RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040009864


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 restoration of his rank as a commissioned
officer in the Army National Guard. (ARNG)

2.  The applicant states that his Report of Separation and Record of
Service (NGB Form 22) reflects that he was passed over for promotion.  He
states that he resigned his commission and even if he was passed over,
military regulations from which he was advised state that an individual
will be passed over twice before he or she is discharged.  He states that
his Officer Evaluation Reports (OERs) for the 3-year period were average
and that there is nothing in this records that stated that he was not in a
promotable status.

3.  The applicant provides in support of his application, copies of
reassignment orders; copies of Service School Academic Evaluation Reports
(AERs); copies of his OERs; a copy of his appointment orders; a copy of his
application for Federal Recognition; a copy of his Oaths of Office; a copy
of his initial appointment special orders; a copy of his ARNG discharge
orders; a copy of the Proceedings of a Federal Recognition Examining Board;
a copy of the Appointment of Federal Recognition Board Members for
Massachusetts memorandum; a copy of his Certificate or Release or Discharge
from Active Duty (DD Form 214); a copy of an OER referral; a copy of his
NGB Form 22; a copy of the first page of electronic mail between a
specialist (E-4) and the Director of Army Personnel, Maryland Army National
Guard (MDARNG); a copy of a letter from the Assistant Chief of Staff, Joint
Force Headquarters, Massachusetts National Guard (MAARNG); a copy of a
portion of his MDARNG Enlistment Contract (DD Form 4/2); a copy of his
Reservation Sheet; and a copy of a portion of Army Regulation 135-175 (Army
National Guard and Army Reserve Separation of Officers).

CONSIDERATION OF EVIDENCE:

1.  On 2 January 1985, he enlisted in the MAARNG for 8 years, in the pay
grade of E-1 and he successfully completed training as an Avionics
Mechanic.

2.  The applicant was advanced to the pay grade of E-2 on 30 December 1985,
to the pay grade of E-3 on 20 July 1987 and to the pay grade of E-4 on 1
August 1988.

3.  He entered the Massachusetts Military Academy on 19 May 1990 for the
purpose of completing Officer Candidate School (OCS) and upon entrance he
was promoted to the pay grade of E-6.  The applicant applied for Federal
Recognition as an ARNG officer on 14 August 1991.  He went on to
successfully complete OCS on 24 August 1991.

4.  The applicant was honorably discharged on 24 August 1991, under the
provisions of ARNG Regulation 600-200, for the purpose of accepting an
appointment as a commissioned officer.  Accordingly, on 25 August 1991 (the
date that he received Federal Recognition), he accepted an appointment as a
second lieutenant in the ARNG of the United States.

5.  The available records show that his OERs were satisfactory.  On 24
August 1994, the applicant was honorably released from the MAARNG under the
provisions of ARNG Regulation 635-100, in the rank of second lieutenant and
he was transferred to the United States Army Reserve Control Group
(Reinforcement).  The NGB Form 22 that he was furnished shows that the
reason for his release was a failure to be promoted.

6.  On 26 July 1995, the applicant was notified that he had been considered
for promotion and that he was found to be not qualified for promotion at
that time.  In the notification, he was informed that officers of his grade
who are not selected for promotion would be retained until their military
obligation expires.  He was further informed that he would be retained and
then discharged on the date shown in "A" above.  The notification has no
date reflected next to the letter "A".

7.  The available evidence of record indicates that the applicant is
currently a member of the MDARNG serving in the rank of sergeant (E-5).

8.  During the processing of this application, an advisory opinion was
obtained from the Chief, Personnel Division, National Guard Bureau who
opines that Army Regulation 135-175 does state that an officer who has
completed his statutory military service obligation will be discharged for
failure to be selected for promotion after second consideration by a
Department of the Army Reserve Components Selection Board (RCSB).  However,
this part of AR 135-175 only pertains to first lieutenants, captains, and
majors.  The Chief opines that second lieutenants do not go before a RCSB
for promotion; therefore, it appears that the applicant was given erroneous
regulatory guidance.  The Chief further opines that National Guard
Regulation 600-100, paragraph 8-8c states that a second lieutenant who is
not promoted to first lieutenant on or before the date upon which 3 years
of promotion service is completed must be separated in accordance with
National Guard 635-100.  The Chief opines that per Army Regulation 135-175,
paragraph 4-6, a second lieutenant who has completed the required statutory
military service obligation will be discharged upon being considered but
not recommended for promotion by the appropriate commander on or before the
date on which the officer completes 3 years of promotion service.

9.  In the advisory opinion, the Chief, indicated that this advisory
opinion was coordinated with the Personnel Policy, Programs and Manpower
Division and that individuals within that division opine that the applicant
was separated at 3 years time in grade in accordance with paragraph 4-6 of
Army Regulation
135-175 which was in effect at the time of his failure to be promoted.  The
Chief also opines that the applicant was separated in accordance with the
applicable laws and regulation and he recommends that the applicant's
request be denied.

10.  On 15 April 2005, a copy of the advisory opinion was forwarded to the
applicant for his information and possible rebuttal.  To date, there has
been no response received regarding the advisory opinion.

11.  National Guard Regulation 635-100, prescribes the policies and
procedures governing the separation of commissioned officers of the ARNG.
Paragraph 5 of this regulation provides the criteria for the termination of
state appointment.  The regulation provides, in pertinent part, that unless
contrary to state law and regulation, the appointment of an ARNG officer
should be terminated when a second lieutenant is not promoted on or before
the date he completes 3 years of promotable service.  The names of second
lieutenants that will not be promoted will be reported to the ARNG
Personnel Center 60 days before completing 3 years.

12.  Army Regulation 135-155, prescribes the policies and procedures for
the separation of ARNG and Army Reserve officers.  This regulation
specifies that an officer in the grade of second lieutenant who has
completed the required statutory military service obligation will be
discharged upon being considered but not recommended for promotion by the
appropriate commander on or before the date on which the officer completes
3 years of promotion service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided an insufficient justification for restoring
his commission.  In accordance with applicable regulation, he was properly
released from the MAARNG and his Federal Recognition was terminated.

2.  His contentions have been noted.  However, he was clearly misinformed
regarding the policies and procedures for separating an ARNG second
lieutenant after being passed over for promotion.  In accordance with the
applicable regulations, he was separated as a result of reaching his
maximum time in grade once he completed 3 year of promotion service and had
not been promoted.  Therefore, the NGB Form 22 that he was furnished at the
time of his separation appropriately reflects that he was separated for
failure to be promoted.

3.  There does not appears to have been an error or injustice made in this
case and in order to justify correction of a military record the applicant
must show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____RB _  ___LF___  ___LD___  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 for correction of the
records of the individual concerned.





                                  _____Ronald Blakely___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009864                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19940824                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  14   |102.0000/OFFICER APPOINTMENTS           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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