RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 May 2008
	DOCKET NUMBER:  AR20080002321 


	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:




Chairperson



Member



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 reconsideration of his previous request for removal of the charge of "Improperly failed to request a waiver in connection with your application for appointment in the U.S. Army Reserve" from the list of charges in his administrative discharge board notification sheet dated 27 June 2003.

2.  The applicant states, in effect, that the Army Captain who recruited him into the Army should have known the requirements for appointment and that the US Army Recruiter did not offer him a copy of the appointment regulation nor did he inform him of the requirement for a waiver. 

3.  The applicant provides a JAG Corps Appointment Application Checklist, a copy of his Air Force DD Form 214 (Certificate of Release or Discharge from Active Duty), and a continuation sheet for his Air Force DD Form 214 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050014702 on 13 July 2006.

2.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Although, the applicant did not apply within one year of the original Board decision, it would appropriate in this case to consider his request based on the fact that at the time the applicant applied for reconsideration he was serving on active duty with the U.S. Air Force.

3.  The applicant provided a JAG Corps Appointment Application Checklist which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

4.  The JAG Corps Appointment Application Checklist provided by the applicant does not contain an official military form number nor does it contain an authentication section to validate the entries on the form.

5.  Requests for applicable waivers for appointment are not listed on the JAG Corps Appointment Application Checklist.

6.  As indicated in the previous case, on 31 July 1990, the applicant completed a DA Form 61 (Application for Appointment), applying for appointment as a U. S. Army Reserve (USAR) commissioned officer in the Judge Advocate General's Corps (JAGC).  On this application, the applicant indicated he had prior active enlisted service in the U. S. Navy and prior active commissioned service in the 
U.S. Navy.  He did not indicate that he had any prior U.S. Naval Reserve service.

7.  Although, the applicant's records indicate that he requested an age waiver at the time of his application for appointment, he did not request a waiver for twice failing selection for promotion while in the US Naval Reserve.  Evidence of record shows that the applicant knew prior to his request for appointment in the US Army Reserve that he was twice non selected for promotion to the rank of Lieutenant Commander while in the US Naval Reserve during the period 1979 to 1982.

8.  On 1 September 1990, the applicant requested an age waiver in connection with his request for USAR appointment.  He indicated that he understood that, as a result of his age, he might not be able to qualify for retirement.

9.  Also, noted in previous cases, is the fact that the applicant requested an age waiver for appointment purposes but there is no indication that the waiver was ever approved by appropriate military authorities.

10.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 1-7 provides categories of persons who are not eligible for appointment unless a waiver is authorized under paragraph 1-8;  paragraph 1-7c(4) lists commissioned officers twice passed over for promotion or otherwise released from active duty or active status due to failure to be promoted to a higher commissioned grade; paragraph 1-7n lists applicants for appointment as commissioned officers who are unable to complete 20 years creditable service for retirement (i.e., due to age).

11.  Army Regulation 135-100, paragraph 1-8b states waiver of disqualifications other than those authorized in this paragraph will be granted only by the Secretary of the Army.  Waiver requests will be based on recommendation of the Chief, Army Reserve through the Deputy Chief of Staff for Personnel.  The waiver must be fully justified as being in the best interest of the Army.  The 
waiver request must also clearly state, with supporting documentation, that the experience or professional qualifications of the member uniquely suit the position to which he or she is to be appointed.

12.  Army Regulation 135-100, paragraph 2-3 states the commander initially receiving the application or the commander having custody of the applicant's personnel records (for personnel on active duty with the Army) will review the application for completeness and determine the applicant's administrative eligibility to apply for appointment.  The intermediate commander will review the application and allied papers and endorse it to the area commander, or return the application when the applicant does not meet the basic administrative prerequisites.  Area commanders will review commissioned officer applications for correctness and determine eligibility of each applicant.  Applications for JAGC commissioned officers will be referred to The Judge Advocate General's School.  Eligible applicants will be referred to the president of an examining board for action.  Former commissioned officers are not required to appear before an examining board.

13.  Army Regulation 135-100, paragraph 2-8e states original documents will be returned to the applicant when no longer needed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the charge of "Improperly failed to request a waiver in connection with your application for appointment in the U.S. Army Reserve" should be removed from the list of charges in his administrative discharge board notification sheet dated 27 June 2003 was carefully considered and determined to be without merit.

2.  The JAG Corps Appointment Application Checklist provided by the applicant is not an authorized military form nor does it contain appropriate validation/
authentication fields.  The absence of a section pertaining to waivers does not mitigate the fact that pertinent regulations required that a waiver be requested by an officer failing selection for promotion twice and approved by appropriate military authorities prior to appointment.

3.  Evidence clearly shows as indicated in the previous case, the applicant was aware of his twice non selection for promotion.  Additionally, the applicant's failure to list his US Naval Reserve service on the DA Form 61 (Application for Appointment) makes it appear he was attempting to conceal that service, his termination for being twice nonselected for promotion, and the need for a waiver.

4.  Absent evidence to show that the applicant appropriately requested a waiver of the twice nonselection and such waiver was approved by the appropriate approval authority, there is no basis to grant the relief requested.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050014702, dated 13 July 2006.




      ___________X___________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002321



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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