RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 April 2005
      DOCKET NUMBER:   AR20040005495


      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. John P. Infante               |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 date of rank (DOR) be adjusted from
        26 September 2001 to 2 February 2001.

2.  The applicant states that his promotion letter reflects a DOR of 2
February 2001.  However, orders dated 10 October 2001 reflect a DOR of 26
September 2001.

3.  The applicant provides a memorandum dated 2 February 2001; orders dated
5 January 2001; orders dated 7 March 2001; and orders dated 10 October
2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the U. S. Army
Reserve (USAR) on 13 December 1985.  He was promoted to captain on 11
December 1992.  He was appointed a captain in the Ohio Army National Guard
(OHARNG) on 1 May 1997.

2.  The applicant was considered but not selected for promotion to major by
the 1999 and 2000 Major Department of the Army Reserve Components Selection
Boards.

3.  The applicant was considered by a special selection board for promotion
to major under the 1999 criteria in December 2000 and was nonselected for
promotion.

4.  Orders dated 5 January 2001 separated the applicant from the ARNG
effective 1 February 2001 due to being twice nonselected for promotion and
transferred him to the USAR Control Group (Reinforcement).

5.  On 7 March 2001, the 5 January 2001 orders were amended to change the
effective date of separation to 30 January 2001 and to add in the
additional instructions "Reason: Enlistment into the ARNG."  (The Board
analyst checked with the State, the applicant's unit, and the applicant.
The enlistment contract could not be located.)  Apparently the enlistment
was effective 31 January 2001.

6.  The applicant was considered by a special selection board for promotion
to major under the 2000 criteria in April 2001 and was selected for
promotion to major.

7.  Office of Promotions, Reserve Components, U. S. Total Army Personnel
Command promotion memorandum, dated on 16 August 2001, shows the applicant
was selected for promotion to Major, USAR with a DOR of 19 July 2000.  The
memorandum informed him that, upon final processing, a promotion letter
would be forwarded to him with a DOR of 19 July 2000.

8.  The applicant's promotion letter shows he was selected for promotion to
Major, USAR with a DOR of 2 February 2001.  (On 31 March 2005, the Office
of Promotions, Reserve Components, U. S. Army Human Resources Command – St.
Louis (USAHRC – STL) informed the Board analyst that the date of
    2 February 2001 was based upon the 5 January 2001 orders which
transferred the applicant to the USAR Control Group (Reinforcement)
effective 2 February 2001.  They did not know those orders had been amended
and he had been enlisted in the ARNG.)

9.  State of Ohio, Adjutant General's Department Orders 200-135 dated
      10 October 2001 discharged the applicant from the ARNG as an enlisted
member and as a reserve of the Army effective 25 September 2001 and
appointed him a major in the ARNG effective 26 September 2001.

10.  On 26 September 2001, a Federal Recognition Board recommended the
applicant be granted Federal Recognition.  National Guard Bureau Special
Orders Number 7 AR dated 8 January 2002 granted the applicant Federal
Recognition effective 26 September 2001 for the purpose of transfer from
USAR.

11.  In the processing of this case, an advisory opinion was obtained from
the Special Actions Branch, Office of Promotions, Reserve Components,
USAHRC - STL.  That office recommended denial of the applicant's request
pending additional documentation.  That office noted that no ARNG
enlistment contract on the applicant was available and that his promotion
could be invalid if he had vacated his commission.

12.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

13.  Title 10, U. S. Code, section 14502(e)(3) states that if a report of a
special selection board, as approved by the President, recommends for
promotion to the next higher grade a former officer whose name was referred
to it for consideration, the Secretary concerned may act to correct the
military records of the former officer to correct an error or injustice
resulting from not being selected for promotion by the board which should
have considered, or which did consider, the officer.

14.  National Guard Regulation 600-100 prescribes policies and procedures
governing the appointment, assignment, temporary Federal Recognition,
Federal Recognition, reassignment, transfers between States, branch
transfers, area of concentration designation, utilization, branch detail,
attachment, and separation of commissioned officers of the Army National
Guard (ARNG).  Chapter 8 states that the promotion of officers in the ARNG
is a function of the State.  A commissioned officer promoted by State
authorities has a State status in the higher grade under which to function.
 However, to be extended Federal Recognition in the higher grade, the
officer must have satisfied the requirements prescribed in this chapter.
Paragraph 8-6 states that wearing of insignia of the higher grade is not
authorized until Federal Recognition has been extended by the Chief,
National Guard Bureau.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had been discharged from the ARNG in January 2001 because
he was twice nonselected for promotion to major and immediately enlisted in
the ARNG.  However, he was later selected for promotion to major by a
special selection board and given a DOR of 19 July 2000.  The later DOR of
2 February 2001 was given only because the Office of Promotions, Reserve
Components,  U.SAHRC - STL based it upon the applicant's 5 January 2001
orders which transferred him to the USAR Control Group (Reinforcement)
effective 2 February 2001.

2.  It would be equitable to void the applicant's 30 January 2001 discharge
from the ARNG with reinstatement to his previous Reserve and ARNG
commissioned status, to void his enlistment in the ARNG (even though his
enlistment contract is not available), to show he was promoted to major
with a DOR of 19 July 2000 with entitlement to back pay and allowances
(offsetting any pay and allowances he received as an enlisted member), and
granting him Federal Recognition as a major effective 19 July 2000.

BOARD VOTE:

__jpi___  __reb___  __pbf___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that the
state Army National Guard records and the Department of the Army records of
the individual concerned be corrected by:

     a.  voiding his 30 January 2001 discharge from the Army National
Guard;

     b.  voiding his subsequent, 31 January 2001 enlistment in the Army
National Guard;

     c.  reinstating him to his previous Reserve and Army National Guard
commissioned status;

     d.  placing in his official personnel files an adequate explanation to
show that the gap in his officer evaluation reports, from the dates of his
now-voided discharge to the date of his return to his previous Reserve and
Army National Guard commissioned status, was not caused by any fault on his
part and to ensure that he is not prejudiced thereby in the consideration
of any future personnel actions;

     e.  expunging from his records all documents related to his 2000
nonselection for promotion to major and his January 2001 discharge and
enlistment;

     f.  showing he was promoted to major with a date of rank of 19 July
2000 with entitlement to back pay and allowances; and

     g.  showing a major's position was available for him in the OHARNG as
of    19 July 2000 and amending National Guard Bureau Federal Recognition
Order Number 7 AR dated 8 January 2001 to show that he was extended Federal
Recognition as a major effective 19 July 2000.




            ___John P. Infante____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005495                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050428                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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