RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2007
      DOCKET NUMBER:  AR20070000124


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 the difference in pay between Sergeant (SGT), E-
5 and Captain (CPT), O-3 from 1 January 2002 through 9 November 2006 (in
effect, that his enlisted status be voided).

2.  The applicant states that his commission in the Kansas Army National
Guard (KSARNG) was reinstated after he was notified that he had been
selected for promotion to CPT after he had been discharged as a two-time
nonselect and had enlisted in the KSARNG.

3.  The applicant provides appointment orders, dated 21 November 2006;
discharge orders, dated 20 November 2006; two promotion memoranda, both
dated 15 May 2006; and Federal Recognition orders, dated 27 November 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant was commissioned a Second Lieutenant in the ARNG in June
1988.  He was promoted to CPT effective 3 March 1994.

3.  By memorandum dated 26 July 2001, the applicant was notified that he
had been considered but not selected for promotion to Major (MAJ) for the
second time.  His removal date was established as 1 January 2002.

4.  Effective 1 January 2002, the applicant was discharged from the ARNG
and transferred to the U. S. Army Reserve.  Effective 2 January 2002, he
enlisted in the ARNG in the rank and grade of SGT, E-5.

5.  The applicant served on active duty in an enlisted status from 21
October 2004 through 29 December 2005.

6.  By memorandum dated 15 May 2006, the U. S. Army Human Resources
Command, St. Louis (USAHRC – STL) informed the applicant that he was
considered for promotion to MAJ by a Standby Advisory Board which convened
on 4 November 2005 and was selected for promotion with a promotion
eligibility date of 29 March 2001.  He was informed that if he had become
an enlisted Soldier as a result of his [original] nonselects, he could have
that status voided and return as a Reserve officer.

7.  Effective 9 November 2006, the applicant was discharged from the ARNG
and as a Reserve of the Army.  Effective 10 November 2006, he was appointed
as a CPT in the ARNG.

8.  In the processing of this case, an advisory opinion was obtained from
the National Guard Bureau.  The National Guard Bureau recommended approval
of the applicant’s request.  A copy of the advisory opinion was provided to
the applicant for comment.  On 9 July 2007, he concurred with the advisory
opinion.

9.  Section 14505 of Title 10, U. S. Code provides that an Army captain who
has failed to be selected for promotion to the next higher grade for the
second time and who has not been selected for continuation on the reserve
active-status list shall be separated 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 applicant was discharged from the ARNG effective 1 January 2002 as
a result of being twice nonselected for promotion to MAJ.  Effective 2
January 2002, he enlisted in the ARNG in the rank and grade of SGT, E-5.

2.  By memorandum dated 15 May 2006, USAHRC - STL informed the applicant
that he was selected for promotion to MAJ, with a promotion eligibility
date of    29 March 2001, by a Standby Advisory Board.  He was informed
that if he had become an enlisted Soldier as a result of his [original]
nonselects, he could have that status voided and return as a Reserve
officer.

3.  Effective 9 November 2006, the applicant was discharged from the ARNG
and as a Reserve of the Army and, effective 10 November 2006, he was
appointed as a CPT in the ARNG.

4.  The applicant requested only the difference in pay between SGT, E-5 and
CPT, O-3 from 1 January 2002 through 9 November 2006; however, based upon
the guidance he was given by USAHRC – STL he is in effect requesting that
his enlisted status be voided.  Based upon that guidance, it would be
appropriate to void his enlistment and to show he served as a CPT, O-3
during the period         2 January 2002 (as he was still a CPT on 1
January 2002) through 9 November 2006 with all pay and allowances due as a
result of this correction.

BOARD VOTE:

__clg___  __rws___  __ksj___  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 the
State Army National Guard records and all Department of the Army records of
the individual concerned be corrected by:

     a.  showing that his discharge from the Army National Guard of 1
January 2002 is void and of no force or effect and that his 2 January 2002
enlistment in the Army National Guard is void and of no force or effect,
(i.e., that he served in the Army National Guard in the rank and grade of
Captain, O-3 during the time of his voided enlistment);

     b.  paying to him all back pay and allowances due as a result of the
above correction;

     c.  placing an adequate explanation in his official personnel files to
show that the gap in his Officer Evaluation Reports (OERs), from the dates
of his now-voided discharge to the date of his 9 November 2006 appointment
in the Army National Guard, was not caused by any fault on his part and to
ensure that he is not prejudiced thereby in the consideration of any future
personnel actions; and

     d.  expunging all documents related to his now-voided non-selects for
promotion to Major and his now-voided discharge/enlistment from his
official military records.




                                  __Curtis L. Greenway__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000124                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070802                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |102.09                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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