attention to chapter 4, which would have informed him of the
consequences of being twice nonselected for promotion.

4.  The applicant's terminal date of his Reserve military service
obligation was not 10 August 1992.  The evidence of record shows he
initially entered the Armed Forces on 19 May 1981 (or 7 months and 5 days
earlier).  His Reserve obligation therefore ended no later that 18 May
1987.  Since he was a commissioned officer, he could not have been
discharged without his consent except as authorized by law.

5.  The applicant had personal affairs to attend to after his 1991
separation from the ARNG and could not keep up with his military education.
 Even though an officer may not be discharged without his consent, he had
the option of requesting discharge rather than transfer to the USAR.  A
discharge would have had the effect of "stopping the clock" until he felt
secure enough to return to a fully active military status.
6.  The statute allows the Services to offer three options to officers
twice nonselected for promotion to major.  The Army has not elected to
offer the first option (transfer to an inactive status if the Secretary
concerned determines that the officer has skills which may be required to
meet the mobilization needs of the officer's armed force) and it appears
the applicant was not eligible for the second option (transfer to the
Retired Reserve).  Therefore, he was required by law to be discharged after
being twice nonselected for promotion.

7.  The applicant has misunderstood the citing of Title 10, U. S. Code,
section 1552 in Docket Number AR2003087537.  The Board's decision was not
based on this citation.  Section 1552 merely states that an individual must
file an application to the Board within 3 years of the alleged error or
injustice.  The Board may excuse failure to timely file if it would be in
the interest of justice to do so.  To determine whether it would have been
in the interest of justice to do so in the applicant's case, the Board
carefully reviewed the merits of his case.  However, it was determined that
the facts of his case did not provide compelling evidence to show that it
would have been in the interest of justice to do so.

8.  The applicant also misunderstood the intent and provisions of Title 10,
U. S. Code, section 1558.  This section of the law was enacted as a remedy
for the court-determined unconstitutionality of the Equal Opportunity
instructions used by certain selection boards and similar circumstances.
The section enables soldiers to challenge unfavorable treatment by a
selection board by applying to their Service Secretary for consideration by
a special board or a special selection board.  The Secretary may then
correct that person's military records in accordance with a recommendation
by the special board.  Not all requests for such consideration must be
granted.

9.  Since the applicant does not contend that his nonselection for
promotion was unfair due to any Equal Opportunity instructions given to
those selection boards nor other board errors, it appears he is not a
candidate for application for consideration by a special board or a special
selection board.  Therefore, the remedy offered by Title 10, U. S. Code,
section 1558 is not applicable to him.

10.  Notwithstanding all of the above, it is acknowledged the applicant is
infantry-trained with prior experience as an infantry officer.  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 10
August 1992.

11.  It is unclear if the applicant understood the impact of requesting
transfer to the USAR Control Group (Reinforcement) rather than discharge in
1992.  It is clear that his family and business obligations precluded him
from committing the time and effort to remain in the Reserve components.
12.  It is also noted that the applicant is now wishing to serve as an
infantry soldier at a time of armed conflict.  His chain of command attests
to his commitment, ability, and leadership.  The Army needs trained,
qualified, and competent leaders who are willing to command our soldiers in
combat.

13.  There are appropriate procedures for determining the applicant's
qualifications to be reappointed as an infantry captain.  By correcting his
records to show he was discharged on 10 August 1992 his 1998 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 FULL RELIEF

__mdm___  __lds___  __lgh___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant amendment of the ABCMR’s decision in Docket Number AR2003087537
dated 22 January 2004.  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 10 August 1992;

     b.  voiding his 1997 and 1998 nonselects for promotion; and

     c. voiding his 13 October 1998 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 his
commission as a captain in the Mississippi National Guard.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003944                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|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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