RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 November 2004
      DOCKET NUMBER:  AR2004106064


      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. James C. Hise                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Hubert O. Fry                 |     |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, in effect, that his records be corrected to
show he was discharged from the U. S. Army Reserve (USAR) in 1991 and that
his commission as a captain in the Maryland Army National Guard (MDARNG) be
restored.

2.  The applicant states that, after his release from active duty after
Operation Desert Storm, it was his decision to make a clean break from the
service.  He had already made a commitment to both his family and his
civilian employer and, after his return from active duty, he was expected
to complete his employer's management program.  The work schedule of that
program prevented him from serving in either the Active Guard or the Ready
Reserve.  With that in mind, he made the decision to sever his ties with
the military.

3.  The applicant states that when he tried to return to the military in
February 2001, he discovered that he had been a two-time non-select for
promotion to major.  He thought his only choice was to be reconsidered for
promotion.  The Board made a favorable decision on his request for
promotion reconsideration in 2002.  Unfortunately, when his records went
before the special selection board, his last Officer Evaluation Report
(OER) was missing from his files.  Consequently, it appeared that there
existed a lengthy gap (December 1989 through September 1994) of inactivity
in his records.  The missing OER covered 50 percent of the unaccounted-for
time and contributed to his non-selection.  While searching for that
missing OER, he discovered an NGB Form 22 (Report of Separation and Record
of Service) that was submitted without his signature.  That NGB Form 22 is
wrought with errors.  Had it not been submitted, he would not be in his
current predicament.

4.  The applicant further states that it was always his intention to come
back in as a captain and, unfortunately, through a series of administrative
mistakes he has had to enlist as an E-5.  To date he has served as an E-5
for 35 months working as an intelligence sergeant in the battalion
headquarters.

5.  In a conversation with the Board analyst on 3 November 2004, the
applicant stated he did not have a copy of his request for resignation.
The MDARNG does not have a copy of his request.  He submitted the request
while with the 20th Special Forces Group at Fort Bragg, NC right after
Operation Desert Storm.  He doubts if the paperwork ever made it off Fort
Bragg.

6.  The applicant provides the Board's 29 January 2002 action; MDARNG
memorandum dated 16 September 1990; an NGB Form 22 for the period ending 1
April 1992; and an email from the U. S. Army Reserve Personnel Command (AR-
PERSCOM) dated 24 April 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on   1 April 1992.  The application submitted in this case is
dated 19 March 2004.

2.  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.

3.  The applicant was born on 2 May 1959.

4.  The applicant initially was commissioned in the Regular Army on 25 June
1982, promoted to captain on 1 December 1985, and discharged (unqualified
resignation) on 16 December 1989.  The message approving his request for
resignation stated his request for a Reserve appointment had been referred
to Commander, PERSCOM, St. Louis, MO.

5.  On 30 May 1990, the applicant was commissioned a captain in the MDARNG.
His NGB Form 22 shows he was awarded primary specialty 18A (Special Forces
Operations Officer) on that date.

6.  The applicant's unit, Company C, 1st Special Forces Battalion, 20th
Special Forces Group, was apparently ordered to active duty in support of
Operation Desert Shield/Storm around September 1990 until around August
1991.

7.  On an unknown date, the applicant requested resignation.  His NGB Form
22, item 9 (Command to which Transferred) shows he was transferred to the
USAR Control Group Ready Reserve.  Item 11 (Terminal Date of
Reserve/Military Service Obligation) shows a terminal date of "2119 May
02."  Item 18 (Remarks) shows he was assigned to the Ready Reserve to
complete "27 years 1 month and 1 day contractual obligation."  Item 20
(Signature of Person Being Separated) shows the applicant was not available
to sign the form.

8.  While in the USAR, the applicant was considered for promotion by the
1995 and 1996 major promotion boards.  He was not selected for promotion by
either board apparently because he had not completed the Combined Arms and
Services Staff School and, on 3 September 1996, he was discharged from the
USAR.

9.  On 29 January 2002, the Board initially considered the applicant's
request that he be reconsidered for promotion to major.  Based on his
promotion eligibility date, he should have been considered for promotion in
1994, before the Combined Arms and Services Staff School became a
requirement for promotion to major.  The Board granted the applicant's
request based on erroneous non-consideration and his records were sent to
an SSB.  He was not selected for promotion to major by the SSB.

10.  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 and 12 years time in service, whichever is the
latest.  Completion of the Combined Arms and Services Staff School on or
before the convening date of the respective promotion board was required
effective 1 October 1994.

11.  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 Headquarters, Department of the Army (HQDA).

12.  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.
In pertinent part, it states 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.

13.  Army Regulation 135-100 also provides age limitations as 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.

14.  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.

15.  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.

16.  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.

17.  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.

18.  National Guard Regulation 635-100 (Termination of Appointment and
Withdrawal of Federal Recognition), paragraph 5a(3) states that an officer
may tender a resignation.  If accepted, the officer will be separated from
his ARNG appointment.  The resignation may also be concurrent from the ARNG
and the Reserve of the Army for officers without a remaining service
obligation.

19.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) states that Reserve
officers attending service schools incur a Ready Reserve obligation of at
least    2 years.  The obligation is incurred only if the course of
instruction exceeds       15 consecutive days of active duty for training.
This obligation does not change any other obligation to serve in the Ready
Reserve.  It may run concurrently with an existing obligation.

20.  Army Regulation 350-100 (Officer Active Duty Service Obligations)
states, in pertinent part, that officers graduating from the Special Forces
Detachment Officer Qualification Course incur a 36-month active duty
service obligation to begin on the completion or termination of the course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from the ARNG based upon his request for
resignation.  He should have known that the NGB Form 22 was a separation
document and he would have received this form whether he was totally
separated from all service connections (i.e., the ARNG and the USAR) or
only from his ARNG service.  He should have been inquiring about the form
within a reasonable period of time after his April 1992 separation.

2.  Since the applicant had no statutory service obligation, a resignation
would normally have resulted in his discharge from the ARNG and the USAR.
However, his NGB Form 22 shows he was awarded specialty 18A on 30 May 1990.
 Formal school attendance is normally required for award of this specialty.
 For that reason, it appears he may have had a remaining service obligation
based upon school attendance.  In that case, his remaining obligation would
have been either 2 years or 3 years.  Certainly items 11 and 18 of his NGB
 Form 22 contain mistakes regarding his remaining service obligation
(neither a 127 year nor a 27 year remaining obligation is reasonable).
However, a remaining obligation until 29 May 1993 is reasonable and
expected based upon the limited evidence available.  Therefore, it appears
his transfer to the Ready Reserve was proper and, since he was a
commissioned officer, he could not have then been discharged upon the
expiration of his service obligation without his consent except as
authorized by law.

3.  Had the applicant exercised reasonable prudence he would have had a
copy of the NGB Form 22 in his possession around 1992 and known he had been
transferred (properly, it appears) to the Ready Reserve.  Even though an
officer may not be discharged without his consent, the applicant would have
had the option of requesting discharge after the expiration of his service
obligation.  A discharge would have had the effect of "stopping the clock"
regarding his USAR promotion considerations.


4.  While in the Ready Reserve, the applicant was nonselected for promotion
to USAR major in 1995 and 1996 and discharged from the USAR as a result
being twice nonselected for promotion.  Later Board action determined he
should have been considered for the first time in 1994 and he was granted a
special selection board; however, he was not selected for promotion by the
special selection board.  Once he was twice nonselected for promotion, he
was required by law to be discharged.

5.  Notwithstanding all of the above, the applicant was a combat arms-
trained officer with a last primary specialty of Special Forces.  The Army
needs trained, qualified, and competent leaders who are willing to command
our soldiers in combat.  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 30 May 1993, the latest likely date a
service school attendance service obligation would have expired.

6.  There are appropriate procedures for determining the applicant's
qualifications to be reappointed as a captain.  By correcting his records
to show he was discharged on 30 May 1993 his 1996 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

__jch___  __le____  __hof___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  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 30 May 1993;

     b.  voiding his 1994 and 1995 nonselects for promotion; and

     c. voiding his 3 September 1996 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 Maryland Army National Guard.




            ___James C. Hise______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106064                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041118                                |
|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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