RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 November 2005
      DOCKET NUMBER:   AR2004100126


      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. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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, who is the wife of and who has power of attorney for,
the service member in question, requests that her husband’s enlistment in
the Army National Guard (ARNG) be voided.

2.  The applicant states that her husband was not selected for major in
July 1997 due to material error.  This was recognized by a special
selection board (SSB) which selected him for promotion to major in 2003.
She now needs her husband’s enlistment voided so he can be re-commissioned.

3.  In a letter to the Board, the applicant explains that her husband was
erroneously told that he had to enlist in the ARNG to start the SSB
process.  She then chronicles the people she has talked to and the
information she received from those people in the attempt to revert her
husband from pay grade E-4 (specialist) to pay grade O-4 (major).

3.  The applicant provides:

      her power of attorney;

      the orders promoting the applicant’s husband to major dated 19
December 2003.  This was based on an SSB which adjourned on 18 June 2003
under the promotion criteria of the 1997 Reserve Component Army Medical
Department (AMEDD) major promotion board.  This board was approved by the
President of the United States on 22 July 1997;

      the applicant’s husband’s 8 January 2003 request for promotion
reconsideration.  In that request, he stated that:

            - he was told he wasn’t promoted because he had not completed
the civilian and military educational requirements for promotion;

            - his 26 July 1996 Combined Arms Services and Staff School
diploma was missing from his Official Military Personnel File (OMPF), as
well as one Officer Evaluation Report;

            - he had three periods of service which were non-rated;

            - while he had completed the academic hours for his bachelors
degree in the spring of 1996, he did not receive the actual diploma until
May 1997;
            - he wasn’t counseled on his options when he was considered for
promotion the second time and not selected.  In particular, he wasn’t
counseled on his right to request an SSB; and

            - since he had over 16 years of qualifying service for retired
pay at age 60, he wanted to complete his military career.  In order to do
that, he enlisted in the ARNG in May 2002 in pay grade E-4.

4.  The applicant also submits a letter from the University of Mobile,
dated 5 December 2002.  In that letter the Registrar stated that the
applicant’s husband had participated in the graduation ceremony in May
1997.  However, the university was unable to give the applicant’s husband
his diploma at that time.  He had incomplete grades in three of his classes
which weren’t “turned in” by the professors until July 2000.

5.  The applicant also submits excerpts from her husband’s OMPF.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s husband enlisted in the ARNG on 28 January 1982, was
promoted to pay grade E-5, and was honorably discharged from his enlisted
status on 29 June 1984 due to his appointment as a second lieutenant the
following day.

2.  He served continuously in the ARNG, being promoted to first lieutenant
on 29 June 1987 and to captain on 2 October 1989.  He served in Saudi
Arabia during Operation Desert Storm.

3.  He was honorably discharged on 1 February 1998 due to being considered
twice for promotion to major, but not being selected.

4.  The 1997 AMEDD Reserve Component Selection Board (RCSB) convened on 14
January and adjourned 31 January 1997.  The President approved the board on
22 July 1997.

5.  Departmental officials with the Office of Promotions, Reserve
Components, Total Army Personnel Command (PERSCOM) determined that the
applicant was entitled to promotion consideration by an SSB based on
material error.

6.  A Promotion Memorandum dated 19 December 2003 was issued to the
applicant showing he was reconsidered for promotion to major by a
Department of the Army SSB and selected for promotion under the 1997
criteria with a date of rank of 22 July 1997.

7.  On 4 February 2004, the ARNG revoked its 15 January 1998 discharge
order pertaining to the applicant.

8.  On 13 October 2004, the ARNG discharged the applicant from his
enlistment in the ARNG.

9.  Army Regulation 135-155, paragraph 2-9, Civilian education
requirements, states that effective 1 October 1995, no person may be
selected for promotion to the Reserve grade of CPT unless, not later than
the day before the selection board convene date, that person has been
awarded a baccalaureate degree from an accredited institution recognized by
the Secretary of Education or, within the 3 years preceding promotion, the
officer has earned a baccalaureate degree from an unaccredited educational
institution that has been recognized by the Department of Defense (DOD) for
purposes of meeting officer educational requirements. This requirement does
not apply to a person who is appointed in a health profession for which a
baccalaureate degree is not condition of original appointment or
assignment.

10.  This paragraph continues that baccalaureate degrees required for
Reserve promotion to MAJ or above, as specified below, must be completed
not later than the day before the selection board convene date.

      (1) All commissioned officers not previously appointed to or
Federally recognized in the grade of CPT before 1 October 1995 must meet
the baccalaureate degree requirement that is applied to CPT;

      (2) All commissioned officers (other than AN officers) initially
appointed on or after 1 October 1987 must possess a baccalaureate degree
from an accredited institution recognized by the U.S. Secretary of
Education or have earned a baccalaureate degree from an unaccredited
educational institution that has been recognized by DOD for purposes of
meeting officer educational requirements.

11.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve and ARNG officers.  This regulation specifies officers
selected by an SSB are eligible for the same date of rank that they would
have received by the original board in which the error occurred.  The
regulation further specifies that the promotion effective date (pay
purposes) for officers with a promotion eligibility date prior to the SSB
would be the adjourning date of the mandatory board or the adjourning date
of the SSB criteria by which recommended.

12.  Title 10, United States Code, section 14502e(1), specifies that an
officer who is placed on a promotion list as a result of recommendation by
an SSB shall, as soon as practicable, be appointed to the next higher grade
in accordance with the law and policies which would have been applicable
had he been recommended for promotion by the board which should have
considered him or which did consider him.

13.  Army Regulation 135-175, paragraph 5–2, Conditions under which
appointment is automatically vacated, states that the Reserve appointment
of any officer is automatically vacated when that officer enlists as a
Reserve of the Army for service in the ARNGUS or USAR.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, her husband did not have a
valid baccalaureate diploma prior to the 1997 AMEDD RCSB.  However, this is
not an issue in this case because he did not require a baccalaureate
degree.  He was “grandfathered” by both his date of initial commission and
his date of promotion to captain.

2.  Notwithstanding the above, the applicant’s husband is entitled to
voiding both his discharge from the ARNG and of his enlistment contract.
This is based on his selection for promotion to major by the SSB.

3.  The applicant is also entitled to reinstatement to his previous Reserve
commissioned status and promotion to major on his date of eligibility as
determined by appropriate Departmental officials using the criteria cited,
provided he is otherwise qualified and meets all other prerequisites for
promotion.  The first portion of this entitlement has already been
accomplished by the ARNG’s revocation of its order discharging the
applicant as an officer.  His promotion to major must still be
accomplished.

4.  However, the applicant’s enlistment in the ARNG effectively vacated his
now validated commissioned status.  The ARNG’s discharge of the applicant
from his enlisted status does not change this fact.  The applicant’s
appointment was vacated when he enlisted.  A subsequent discharge from
enlisted status does not invalidate the enlistment.

5.  In view of the above, there is no necessity for the Board to revoke the
applicant’s discharge as an officer.  This has already been accomplished.
However, the applicant’s enlistment in the ARNG and his discharge from his
enlisted status must be voided.  Also, he must be promoted to major.

6.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

___mkp _  ___jrs ___  ___rld__  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 all
Alabama Army National Guard records, the National Guard Bureau records, and
the Department of the Army records of the individual concerned be
corrected:

      a.  by voiding the 17 May 2002 ARNG enlistment of the individual
concerned;


      b.  by voiding orders 287-002, dated 13 October 2004;


      c.  by showing he was promoted to major on his date of eligibility
therefore, as determined by appropriate Departmental officer using the
criteria cited, provided he was otherwise qualified and met all other
prerequisites for promotion;


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

      e.  that all documents related to his now-voided non-selection for
promotion by the RCSBs and his two discharges be expunged from his official
military records; and

      f.  by offsetting the pay received by the applicant in his now voided
enlisted status and payment of any difference that may be due.




            ______Margaret K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100126                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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