RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 April 2005
      DOCKET NUMBER:  AR20040009433


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 that his
Army National Guard (ARNG) enlistment be voided, that his records be
corrected to show that he accepted promotion to major, and that he be given
the difference in pay between pay grade E-5 and pay grade O-3 and O-4.

2.  The applicant states that the Board did not have the 30 May 2002
memorandum that notified him of his second nonselection for promotion to
major.

3.  The applicant states that, as far as the relief for cause officer
evaluation report (OER), he has denied the allegation that he forged a
signature.  He was given permission to sign an applicant's recommendation
form and the incident could have been handled in-house if his rating
officer had had a chance to deal with it.  The three OERs that followed
were all very good.  After the incident, the Full-Time Support Management
Directorate decided he should remain on an Active Guard Reserve (AGR)
status.  He came off active duty only because his father was very ill.

4.  The applicant states that, after two promotion passovers, the Army
Nurse Corps believed that his skills as a nurse were still valuable by
selecting him for retention as a captain.  They subsequently selected him
for promotion to major.

5.  The applicant also states that he would agree with the statement in the
DISCUSSION AND CONCLUSION section that, "The requirement to be discharged
from one status when entering into another status is well known."  However,
the U. S. Army Human Resources Command – St. Louis (USAHRC – STL) webpage
and two different majors in (his ARNG) command indicated to him that he was
"dual status."  He did not make "a personal decision to enlist prior to
receiving official notification of non-selection for promotion."  He made
that decision after his 30 May 2002 notification of his non-selection and
before the    24 September 2002 notification of Selective Continuation.
There is a slot for a nurse in the 278th Armored Cavalry Regiment.  He is
willing to be deployed to Iraq as a Nurse Corps major with the 278th or any
other unit.

6.  The applicant provides a memorandum, subject:  Notification of
Promotion Status, dated 30 May 2002; and two letters from his Senator, both
dated           18 August 2004.

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
AR2003099436 on    5 August 2004.

2.  The memorandum dated 30 May 2002 is new evidence which will be
considered by the Board.

3.  The applicant was born on 2 August 1948.  He was commissioned a second
lieutenant, U. S. Army Reserve (USAR), Army Nurse Corps on 18 September
1988.  He entered active duty in an AGR status on 9 September 1990.  He was
promoted to captain on 16 March 1995.  He received a relief-for-cause OER
with an ending period of 16 December 1997.  He was honorably released from
AGR status, for personal reasons, on 23 November 1999 and transferred to
the USAR Control Group (Reinforcement).  He was assigned to a Troop Program
Unit (TPU) on 1 June 2000.

4.  On 23 August 2001, the applicant was notified that he was considered
for promotion to major but not selected.

5.  On 30 May 2002, the applicant was notified that he was considered for
promotion to major but not selected.  He was informed that he must be
discharged and his removal date was not later than 1 November 2002.

6.  On 16 August 2002, the applicant enlisted in the ARNG in pay grade E-4
for   3 years.  At that time he had over 13 years of qualifying service for
a Reserve retirement.  He apparently was not removed from the Reserve
Active Status List.

7.  By memorandum dated 24 September 2002, and apparently received by him
on or about 10 October 2002, the applicant was notified that, even though
he had not been recommended for promotion, a Selective Continuation board
recommended him for continuation in his present grade.  Unless he
specifically declined continuation, he would be continued until 22 August
2005.  Future promotion selection boards would consider him for promotion
as long as he remained eligible for consideration.

8.  The applicant was selected for promotion to major by the 2003 promotion
board that convened on 3 February 2003 and recessed on 5 March 2003.  He
was apparently notified of this promotion around June 2003.

9.  The USAHRC - STL webpage provided by the applicant was printed out by
him on 29 October 2003.  That document shows his current organization as
the Army National Guard of the United States, his grade as captain, his
mandatory removal date as 1 November 2002, and his branch as Army Nurse
Corps.

10.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau.  That office recommended
disapproval of the applicant's request.  It noted that the circumstances
[of his separation] are unfortunate; however, the sequence of events did
not indicate an error in his record had occurred.  His proactive actions to
enlist prior to separation as twice non-selected for promotion could have
served him better had he waited until he was closer to his mandatory
removal date.

11.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He responded by stating that it did not surprise him
that the National Guard Bureau made such a recommendation.  He stated they
are obviously more concerned about their end strength than they are about
an individual Soldier's situation.  He stated they apparently did not
understand his situation as a then-54-year old Soldier with 14 years of
commissioned service.  He had to apply for an age waiver to enlist, and he
had no idea how long it was going to take for him to secure a slot as an
enlisted Soldier.  The Board has the 30 May 2002 memorandum that was
missing before.  It also has Senator T___'s letter recommending approval of
his request.  Most would agree that a person as close to retirement as he,
who has the nursing qualification that he has, would be able to serve the
Army best in the capacity of an Army Nurse Corps Officer.  Due to the
unfortunate course of events outlined in his request, he should be allowed
to return to the Army Nurse Corps and accept the promotion to major that he
was selected for.

12.  Army Regulation 135-175 (Separation of Officers) states that a
commissioned officer vacates his Army Reserve appointment when he accepts a
Regular Army appointment in a commissioned grade; accepts a promotion to a
higher Reserve grade; or enlists as a Reserve for service in the Army
National Guard of the United States or the USAR.

13.  Army Regulation 600-39 prescribes policies governing the Army’s Dual
Component Personnel Management Program.  This program allows the Department
of the Army to quickly meet mobilization requirements through procurement
of trained commissioned and warrant officers from enlisted and warrant
ranks of the Regular Army.  The concept of the program is to quickly meet
the mobilization needs for officers through procurement of trained
commissioned and warrant officers.  Current active duty members are ready
assets during times of rapid expansion of the Active Army.  They can be
mobilized to assume greater responsibilities quickly.

DISCUSSION AND CONCLUSIONS:

1.  The Board has carefully reconsidered the applicant's contentions and
the circumstances surrounding his separation and subsequent promotion.

2.  It is unfortunate that someone told him he was "dual status; however,
dual status is a program whereby Regular Army enlisted Soldiers or warrant
officers hold a dual Reserve component commissioned status."  The applicant
did not enlist in the Regular Army.

3.  The 30 May 2002 memorandum had clearly informed the applicant that he
would be discharged, not retained in the USAR in his commissioned officer
status.  Presumably there was nothing in his ARNG enlistment contract that
promised him he would retain his USAR commissioned officer status.

4.  In addition, the USAHRC – STL webpage does not indicate that he was
"dual status" although it does contain erroneous data.  It shows he was an
Army Nurse Corps captain in the Army National Guard of the United States
when he was in fact an enlisted Soldier.  Nowhere does it indicate he was
also in the USAR.  This document, printed out 29 October 2003, also shows
he had a mandatory removal date of 1 November 2002, almost a year earlier.

5.  The applicant could have searched that webpage earlier, noted the error
concerning the still-listed mandatory removal date if not the other errors,
and, by contacting USAHRC – STL, discovered that they were not aware he had
enlisted in the ARNG.

6.  In addition, the applicant was a USAR officer when he was nonselected
for promotion to major.  He could have contacted USAHRC – STL before
enlisting and received information on how his enlistment in the ARNG would
have affected his commissioned officer status.

7.  The applicant was erroneously considered for promotion to major by the
2003 major promotion board because he had vacated his Army Reserve
appointment when he enlisted in the ARNG 6 months earlier.

8.  The Board acknowledges the applicant's willingness to be deployed to
Iraq as a Nurse Corps major with the ARNG's 278th Armored Cavalry Regiment
or any other unit.  However, he was promoted in the USAR.  He would have to
be in the USAR Individual Ready Reserve (IRR) to accept that promotion.
There is no guarantee that he would be mobilized from the IRR.  He could
then be appointed in the ARNG and transferred to the 278th Armored Cavalry
Regiment; however, there is no guarantee that he would receive Federal
Recognition in that appointment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __kah___  __lf____  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 AR 2003099436 dated 5 August 2004.




            __Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009433                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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