RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2005
      DOCKET NUMBER:  AR20050001676


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 commission as a first lieutenant (1LT)
in the New York Army National Guard (ARNG) be reinstated and he be promoted
to captain.  He additionally requests pay and allowances for all drills,
annual training, and other additional duty days that he performed as if his
commission had been reinstated after completing his civilian education.

2.  The applicant states that, due to human and material error, his request
for enlistment was not processed in a timely manner.  During the period 18
June through 5 September 1999, he had requested reversion to an enlisted
status while he pursued his degree.  He was considered for promotion by the
Reserve Components Selection Board (RCSB) and he was passed over for the
third time. However, the November 1999 board should not have considered him
as he had reverted to an enlisted status by that time.  He completed his
degree on              1 February 2001 and reapplied for his commission.
He is currently deployed as a Sergeant with the ARNG.

3.  The applicant provides the 13 exhibits listed at the end of his
attachment to his application.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the ARNG, the applicant was
appointed a second lieutenant in the ARNG on 8 June 1990.  He was promoted
to 1LT on 7 June 1993.

2.  By letter dated 30 July 1998, the Office of Promotions, Reserve
Components, U. S. Total Army Personnel Command (PERSCOM) informed the
applicant he had been considered but not selected for promotion.  The
letter noted he had not completed the required civilian and/or military
education by the day the board convened on 12 November 1997.  By letter
dated 5 October 1998, Headquarters, NYARNG informed the applicant he had
been nonselected for promotion for the first time.

3.  By letter dated 4 May 1999, the Office of Promotions, Reserve
Components, PERSCOM informed the applicant he had been considered but not
selected for promotion.  The letter noted he had not completed the required
civilian and/or military education by the date the board convened on 9
November 1998.  By letter dated 7 June 1999, Headquarters, NYARNG
erroneously informed the applicant he had been nonselected for promotion
for the first time and the           9 November 1999 board would again
consider him for promotion.

4.  By letter dated 19 August 1999, the applicant requested reversion to an
enlisted status to complete his civilian education.  He stated, in part,
"If I remain in the officer ranks then I will be passed over a second time
and to avoid this I am requesting approval to revert back to the enlisted
rank."

5.  On 5 September 1999, the applicant was honorably discharged from the
ARNG for the purpose of enlisting in the ARNG.

6.  In February 2001, the applicant was awarded his baccalaureate degree.

7.  Around March 2001, the applicant applied for reappointment as a
commissioned officer in the ARNG.

8.  On 21 November 2001, the NYARNG called the Office of Promotions,
Reserve Components, PERSCOM in reference to the applicant's promotion
status.  On 23 November 2001, that office informed the applicant he had
been considered and not selected for promotion to captain by boards that
convened in November 1997 and November 1998.  However, after his second
nonselection he had been issued a first time nonselect letter.  That office
voided the erroneous letter and provided him a corrected, second time
nonselect letter.  The corrected letter stated, "As a result of this second
nonselection, you must be discharged in accordance with title 10, U.S.C.
section 14513…Retired Reserve."

9.  In the processing of this case, an advisory opinion was obtained from
the National Guard Bureau.  The advisory opinion noted Army Regulation 135-
155 and National Guard Regulation 600-100 state no person may be selected
for promotion to the grade of captain unless that person has been awarded a
baccalaureate degree from an accredited institution.  Army Regulation 135-
155 also states that a 1LT who twice fails to be selected for promotion to
the grade of captain will be removed from an active status.  Army
Regulation 135-175 states a 1LT who has completed his statutory military
service obligation will be discharged for failure to be selected for
promotion after a second consideration.

10.  The advisory opinion noted no guidance could be found to indicate the
applicant's requests could be approved.  However, per previous guidance,
the state could send NGB a request for an exception to policy to allow
reappointment of a former officer, which would be forwarded to the Army G-1
for consideration if all other appointment requirements are met.

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

12.  On 26 September 2005, the Office of Promotions, Reserve Components
informed the Board analyst the applicant had been identified for
consideration by the 1999 promotion board.  However, his name was deleted
before the board convened because he reverted to an enlisted status.

13.  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 captain, an individual must have completed 5
years time in grade as a first lieutenant, completed resident officer basic
course, and have a baccalaureate degree on or before the convening date of
the respective promotion board.

14.  Army Regulation 135-155, chapter 4 states selection board action is
administratively final.  It states if removal from an active Reserve status
is required by law, the officer must be removed within the prescribed time
limit established for removal.

15.  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.
Paragraph 1-7 states commissioned officers twice passed over for promotion
are not eligible for appointment.

16.  Army Regulation 135-175 (Separation of Officers) states, in pertinent
part, 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.

17.  Title 10, U. S. Code, section 14504 states an Army first lieutenant
who has failed 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was first considered for promotion to
captain by the board that convened in November 1997.  The evidence shows he
was considered for the second time for promotion to captain by the board
that convened in November 1998.

2.  The Office of Promotions, Reserve Components, PERSCOM letter dated
  4 May 1999 failed to inform the applicant he had been considered but not
selected for promotion for the second time.  The Headquarters, NYARNG
letter dated 7 June 1999 erroneously informed him he had been nonselected
for promotion for the first time and the 9 November 1999 board would again
consider him for promotion.  Nevertheless, the applicant provides no
evidence to show he was not aware he had been considered but nonselected
for promotion by the board that convened in November 1997 thereby making
his nonselection for promotion by the November 1998 board his second
nonselection.

3.  The available evidence shows the applicant requested reversion to an
enlisted status in August 1999, after he had been nonselected for promotion
for the second time.  Even a request for reversion on the earliest date he
mentioned, 18 June 1999, was after he had been twice nonselected for
promotion.  Therefore, until recently the applicant did not meet the
regulatory eligibility criteria for reappointment as a 1LT in the Reserve
Components.

4.  It would not be equitable to grant the relief requested (in effect,
reinstatement retroactive to February 2001, promotion, and back pay and
allowances).  However, in accordance with the information provided in the
advisory opinion the applicant may request the state send NGB a request for
an exception to policy to allow his reappointment, which would be forwarded
to Headquarters, Department of the Army for consideration if all other
appointment requirements are met.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __lcb___  __cd____  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.




                                  __Mark D. Manning_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050001676                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051004                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.09                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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