RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:   13 December 2005
      DOCKET NUMBER:  AR20050003189


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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, removal of his second non-selection
for promotion to captain.

2.  The applicant states that his record should properly indicate that he
was a "one-time non-select" for promotion from first lieutenant to captain
in 1990, not a "two-time non-select" in 1990 and 1991.  In the fall of
1990, he was non-selected for promotion from first lieutenant to captain.
In the fall of 1991, 2 to 3 months before the next promotion board, he
decided to leave the Reserve and resign his commission.  In October 1991,
he further declined to send in some items that were needed for his
promotion packet (current photograph).  Additionally, he mailed a letter to
the Army Reserve Personnel Center with his resignation well before the
start date of the 1991 board in December.  During the fall of 1991, he was
a "non-obligated" officer according to the definition in Army Regulation
135-175.  He was eligible to resign, and no provisions in the regulation
would have prevented his resignation from being accepted.  He further
states that his letter of resignation from late 1991 is in his official
file at St. Louis.

3.  He received a letter from the Human Resources Command (HRC), stating
that his records indicated he was two-time non-select for promotion, and
therefore, ineligible for consideration as an officer accession candidate.
He believes that this conclusion was incorrect.  Upon further review, his
record should indicate that he was simply a one-time non-select.  Since he
desires to return to serve as an officer, the issue is important for him.
He was just advised that the United States Army Reserve (USAR) was now
willing to consider officer applications from those who were two-time non-
selected for promotion in the past.  Now that there seems to be a need for
officers for the Global War on Terrorism, he is ready and very willing to
serve again, if he is eligible.

4.  The applicant provides copies of a response from the Chief,
Appointments, HRC, and a memorandum from the Chief, Personnel Policy and
Readiness Division, Departments of the Army and the Air Force, Army
National Guard.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 December 1991, the date of his separation from the USAR.
The application submitted in this case is dated 28 February and was
received on 4 March 2005.

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's military records show he was appointed in the USAR as a
second lieutenant effective 21 May 1983.

4.  He was promoted to first lieutenant effective 24 May 1986.

5.  He was considered and not selected for promotion to captain by the 1990
Fiscal Year and 1991 Fiscal Year Reserve Components Selection Boards (RCSB)
which convened on 28 November and recessed on 2 December 1990 and convened
on 2 December and recessed on 20 December 1991, respectively. The boards
did not divulge the reason for his non-selections.

6.  His records contain his original letter of resignation, dated 23
November 1991, in which he stated that he would like to resign his
commission as a lieutenant in the Army Reserve, effective 1 December 1991.

7.  He was separated from the USAR as first lieutenant, effective 31
December 1991, under the provisions of Army Regulation 135-175, based on
his non-selections for promotion.

8.  On 5 August 2004, the Chief, Personnel Policy and Readiness Division,
Departments of the Army and the Air Force, Army National Guard, advised the
Adjutant General of Indiana that the request for an exception to policy to
the maximum age limit for reappointment submitted on behalf of the
applicant was approved provided the applicant, serving as a specialist in
the Indiana Army National Guard, was otherwise qualified for appointment.
The applicant should also be advised that he would be considered by a RCSB
for promotion to the next higher grade at the first scheduled board, after
he completes one year of continuous service on the Reserve Active Status
List (RASL).

9.  On 20 January 2005, the Chief, Appointments, HRC, advised the applicant
that his application for reappointment as an officer in the USAR was
returned without action.  After contacting the HRC Promotions Office, it
was determined



that the applicant was passed over for promotion to captain in November
1990 and passed over a second time in December 1991.  Under the provisions
of Army Regulation 135-100 and Title 10, United States Code, section 3368,
an individual who has been twice non-selected for USAR promotion cannot be
reappointed.

11.  He was appointed in the USAR as a first lieutenant effective 7
November 2005, with a two-time passover and age waivers.

12.  Army Regulation 135-155, in effect at the time, prescribes the
policies and procedures for the promotion of Reserve officers.  This
regulation specifies promotion from first lieutenant to captain required
completion of 4 years time in grade and 6 years time in service.  Any
person, who twice fails to be selected for promotion to the grade of
captain, will not be considered again for promotion.  All officers not
qualified for retention will be removed from an active status within 90
days after the selection board submits its results to Headquarters,
Department of the Army (HQDA).  HQDA may remove a name from a not-
recommended list if the officer was not eligible for consideration because
he/she was not in an active status or was in an active status in error at
the time of consideration.  Promotion policy does not provide for the
removal of non-selections by an RCSB except when directed by this Board.

13.  Army Regulation 135-175, in pertinent part, prescribes the policies
and procedures for the discharge of Reserve officers.  This regulation
specifies that an officer in the grade of first lieutenant, who has
completed his/her statutory military service obligation, will be discharged
for failure to be selected for promotion after a second consideration by a
RCSB, with or without the officer's consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant submitted a request for resignation, dated 23 November
1991, to the Army Reserve Personnel Center (ARPERCEN).  The evidence of
record indicated receipt of the request at ARPERCEN and its filing in the
applicant's official military personnel file.  A review of the action
indicates that no case was established forwarding the action to appropriate
personnel nor was there any paper trail indicating that the action was ever
sent to the appropriate personnel for action.  The failure to process the
action appears to be procedural error by the then ARPERCEN personnel.  If
the applicant’s resignation had been processed in a timely manner, he would
have been discharged prior to the convening date of the 1991 Fiscal Year
RCSB and would not have been discharged as a two time passover.
2.  Due to this administrative error, the applicant’s request for
resignation was not processed in accordance with established procedures and
he should not have been discharged as a two-time passover.

3.  The applicant is entitled to correction of his records to show that his
request for resignation was approved and he was discharged effective 1
December 1991, due to resignation from his commissioned status.  His non-
selection should be deleted from the results of the 1991 Fiscal Year
Captain's RCSB.

4.  Based on the applicant's appointment in the USAR as a first lieutenant,
he is now eligible for appropriate promotion consideration by a RSCB for
promotion to the next higher grade at the first scheduled board upon
completion of one year continuous service on the RASL.

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

BOARD VOTE:

_ALR____  _MM___  _SLP____  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 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:

      a.  by voiding the non-selection of the individual concerned from the
1991 Fiscal Year Captain's Reserve Components Selection Board;


      b.  by expunging all documents related to his now-voided 1991 Fiscal
Year Reserve Components Selection Board non-selection for promotion from
his official military records;


      c.  by voiding the discharge of the individual concerned effective
31 December 1991, based on his two-time non-selection for promotion;

      d.  by showing he was discharged effective 1 December 1991, due to
resignation from his commissioned status; and


      e.  by submitting his record for appropriate promotion consideration
to the next higher grade upon his completion of one year continuous service
on the Reserve Active Status List.




                                  _____Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003189                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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