RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      30 November 2006
      DOCKET NUMBER:  AR20060009121


      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:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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, promotion to major in the Reserve
with an effective date of 7 March 1992, adjustment to total years of
commissioned service by subtracting any commissioned service currently
credited between 7 March 1992 and the date of adjudication, and that he be
returned to active duty.

2.  The applicant states, in effect, that he was selected for promotion on
6 May 1991 and was not promoted based on this selection.  He also states
that on 6 May 1991, he was not on the active duty list (ADL).  On 1 July
1991, after being selected for promotion to major, he was selected for
Voluntary Indefinite (VI) Extension on Active Duty.  This selection would
have placed him on the ADL.  His selection for promotion was due to
mandatory consideration based on Title 10, United States Code, section
3366.  He should have been placed on an appropriate promotion list for
officers on the ADL and promoted.  He also states that he was not notified
that he had been selected for promotion.  He did not become aware of his
selection until he reviewed his records on the Human Resources Command
(HRC) website.  He was mobilized effective 24 June 2004 in support of
Operation Enduring Freedom.

3.  The applicant provides copies of his 1988 active duty orders, his
promotion memorandum for captain, his promotion eligibility memorandum, his
VI Extension of Active Duty memorandum, his Letter of Acknowledgement –
Final VI Extension of Active Duty memorandum, his officer evaluation
reports for the year 1983 through 1992, his DA Forms 1059 (Service School
Academic Evaluation Report), his Army National Guard (ARNG) separation
orders, his 2006 active duty orders, his officer record brief, and a
chronology of events, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the United States
Army Reserve (USAR) and entered on active duty effective 10 May 1976.  He
was separated from active duty effective 14 April 1977 and transferred to
the USAR.  He was discharged from the USAR effective 14 September 1977.

2.  The applicant was appointed in the USAR, as a second lieutenant,
effective 21 February 1980.  He was promoted to first lieutenant effective
20 February 1983.

3.  The applicant was appointed in the Kansas ARNG (KSARNG), as a first
lieutenant, effective 13 July 1983.  He was promoted to captain effective
8 March 1985.

4.  The applicant was separated from the KSARNG effective 15 September 1985
and transferred to the District of Columbia ARNG (DCARNG)

5.  The applicant entered on active duty effective 18 January 1987 and was
released effective 29 September 1988.

6.  The applicant was ordered to active duty as an obligated volunteer
officer effective 17 October 1988, for 2 years.

7.  An Eligibility for Promotion as a Reserve Commissioned Officer Not on
Active Duty memorandum, dated 6 May 1991, was issued to the National Guard
Personnel Center.  The memorandum advised the National Guard Bureau (NGB)
that the applicant had been selected for promotion to major by a Reserve
Components Selection Board (RCSB) which adjourned on 29 March 1991.  The
memorandum also advised that the effective date of the promotion would be
the later of the following dates:  a. 7 March 1992 (PED), or b. the date
Federal recognition was extended in the higher grade, or c. the date
following the date Federal recognition was terminated in the current
Reserve grade.

8.  In a memorandum, dated 1 July 1991, the Chief, Professional Services
Branch, Combat Support Arms Division, Total Army Personnel Command,
Alexandria, Virginia, advised the applicant that he had been accepted for
VI status which commenced on 17 October 1990.  The memorandum was his
official notification that he was to be retained on active duty in a VI
status unless sooner separated, released, or retired from active duty.

9.  On 8 July 1991, the applicant acknowledged receipt of the notification
that he was selected for extension on active duty in a final VI status
which began on 17 October 1990.

10.  The Human Resources Command (HRC), Officer Promotions Branch,
Alexandria, Virginia, verified that the applicant was considered and not
selected for promotion to major by the Fiscal Year (FY) 1991 ADL Promotion
Board that convened 29 October 1991.  That office was unable to verify that
he received consideration by the 1992 FY ADL Promotion Board.

11.  The applicant was released from active duty in lieu of unqualified
resignation, in the grade of captain, effective 30 September 1992.  He
received a Voluntary Separation Incentive (VSI) payment of $15,845.13.  He
was transferred to the Individual Ready Reserve (IRR).  He was credited
with 3 years, 11 months, and 14 days net active service this period.

12.  The applicant again entered on active duty, as a captain, effective
13 October 1992.  He was released from active duty at the expiration of his
term of service effective 26 February 1993 and transferred to the IRR.

13.  The applicant was considered and not selected for promotion to major
by the 1996 RCSB that convened on 12 March and recessed on 5 April 1996.

14.  The applicant was issued a Notification of Promotion Status
memorandum, dated 10 June 1996, advising him of his non-selection for
promotion to major by the 1996 RCSB.  The memorandum also advised him that
if he was selected by the next year's board, his promotion would be one
year later than it would have been had he been selected by the first board.
 If he was not selected by the next board he would be subject to removal
from an active status in accordance with current regulations in effect at
the time.

15.  The applicant's records show he enlisted in the Kentucky ARNG
(KYARNG), in pay grade E-5, effective 29 November 1996, for 3 years.

16.  The applicant was considered and not selected for promotion to major
by the 1997 RCSB that convened on 11 March and recessed 11 April 1997.

17.  The applicant was separated from the DCARNG, as a captain, effective
7 April 1997.

18.  The applicant was issued a Notification of Promotion Status
memorandum, dated 6 June 1997, advising him of his second non-selection for
promotion to major by a 1997 RCSB.  The memorandum also advised him that as
a result of his second non-selection, he must be discharged unless he was
eligible for and requested transfer to the Retired Reserve.

19.  The applicant transferred from the KYARNG to the Wisconsin (WI) ARNG
on 1 November 1997.  The applicant extended his enlistment in the WIANRG,
in pay grade E-5, effective 7 November 1999, for 4 years.  He was separated
from the WIARNG, in pay grade E-5, effective 30 September 2003.

20.  The applicant enlisted in the USAR, in pay grade E-5, effective 1
October 2003.

21.  The applicant was reappointed in the USAR, as a captain, effective 7
April 2006.  He was ordered to active duty, effective 26 June 2006, in
support of Operation Enduring Freedom.

22.  In an advisory opinion, dated 10 August 2006, the Chief, Special
Actions Branch, Office of Promotions, Reserve Components, HRC, St. Louis,
Missouri, stated that the applicant was erroneously considered and selected
by the 1991 Major RCSB with a PED of 7 March 1992.  The 1991 board convened
on 5 March 1991.  It appears that the applicant did not belong to the USAR
at that time.  There was a DD Form 214 created that stated the applicant
was on extended active duty and assigned to the IRR on 30 September 1992.
Additionally, even if the applicant had correctly been considered by the
1991 board, he still would not be eligible for promotion now because he
vacated his commission when he enlisted in the KYANRG on 29 November 1996.
Attached is an electronic mail (email) trail between the Chief, HRC, Office
of Promotions, Reserve Components, and the applicant's career manager
reference this issue.  The applicant would be removed from the 1991 major
position list and his letter of eligibility would be voided.

23.  In email correspondence, dated 28 July 2006, the Chief, Office of
Promotions, HRC, St. Louis, advised the applicant's career manager that the
applicant was promoted to captain on 8 March 1985 and he was selected for
promotion to major by the 1991 Major RCSB while assigned to the ARNG.  For
whatever reason the ARNG did not promote him to major on his PED of 7 March
1992.  If he transferred to the IRR, the Office of Promotions was unaware
of the transfer as they were not contacted to finalize the promotion.
After the 1991 promotion selection, there was no need to again consider him
for promotion as he was still on a promotion list.  He understood that a
request had been made to have his 1996 non-select memorandum removed from
his file.

24.  The 28 July 2006 email correspondence also stated that on 26 November
1996, the applicant vacated his commission when he enlisted.  Although,
there was some reference to the applicant being a captain after 29 November
1999, he was not on the RASL.  On 11 April 2006, the applicant was
recommissioned as a captain.  An officer must be on the RASL for one year
before they can be considered for promotion.  The major RCSB boards are
normally held in March.  The 2008 Major RCSB would be the first board that
the applicant would be eligible.  With a date of rank of 8 March 1985,
adjusted by the 11 years, 8 months, and 21 days he served as a captain
before his enlistment, his adjusted date of rank is 20 July 1994.  Based on
the requirement for seven years time in grade his PED is 19 July 2001.  If
the applicant is recommended for promotion by the 2008 Major RCSB, the
earliest date of rank he can get would be the approval date of the board.
25.  In email correspondence, dated 3 August 2006, the Chief, Office of
Promotions, advised the applicant's career manager that he did not see that
any further action was necessary.  The applicant vacated his Reserve
commission before the promotion was finalized.  A promotion from the 1991
RCSB was not pending.

26.  The advisory opinion was forwarded to the applicant for his
acknowledgment and or rebuttal on 23 August 2006.  In his rebuttal dated,
20 October 2006, the applicant stated, in effect, that he believes he was
correctly considered and selected by the 1991 major RCSB.  At the time of
his selection for promotion to major on 5 March 1991, he was an ARNG
officer.  He was on active duty from 17 October 1988 through 30 September
1992.  From 17 October 1988 through 16 October 1990, he was placed on a
temporary two-year period of active duty as an ARNG officer with self-
terminating orders.  He was retained on active duty through Operation
Desert Shield/Desert Storm as a result of the Stop Loss Program.  As an
exception to policy, his application for VI status was approved.  This is
the point where he would have been integrated into the active Army.

27.  The applicant also stated that the fact he left active duty and
finally enlisted in the ARNG is directly attributed to the administrative
error in (1) not notifying him of his selection for promotion to major, and
(2) creating a situation where he was not considered for promotion during
the period between 1991 and 1996 because he was already on an approved
promotion list.  He would not have left the active Army had he known he had
been selected for promotion to major.  He requests, in effect, that his
records be corrected as he previously requested.

28.  Army Regulation 600-8-29 prescribes the policies and procedures for
promotion of active duty officers.  This regulation states that to be
considered for promotion, an officer must be on the ADL on the date the
board convenes.  An officer must complete 3 years time in grade to be
promoted to captain and major. Commissioned officers are promoted from
promotion lists in order of seniority (shown by the promotion sequence
number) as additional officers are needed within each competitive category.
 Promotions would be announced in Headquarters, Total Army Personnel
Command (PERSCOM) [now the HRC, Alexandria, Virginia] orders.

29.  Army Regulation 135-155, in effect at the time, prescribed the
policies and procedures for the promotion of Reserve and ARNG officers.
This regulation specified that a mandatory selection board would be
convened each year and considered Reserve and ARNG officer in an active
Reserve status for promotion to captain through lieutenant colonel.
Promotion from captain to major required completion of 12 years time in
service and 7 years time in grade.

30.  Army Regulation 135-155, in effect at time, further provided that
promotions would be made only on the recommendation of a promotion
selection board.  An officer removed from an active Reserve commissioned
status before promotion was finalized (effective date of promotion) would
be removed from the promotion list.  Removal would not be considered a non-
selection.  If returned to an active Reserve commissioned status, the
office's name would not be placed on a promotion list or nominated for
promotion unless again recommended by a selection board.  An officer’s name
may be removed from a non-recommended list if he or she was not in an
active Reserve status, or 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.

31.  Army Regulation 135-155, in effect at the time, also provided that an
ARNG or USAR officer who has been recommended for promotion to the next
higher grade must be in an active Reserve status and meet the service
requirements.  The regulation also provided that an officer who twice
failed selection for promotion to the grade of major must be removed from
an active status.

32.  The regulation further specified that promotion
consideration/reconsideration by a special selection board may only be
based on erroneous non-consideration or material error, which existed in
the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was selected for promotion to major in
the Reserve and never promoted.  However, the applicant was considered and
selected for promotion to major by the 1991 RCSB that convened on 5 March
1991.  It was determined that the applicant was erroneously considered by
that board since he was on extended active duty from 17 October 1988
through 30 September 1992, a period of over 3 years.  Therefore, he was not
eligible for consideration or a Reserve promotion to major at that time.

2.  The applicant was considered and not selected for promotion to major
while on active duty.  He was released from active duty on 30 September
1992 and transferred to the IRR.  His reappointment to a Reserve
commissioned officer on 7 April 2006 did not entitle him to automatic
promotion to major based on the 1991 RCSB selection.  He must again be
recommended by a selection board.

3.  The applicant again entered on active duty as a commissioned officer in
the grade of captain effective 13 October 1992.  He was separated from
active duty effective 26 February 1993 and transferred to the IRR.  It
appears that the Office of Promotions was not made aware of the applicant
serving in the IRR from 1993 through 1996.  He was considered for promotion
to major by the 1996 RCSB and not selected.  He continued to serve in the
rank of captain until his enlistment in the ARNG effective 29 November
1996.

4.  The applicant should have been considered for promotion to major by a
mandatory Reserve promotion board one year after the date of his transfer
to the IRR in 1994 and again in 1995.  Therefore, in the interest of
justice, it is concluded that the applicant is eligible for special
selection board consideration for promotion to major under the 1994 and
1995 year criteria.

5.  The applicant was considered and not selected for promotion to major by
the 1996 and 1997 RCSBs.  At the time of the 1996 RCSB in June 1996, the
applicant was still serving as a commissioned officer.  The applicant
vacated his commission on 29 November 1996 prior to the convening date of
the 1997 RCSB on 11 March 1997, when he enlisted in the KYARNG.  Since he
was not eligible for consideration for promotion to major by the 1997 RCSB,
his non-selection was invalid and should be deleted from his record.  It
appears that the Office of Promotions and the DCARNG were unaware of his
enlistment in the KYANRG on 29 November 1996.

6.  The applicant also requests that his total years of commissioned
service be adjusted by subtracting any commissioned service currently
credited between 7 March 1992 and the date of adjudication, and that he be
returned to active duty.  However, the Promotions Branch database shows
that his date of rank for captain of 8 March 1985 was adjusted by 11 years,
8 months, and 21 days, to 20 July 1994, based on the time he served as a
captain before his enlistment.

7.  The applicant was reappointed to a Reserve commissioned status on
7 April 2006.  However, his reappointment in the USAR did not guarantee him
a return to active duty.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__AM___  __DLL __  ___WFC_  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.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by deleting the 1997 non-selection and Notification
of Promotion Status memorandum, 6 June 1997, from his official military
personnel file.

2.  That following administrative implementation of the foregoing, the
applicant's records be submitted to duly constituted special selection
boards for promotion consideration to major under the 1994 and 1995 year
criteria.

3.  That, if selected, his records be further corrected by showing he was
promoted to major on his date of eligibility, as determined by appropriate
Departmental officials, using the 1994 or the 1995 year criteria, provided
he was otherwise qualified and met all other prerequisites for promotion.

4.  That if not selected, the applicant be so notified.

5.  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
the applicant's entitlement to a Reserve promotion to major with an
effective date of 7 March 1992, adjustment to his total years of
commissioned service, and his return to active duty.




                                  _____William F. Crain______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009121                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.05                                  |
|3.                      |131.10                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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