RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 July 2008
	DOCKET NUMBER:  AR20070017051 


	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.  




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 promotion to major (MAJ)/O-4 in the U.S. Army Reserve (USAR), effective 20 May 2007, based on his earlier selection for promotion to that grade prior to his separation from the Regular Army on 30 April 2007.

2.  The applicant states that while serving in the Regular Army, he was selected for promotion to MAJ/O-4 by the Fiscal Year 2007 (FY07) Major Judge Advocate General Corps (JAGC) Promotion Selection Board and was tentatively scheduled to be promoted on 20 May 2007.  However, prior to being promoted, he submitted his unqualified resignation and was accordingly discharged on 30 April 2007.  He further adds that prior to his discharge he was issued orders to a USAR unit of assignment on 25 April 2007; and, after his discharge he executed an Oath of Office on 1 May 2007.  He concludes that he did not have a break in service between his active duty separation date and USAR appointment and therefore his active duty promotion selection should be honored by the USAR.

3.  The applicant provides the following additional documentary evidence in support of his application: 

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 April 2007.

      b.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, Orders 067-0009, dated 8 March 2007 (Separation Orders) and Orders 115-0030, dated 25 April 2007 (Amendment of Separation Orders).

	c.  DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 24 April 2007.

	d.  DA Form 71 (Oath of Office-Military Personnel), dated 1 May 2007. 

      e.  FY07 JAGC MAJ/O-4 Promotion Plan for March, April, May, and June 2007. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was appointed as a USAR commissioned officer in the Judge Advocate General Corps as a 1st lieutenant (1LT)/O-2 on 7 July 1998.  

2.  On 28 October 1999, he was ordered to active duty to fulfill active duty requirements as an obligated volunteer officer for 3 years.  He was assigned to the Office of the Staff Judge Advocate (OSJA), Fort Hood, Texas, and executed an oath of office on 22 November 1999.  

3.  The applicant's records further show that he entered active duty on 7 January 2000, completed the Judge Advocate Officer Basic Course on 7 April 2000, and was subsequently promoted to captain (CPT)/O-3 on 15 September 2000.  

4.  On 7 October 2004, by memorandum, the Office of The Judge Advocate General, Rosslyn, Virginia, notified the applicant that he was selected for retention on active duty in a Conditional Voluntary Indefinite (CVI) status that would expire on 31 December 2006.  The memorandum also advised the applicant that he could still be released from active duty for non-selection for promotion, forced reduction, failure to meet acceptable standards, expiration of CVI status, maximum age, or non-selection for Voluntary Indefinite status.

5.  On 11 November 2005, Human Resources Command (HRC) - Alexandria, Virginia, published Order 60-5-A-83, appointing the applicant in the Regular Army.  The Order also stated that he was not required to execute a new Oath of Office based on this appointment and that his Reserve appointment as a commissioned officer was vacated.  

6.  On 17 October 2006, the FY07 Major JAGC Promotion Selection Board convened to consider eligible captains for promotion to MAJ/O-4.  The promotion list was released on 30 January 2007.  The applicant’s records show that he was selected for promotion.

7.  On 1 March 2007, the U.S. Senate confirmed the FY07 Major JAGC Promotion Selection List and on 5 March 2007, the Personnel, Plans, and Training Officer, Human Resources Command, Alexandria, Virginia, posted a
by- name listing of the FY07 JAGC Major Promotion Plan on its website.  The applicant was tentatively projected for promotion on 20 May 2007 according to the Promotion Plan. 

8.  The facts and circumstances surrounding the applicant's separation from the Regular Army are not available for review with this case.  However, on 8 March 2007, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, published Orders 067-0009, separating the applicant in accordance with paragraph 3-5 of Army Regulation 600-8-24 (Officer Transfers and Discharge).  His SPD code, FND, and paragraph 3-5 of this regulation, show that the applicant was released based on his voluntary resignation from active duty.
9.  On 24 April 2007, the applicant submitted a request for USAR assignment orders to the 208th Support Detachment, Patterson Air Force Base, Colorado. 

10.  On 25 April 2007, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, published Orders 115-0030, amending the applicant’s separation orders, dated 8 March 2007, to show that he had enlisted [sic] for and was hereby assigned to the 208th Support Detachment, Paterson Air Force Base, Colorado, with a reporting date of no later than (NLT) 30 May 2007. 

11.  On 30 April 2007, the applicant was honorably discharged from the Regular Army in the grade of CPT/O-3.  The DD Form 214 he was issued at the time shows he was discharged by reason of miscellaneous/general reasons, in accordance with paragraph 3-5 of Army Regulation 600-8-24.  It further shows that he completed 7 years, 3 months, and 24 days of creditable active service.

12.  On 1 May 2007, the applicant executed an oath of office for his appointment as a Reserve commissioned officer in the grade of CPT/O-3.

13.  On 30 July 2007, Human Resources Command (HRC) - St. Louis, Missouri, published Orders C-07-723855, assigning the applicant to the USAR Control Group (Reinforcement), effective 30 May 2007, in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers). 

14.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Chapter 3 of this regulation prescribes the tasks, rules, and steps for processing voluntary resignations.  Paragraph 3-5 states, in pertinent part, that any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.  Normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the service obligation.  An officer must serve in the Armed Forces until completion of statutory military service obligation (MSO).  An officer has an 8-year MSO.  To waive an officer’s MSO, the Assistant Secretary of the Army (Manpower and Reserve Affairs) [ASA (M&RA)] must find that the officer has no potential for service under conditions of full mobilization.  An officer who requests resignation before completing the 8-year MSO must agree to accept an indefinite appointment in the USAR to complete such service 
obligation.  The act of taking the Reserve officer’s oath by an Active Army (AA) officer is sufficient to simultaneously terminate the officer’s Regular Army (RA) 
status by operation of law.  An officer who submits an unqualified resignation accepted by Human Resources Command (HRC)-Alexandria, Virginia, will receive an Honorable discharge or a General discharge under honorable conditions.

15.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of Regular Army officers.  This regulation specifies that to be considered for promotion by a selection board, an officer must be on the Active Duty List (ADL) on the day the board convenes.  The regulation also specifies that an active duty officer, who is removed from the ADL and placed in an active Reserve status, will be considered for promotion by a Reserve promotion board.

16.  Army Regulation 135-155 (Promotions of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.  It states in pertinent part that upon release from active duty, officers with Reserve appointments are transferred in the grade satisfactorily held while on the ADL and, if accepted, may transfer to an ARNG unit or USAR Troop Program Unit (TPU); otherwise, they are transferred to the USAR Individual Ready Reserve (IRR).  The officer also retains his or her time in grade.  Officers on the ADL selected for promotion, removed from the ADL before being promoted, and transferred to the Reserve Active Status List (RASL) in the same competitive category, shall be placed on an appropriate promotion list for Reserve of the Army promotion without the need for further consideration.  Regular Army officers who leave active service must apply and be accepted for a first-time Reserve appointment to enter Reserve duty.

17.  Army Regulation 135-155 also states, in pertinent part, that an active duty officer, who is selected for promotion but removed from the ADL and placed in an active Reserve status prior to promotion, is not eligible for that promotion and that officer will be placed on the RASL and considered for promotion by a Reserve promotion board.  An officer serving in the IRR selected for the first time for promotion to the next higher grade may be promoted on the date that he/she completes the maximum time in grade (MTIG).

DISCUSSION AND CONCLUSIONS:

1.  The applicants contends that he should be promoted to MAJ/O-4 in the USAR based on his selection for promotion to MAJ/O-4 by the 2007 ADL promotion board.

2.  The evidence of record shows that the applicant was appointed as a Regular Army commissioned officer on 11 November 2005 and that based on this appointment, his initial Reserve appointment as a commissioned officer was vacated.  He was subsequently selected for promotion to MAJ/O-4 by the 2007 ADL.  

3.  Prior to being promoted, he resigned his Regular Army commission and was separated from active duty.  Upon resignation of his Regular Army commission on 30 April 2007, he was removed from the MAJ/O-4 ADL.

4.  Upon his separation from the Regular Army, he accepted an appointment as a Reserve commissioned officer and was transferred to the USAR.  There is no evidence that he was considered or selected for promotion to MAJ/O-4 by a Reserve Component Selection Board (RCSB) until after he accepted an appointment as a Reserve commissioned officer. 

5.  Therefore, the applicant is not entitled to relief because he resigned his Regular Army commission and effectively was removed from the MAJ/O-4 ADL. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017051



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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