IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080001141 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be returned to active duty as a commissioned officer due to promotion and that his current enlistment contract be voided.  

2.  The applicant states, in effect, that he should be promoted from first lieutenant (1LT/O-2) to captain (CPT/O-3).  

3.  The applicant provides several documents from his OMPF (Official Military Personnel File) such as:  Promotion Consideration Letters; two copies of orders, DD Form 2808 (Report of Medical Examination); and additional documents, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was appointed in the Puerto Rico Army National Guard (PRARNG) as a second lieutenant, effective 13 March 1991, with prior Reserve service.  

2.  The applicant was promoted to 1LT/O-2 effective 30 May 1993. 

3.  The applicant provided a copy of his OER (Officer Evaluation Report) for the period 28 June 1996 through 27 June 1997, an annual report.

4.  On 10 August 1997, the applicant tendered his resignation from the PRARNG and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement), in the rank of 1LT.

5.  The applicant was considered and not selected for promotion to captain by the 1997 Army Reserve Components Selection Board (RCSB).  

6.  The applicant was considered and not selected for promotion to captain by the 2001 RCSB.  He was advised that as a result of his second nonselection, he was required to be discharged.

7.  On 18 April 2002, Orders D-04-216961 were published by the US Army Reserve Personnel Command (PERSCOM)-St. Louis, discharging the applicant from the USAR Control Group (Reinforcement), with an effective date of 1 October 2002, in the rank of 1LT.  

8.  In a memorandum, dated 12 June 2002, the applicant was informed that he was selected for promotion to CPT by the August 2001, DA Special Selection Board (SSB), which convened on 7 August 2001, under the 1998 year criteria as an omission from consideration by the 1998 RCSB.

9.  On 2 October 2002, the orders discharging the applicant were revoked and he was returned to a Reserve status.  

10.  On 31 December 2002, the applicant received an outdated physical examination letter with a suspense date of 30 January 2003.  He was informed that his physical was outdated.

11.  Through email, the Commander, Army Human Resources Command (AHRC)-St. Louis, indicated that on 5 February 2003, the applicant was scheduled for a physical examination through the Federal Strategic Health Alliance (FEDS HEAL) process. 

12.  On 14 April 2003, the applicant and the FEDS-HEAL facility were unable to come to an agreement on a treatment facility, so the voucher for a physical examination was cancelled at his request.  AHRC-St. Louis never issued the promotion orders to CPT based on the fact that he failed to complete a physical examination. 

13.  On 21 June 2003, the applicant completed his physical examination.


14.  On 21 January 2004, the applicant resigned his commission prior to adding the physical to his official file.

15.  The applicant enlisted in the Regular Army on 22 January 2004, for 4 years, in pay grade E-4.  He was promoted to sergeant (SGT/E-5) effective 1 March 2007. 

16.  In an advisory opinion, rendered on 28 February 2008, the Chief, Special Actions Branch, DA (Department of the Army) Promotions, AHRC-St. Louis, reiterated the sequence of events previously discussed.  He stated that in accordance with Army Regulation 135-155, Chapter 4, to be eligible for a Reserve promotion, an officer must be serving on the Reserve Active Status List (RASL) and meet all promotion requirements.  Since the applicant resigned his commission and was not on the RASL he is not eligible for the promotion.  AHRC recommended that the applicant's request be disapproved.

17.  The applicant was provided a copy of the advisory opinion for possible comment prior to consideration of this case.  The applicant was provided 20 days to submit comments; however, the applicant did not respond. 

18.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 4-11 states that in order to be eligible for a Reserve promotion an officer must be serving on the RASL and meet all promotion requirements such as being medically qualified for promotion to the next higher grade.  Paragraph 4-12 states that each Ready Reserve officer is required to undergo a medical examination at least once every 5 years

DISCUSSION AND CONCLUSIONS:

1.  The applicant was nonselected for promotion to captain by the 1997 and 1998 RCSB and as a result of his second nonselection he was required to be discharged.  Orders were published on 18 April 2002 discharging the applicant from the USAR with an effective date of 1 October 2002.

2.  The applicant was informed on 12 June 2002, that he was recommended for promotion by an SSB under the 1998 year criteria and orders for discharge were revoked and he was retuned to a Reserve status.

3.  AHRC informed the applicant by memorandum on 31 December 2002 that he did not meet all promotions requirements at the time of his selection by the SSB and he was not promoted.  It was determined that the applicant's physical examination was outdated and that he had a suspense date of 30 January 2003 to complete his examination.  
4.  The applicant was scheduled for a physical examination which was not completed on time.  AHRC never published orders promoting the applicant to CPT based on the fact that he failed to complete the required physical examination.  He later completed his physical examination on 21 June 2003, well after the suspense date of 30 January 2003.

5.  The applicant resigned his commission on 21 January 2004 and he enlisted in the Regular Army on 22 January 2004 where he is currently serving.  He now requests, in effect, to be returned to active duty as a commissioned officer due to his selection for promotion to CPT and that his current enlistment be voided.  According to regulatory authority, he must be serving on an RASL and meet all promotion requirements.  The evidence clearly shows that he was not serving on the RASL and failed to meet all requirements for promotion.  Therefore, he is not entitled to the relief requested nor is he entitled to promotion to captain.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant and counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.






































































ABCMR Record of Proceedings (cont)                                         AR20080001141



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ABCMR Record of Proceedings (cont)                                         AR20080001141



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