IN THE CASE OF:	

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080007875 


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:

	a.  promotion to major (MAJ) in accordance with the 2002 Department of the Army (DA) Reserve Component Selection Board (RCSB) memorandum, with an effective date of 16 July 2002.

	b.  eligibility for promotion to the next higher rank/grade as a Reserve officer of the Army.

	c.  retirement year credit from October 2003 to 2008, and, if eligible, transfer to the Retired Reserve.

	d.  reinstatement into the Individual Ready Reserve (IRR) until he has 20 or more qualifying years for retirement and can be transferred into the Retired Reserve.

	e.  a security clearance for government contract work as a service member  with disability (civilian).

	f.  physical disability evaluation and assignment of a percentage of disability with assignment appropriate to his disabilities. 

	g.  the initiation of a DA Form 368 (Request for Conditional Release), if needed, to accomplish the above objectives.

	h.  monetary compensation for the discrimination, pain, suffering, humiliation, embarrassment, service benefits and incentives, otherwise lost due to the irreparable harm to his military and civilian careers, schooling, and finances over a 6-year period.

2.  The applicant states that he was selected for promotion to MAJ by the 2002 Major RCSB, but was never assigned to a MAJ position.  He was then transferred to the IRR where he remained since 2003.  However, he was not credited with good years toward retirement.  He also adds that IRR muster was not available in the governing regulation until late 2006/early 2007.  He remained fully qualified during this time and kept abreast of Army needs in his career field.  He concludes that the ambiguity, frustrations, stress, and fatigue he experienced landed him in a hospital and in counseling, and that as a result, he suffered irreparable harm to his career, school, and finances.

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

	a.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri (MO), Orders D-01-803117, dated 14 January 2008.

	b.  Federal Express/Kinko’s Receipt, dated 28 December 2007.

	c.  Federal Express/Kinko’s Fax Cover Sheet, dated 28 December 2007.

	d.  HRC-St. Louis, MO, letter, dated 11 February 2006, Election of Options after Fulfilling the Mandatory Service Obligations (MSO).

	e.  AHRC Form 4145 (Election of Options-Military Service Obligation), dated 2 November 2006.

	f.  Office of the Adjutant General, Kansas Army National Guard (KSARNG), Topeka, Kansas, Orders 183-001, dated 14 October 2003, separation from the KSARNG.

	g.  National Guard Bureau (NGB) Special Orders 260 AR, Federal Recognition Transfer to the U.S. Army Reserve (USAR).

	h.  DA Form 200 (Transmittal record), dated 16 August 2002.

	i.  Memorandum, dated 16 August 2002, request for Delay of Promotion.

	j.  U.S. Army Personnel Command (now known as HRC), St. Louis, MO, Promotion Eligibility Letter, dated 16 July 2002.

	k.  Biographical Summary, dated 14 June 2003.

	l.  University of Kansas letter Professional Development and Continuation of Education Letter, dated 30 September 2002.

	m.  Unofficial Transcripts, dated 9 April 2008.

	n.  Three Wichita State University Letters, dated 17 May 2002, 2 April 2002, and 9 July 2001.

	o.  Secretary of Veterans Affairs August 2006 letter.

	p.  Medicare Health Insurance Card.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 22 July 1988.  He subsequently transferred to the KSARNG on 23 September 1988 and completed the Materiel Management Officer Basic Course on 1 December 1989. He was promoted to first lieutenant on 11 June 1991and to captain on 21 July 1995.  During this period of service, the applicant held a Secret security clearance, dated 25 January 1988. 

2.  On 16 July 2002, by memorandum, HRC-St. Louis, MO, notified the applicant of his selection for promotion to MAJ by the 2002 RCSB.  His promotion eligibility date was established as 20 July 2002 and his effective date of the promotion was either of the following:

	a.  20 July 2002, or

	b.  Date Federal recognition is extended in the higher grade; or

	c.  Date following the date Federal recognition is terminated in current Reserve grade.  

3.  On 16 August 2002, by memorandum addressed through his chain of command to the Adjutant General, KSARNG, the applicant requested a delay of promotion until 19 July 2005.  He acknowledged that he understood that by delaying his promotion, his name would remain on the promotion list for 3 years from the date he would have otherwise been promoted and that he could be promoted at any time during the approved period of the delay or he could be removed from the list for some other reason.  He further acknowledged that during the delay or at the end of the approved period of delay, he had three options, and if at the end of the approved period of delay, he did not select an option, he would be removed from the promotion list, considered non-select, and be ineligible for position vacancy.  The options were:

	a.  promotion to the higher grade if a higher grade position is made available to him, if otherwise eligible.

	b.  if there is no higher graded position and he desires to be promoted, his Federal recognition could be withdrawn and he would be transferred to the IRR and promoted.

	c.  if he declines promotion, his name would be removed from the list and would be considered to have been not selected for promotion, and if this was his first non-selection, he would appear before the next mandatory board for his category, and if this was his second non-selection, he would be separated.

4.  On 14 October 2003, Office of the Adjutant General, KSARNG, Topeka, Kansas, published Orders 183-001, honorably separating the applicant from the KSARNG, effective 10 October 2003, and transferring him to the U.S. Army Reserve (USAR) Control Group (IRR) in accordance with paragraph 5(a)(3)(a) of National Guard Regulation (NGR) 635-100 (Termination of Appointment and Withdrawal of Federal Recognition).

5.  On 2 November 2006, by letter, HRC-St. Louis, MO, notified the applicant that a recent change to the Department of Defense (DOD) Directive 1235.13, dated 16 July 2005, requires an officer who has fulfilled his military service obligation (MSO) to make an election to remain in the IRR.  The letter instructed the applicant to make an election, sign, date, and return the letter within 45 days.  The letter also warned the applicant that failure to respond would result in transfer to the Standby Reserve (Inactive Status List) and that after one year on the Inactive List, he would be transferred to the Retired Reserve (if eligible) or be discharged.  

6.  There is no indication that the applicant responded to the MSO Election of Options letter within 45 days as instructed. 

7.  On 27 December 2006, HRC-St. Louis, MO, published Orders C-12-642034, releasing the applicant from the USAR Control Group (Reinforcement) to the Standby Reserve (Inactive List), effective 27 December 2006.  The Orders remarked that the applicant had no security clearance and instructed that he would be discharged or transferred to the Retired Reserve (if eligible) within one year of the effective date of this order unless he provided the MSO election form requesting to remain in the IRR.

8.  On 28 December 2007, the applicant made an election to remain a member of the IRR.  It appears that he faxed his election to HRC-St. Louis, MO, on 28 December 2007. 

9.  On 14 January 2008, HRC-St. Louis, MO, published Orders D-01-803117, honorably discharging the applicant from the Standby Reserve (Inactive List) for failure to timely provide an MSO Election Form as required by the DOD Directive 1235.13.  His Retirement Point statement shows that as of his date of separation, he had 14 years and 7 months of qualifying service for retired pay purposes.

10.  An advisory opinion was obtained on 30 July 2008 in the processing of this case.  The Chief, Special Actions, DA Promotions, HRC-St. Louis, MO, stated that the applicant was considered and selected by the 2002 RCSB.  He was a member of the ARNG at the time and he delayed his promotion with a letter, dated 16 August 2002.  He was transferred to the IRR on 10 October 2003.  He was not promoted at the time due to an outdated security clearance.  He was also later flagged due to an outdated physical.  Furthermore, in September 2006, the applicant was mailed a mandatory MSO letter with instructions.  The letter also noted what would happen if he did not respond within 45 days.  A second MSO notice was sent in November 2006.  He responded to that letter by signing it and dating it 12 December 2007.  This was a year after the second notice was sent.  Because he did not respond in a timely manner, he was placed in an inactive status on 27 December 2006.  When he was placed in an inactive status, he was deleted from the promotion board from which he was selected in 2002.  He was subsequently honorably discharged on 14 January 2008 because he did not respond to the MSO letter.  He was not promoted because of numerous situations that were not beyond his control.

11.  The applicant was furnished with a copy of this advisory opinion on 6 August 2008.  He did not concur and submitted a rebuttal statement on 26 August 2008, as follows:

	a.  with respect to the delay of promotion, on or about 16 July 2002, he was notified of his selection for promotion to MAJ by email correspondence.  At the time, he was on a leave from his full time civilian employer, the Wichita State University to attend school in Oklahoma (OK) to work on a Doctor of Philosophy (PhD).  He was expected to return to KS in a tenured track professor position with increased level of responsibility at the university, and a promotion in the KSARNG due in part to being a better educated/trained professional overall.  He received support from his previous chain of command in attending the Combined Arms and Service Staff School (CAS3)/continuing military education after his residency in OK.  Military schooling was the only thing mentioned as possibly holding up a promotion prior to the 16 July 2002 notification!  At the time the state board used CAS3 as a qualifier, ultimately a discriminator for promotions in KS, whereas CAS3 was no longer a requirement by the USAR and/or the DOD.

	b.  with respect to the outdated security clearance and physical, and the transfer to the IRR:

		(1)  in August 2002, his new Battalion Commander directed that he delay his promotion until he was moved to a major position.  There was never any mention of an out of date security clearance or physical preventing a promotion or transfer, nor was there any guidance as to how the applicant could obtain a new security clearance or physical for military use/purposes without the assistance of the military.  Historically within the KSARNG, it has always been standard practice for the S-1 and/or administrative officer (most knowledgeable) or the Executive Officer to communicate administrative requirements and the action steps to be taken for the primary staff to complete and comply fully.  It is usually extremely difficult for traditional/M-Day Soldiers to accomplish obtaining a security clearance or physical outside of drill weekends, without orders to have exams on installation/at authorized facilities, or to complete the security clearance packet (a task recruiters or other select trained individuals do), particularly with little to no guidance.  The full responsibility or overall failure, if any, falls outside his realm of control.  In an initial counseling with the new commander, nothing was mentioned about an outdated security clearance or physical.  However, he did discuss with the commander plans for CAS3/Command and General Staff College (CGSC) at Fort Leavenworth, KS, the hardship of driving 16 hours round trip from Stillwater, OK to Kansas City (Olathe), KS, each month for drill while studying, and slots open/an appropriate placement in Wichita at Higher Headquarters/Troop Command as the equal Employment Opportunity/Affirmative Action (EEO/AA) Officer.  The battalion commander indicated her selection of another captain for one of three major slots on the battalion’s authorization document, and that this captain would be vacating the EEO/AA slot in Wichita.  The EEO/AA slot in Wichita, KS (only an hour out of OK) was to be an ideal fit given the applicant’s life work in diversity, studies, the location and familiarity with the Troop Command organization.

		(2)  he further expressed his commitment to the unit and KS, as  evident by driving more than 8 hours round trip for 15 years to drill; whereas Wichita was home to the applicant's two young children and his place of employment although originally from the Kansas City area.  The KSARNG during this command became very “insensitive” to the needs of the traditional Guardsmen in terms of fairness and equity issues.  An unpaid leave of absence and lack of support for tuition assistance and GI bill left him relying on scholarships, family loans, tuition/work wavers and drill checks for income!  This presented him with a hardship which became more challenged by the events of 11 September 2001 on his birthday, racial insensitivity, a rush to judgment by immature collegians on campus and some members of the military.  In addition to the rigorous doctoral level school work, the operation tempo in training and the military increased.  Time sensitive information meant daily communication with the KSARNG via cell phone, email, and fax.  The applicant proved to be a credit to himself (3.77 Grade Point Average (GPA)), the spirit of being a traditional guardsman (citizen Soldier), and his country (advocate of D/democracy) by performing Split Unit Training Assemblies (SUTA), additional duties/orders, and making unit visitations in and around KS and OK in support of Battalion readiness.  He responded to administrative requirements of the KSARNG when requested, managed his daily life under extreme stress/pressure, dealt with real world situations, and succeeded with help from reasonable people, as evidenced by the employers letters dated 9 July 2001, 2 April 2002, and 17 May 2002; UCEA Outstanding Continuing Education Student dated September 30, 2002.  However, his systems of support in school, military, and some areas of family/friends failed him. 

		(3)  delays on the part of the KSARNG, a lack of information about an appropriate placement and miscommunication with leadership caused the applicant to request a transfer.  Initial transfer requests were not favorably considered.  The applicant explored possible options in the Oklahoma Air/Army National Guard, the Army Reserve's 89th Reserve Support Command (RSC) in Wichita, and later (from October 2003 continuously) to several units in the Kansas City area from both KS and MO.  Due to circumstances beyond his control, the KSARNG failed to sign the DA form 368 as the losing unit for the gaining unit to releasing the applicant or find appropriate placement.  Whatever politics of difference and indifference where going on in KS/KSARNG, it influenced perceptions/events that occurred while in OK.  His commander and selected supervisor were insensitive during a period of multiple challenges and major responsibilities for the applicant by pushing, coordinating, and contacting individuals in OK about CAS3/military schooling expectations not required for promotion or transfer. 

		(4)  he received no pay for 4 months in 2003 (delays), bank accounts were blocked in Kansas/Oklahoma, and after receiving the October 2003 transfer to AHRC; the applicant visited units with slots (326th Areas Support Group (ASG), 310th FH, 442nd Air Reserve, and 190th (Medical) Air Guard) with no DA 368.  He felt angry and betrayed by individuals loyal to mindlessness, politicking, fear and selfishness in the ranks were not the norm for him.  Their lack of integrity in applying Army regulations fairly and equitably in several instances threatened the otherwise positive experience in military service for the applicant.  The applicant experienced night terrors related to the September 11th response, had difficulty sleeping, and was unsuccessful explaining his concerns to family.  The applicant was hospitalized and participated in outpatient counseling for his serious disappointment resulting in what doctor’s at the University of Kansas Medical Center and VA residents at KUMC called (Post Traumatic Stress Disorder (PTSD), major depression, anxieties, and fatigue) later.  The applicant had difficulty with trust verses mistrust issues with not receiving income from about November 2003 to May 2005 from any source, receiving no continuing contact from school advisor/employment opportunities (critical for military/civil livelihood), and remained unclear whether or not the military/others were trying to help or harm him toward personal goals and a quality of life with what appeared to be insensitivities. 

		(5)  according to medical reports, he suffered a heart attack with multiple mimics of slight attacks show on Electroencephalography (EEGs); kidney failure; high blood pressure and chronic severe head pressure/aches.   He had not had any prior history of social, emotional, or behavioral health concerns.  Today, the applicant reads, writes, counts and communicates well enough to indicate that the ambiguities with work, school, and most importantly the military were not insurmountable with reasonable accommodations even at his worst moments during this timeframe!  As a medical service corp., ordnance/logistics officer, doctoral student, and former commander who helped Soldiers obtain promotions and 20 years, it is unthinkable that the applicant could not have served in some appropriate capacity beneficial to the Army with all its needs/challenges to-date!  The applicants efforts at his worst moments in the time passed were attempts to stay connected to obtain what he believed was eligibility for promotion, IRR/assignments, respect for peers dead/deployed, and protect his right/responsibilities to serve three to five more good years to secure eligibility for retirement (a 20 year letter) for his children’s future!  The applicant joined the military to help pay for education, serve his state/country in times of need, and gain leadership skills transferable to a good paying job.  The applicant lost confidence in the KSARNG leadership and awaited to here from HRC-St. Louis per orders received placing him in the IRR dated October 2003. 

	c.  with respect to the failure to respond to MSO letters in a timely manner, in September 2006, he received an MSO letter with instructions and a second notice in November 2006.  He contacted HRC-St. Louis in December 2006 and spoke with certain individuals (Career Manager, Ordnance Branch).  He was informed that he had one year to find a unit to remain active, stay in the IRR, or retire if and when eligible.  He  was unaware he had been placed in an inactive status or removed from the 2002 promotion board and believed that he was a member of the IRR, eligible to earn points toward good years/retirement, return to an active reserve status and be promoted even while in the IRR.  MSO meant to the applicant that he had met his enlistment obligation.  He has until 2016 to resign his commission whereas on his military ID (reported unreturned from hospital) says “indefinitely”.  The 2016 date is a mandatory removal date from the system.  Additionally, he was contacted by Belton, MO Recruitment and Retention Command in early December stating that he had come up on a list.  He understood this list to be a negative thing and expected to have an option to either participate in an IRR muster, 30-45 day training opportunity or join an active unit.  He signed the MSO form in December 2007, electing to remain in the IRR, all toward getting points for a good year/retirement.  As such he faxed this information to HRC-St. Louis, on or about 2/28/07 after learning that HRC apparently did not receive the initial fax.  

	d.  with respect to non-receipt of promotion because of numerous situations in his control, it is noted that he has Soldiers/peers who have been promoted while in the IRR.  Why would the Army hold up a promotion/transfer for 5 years until January 2008 to honorably discharge him with 17 years of service?  He contacted the Belton Regional Readiness Command (RRC) in late December 2007/early January 2008 and was informed that AR units, a Psychological Operations and Civil Affairs unit, were being deployed but he would need to trained up to join these units.  He asked about IRR musters or appropriate placements advantageous to the Army and was informed that IRR musters were for select individuals and was not available until later 2006/early 2007.  He continued to do his part with limited information, but never fully understood with all the Army needs during this timeframe, and at his worst moment once again, why there was no contact to fill the void between IRR Soldier needs and the Army’s needs.  As an officer for 17 years, he always resolved problems for soldiers and it did not seem right for him not to finish 3 to 5 years to becoming eligible for retirement; the wait and delays alone make him eligible.  He has been in continued contact with HRC-St. Louis, and has allowed the military to help him find appropriate places to address unresolved concerns beyond his control.  He even made an Inspector general (IG) request to the KSARNG through his previous unit's Retention Noncommissioned Officer (NCO) and Battalion S-1 with little to no follow up!  After he received the January 2008 honorable discharge he immediately contacted the HRC IG Office.

	e.  he has suffered irreparable harm to his career (civilian and military), school, and finances.  He has been unsuccessful to this point (5 years) at transitioning/recovering into as reasonable a life as can be expected.  The applicant understands the options available to the Army Review Boards Agency, and pray the ABCMR returns a favorable decision satisfactory to the applicant.  

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve.  For strength accountability purposes, the IRR consists of pre-trained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress.  One of the IRR control groups under the administrative jurisdiction of the commander HRC-St. Louis, Missouri, is the USAR Control Group (Reinforcement).  Assignment in this category is authorized for a Soldier with or without a remaining statutory military service obligation, under certain conditions.  

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other then General Officers), prescribes 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.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  

14.  Paragraph 4-11 of Army Regulation 135-155 states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components.  The officer must:

	(1)  Be on the Reserve Army Selection List serving in an active status; 
	(2)  Be in the zone of consideration as appropriate; 
	(3)  Be medically qualified; 
	(4)  Have undergone a favorable security screening; 
	(5)  Meet standards of the Army Body Composition Program (AR 600-9); 
	(6)  Be a satisfactory participant (attend unit drills).

15.  Paragraphs 4-12 and 4-13 of Army Regulation 135-155 state that each Ready Reserve officer is required to undergo a medical examination in accordance with Army Regulation 40-501 (Standards of Medical Fitness) at least once every 5 years.  A partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.  Additionally, promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  

16.  Paragraph 4-15 of Army Regulation 135-155 states, in pertinent part, that the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  The promotion memorandum is not issued before the date the promotion board results are approved and confirmed by the Senate (if required). In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/(Individual Mobilization Augmnetee (IMA) officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.

17.  Paragraph 4-15 of Army Regulation 135-155 states that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met (emphasis added).  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. 

18.  Army Regulation 135-155 provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to CPT through LTC.  The regulation provides that in order to be qualified for promotion to LTC an individual must have completed 50 percent of the CGSC and 7 years of time in grade (TIG) as a MAJ before the convening date of the respective promotion board.

19.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), Paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in a Reserve Component was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years.

20.  Army Regulation 135-180 also specifies, in part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.  

21.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  In particular, paragraph 7-3.1 states that  an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer (other than a commissioned WO) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from active status.

22.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

24.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity that is, what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.   Chapter 3 of this regulation states that the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.  The Army may not pay any claim previously compensated by Congress through enactment of a private law and the Army may not pay for any benefit to which the applicant might later become entitled under the laws and regulations managed by the Department of Veterans Affair.  The Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under 10 USC 1552.  

25.  DOD Directive 5200.2-R contains expanded direction and procedures for implementing the Personnel Security program.  It states in pertinent part, that depending upon the type of access issued for the clearance, individuals holding security clearances are subject to periodic reinvestigations (PR) at a minimum of every five years for Top Secret eligibility, ten years for Secret eligibility, and fifteen years for Confidential eligibility. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to major by the 2002 RCSB.  However, there is no evidence in the available records and the applicant did not submit any evidence which shows that, upon receiving his promotion notification memorandum on 16 August 2002, he had a current security clearance, was medically qualified for retention, or was assigned to a duty position authorized a grade equal to or higher than the grade in which selected.

2.  The applicant requested a delay of his promotion on 16 August 2002.  He was subsequently honorably discharged from the KSARNG and was transferred to the IRR on 14 October 2003.  He remained in the IRR until 27 December 2006.  While in the IRR, he was notified in writing that a recent change to the DOD Directive required an officer who has fulfilled his MSO to make an election to remain in the IRR.  The letter instructed the applicant to make an election, sign, date, and return the letter within 45 days.  The letter also warned the applicant that failure to respond would result in transfer to the Standby Reserve (Inactive Status List) and that after one year on the Inactive List, he would be transferred to the Retired Reserve (if eligible) or discharged.  

3.  The applicant failed to respond within the 45 day period, and having not responded within the specified time, he was transferred to the Standby Reserve (Inactive List).  While on the Inactive List, he was deleted from the promotion list. Additionally, after one year on that list, he was honorably discharged from the USAR.

4.  With respect to the applicant’s specific requests:

	a.  The applicant was ineligible for promotion to major because he did not have an updated security clearance and medical examination, and did not perform in the higher grade.  His name remained on the promotion list when he was transferred to the IRR.  However, subsequent to his receipt of the MSO letter and failure to respond within the specified time, he was transferred to the Inactive List and was thus removed from the promotion list.  Therefore, he did not meet the requirements to be promoted and failed to meet the requirements to remain promotable. 

	b.  The applicant could not be considered for promotion to the next higher grade (LTC) because.  He was never promoted to major and there is no justification to do so.

	c.  With respect to award of retirement year credit, there is no evidence that from 2002 to 2008 the applicant performed any individual or unit training or accumulated the 50 points required annually to qualify for retirement year credit. 

	d.  With respect to transfer to the Retired List, there is no evidence that the applicant completed the required 20 years for non-regular retirement.  In order to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have attained age 60; completed a minimum of 20 years of qualifying service; and served the last 6 years of his or her qualifying service as a Reserve Component (RC) Soldier.

	e.  The applicant’s security clearance investigation was completed in August 1987 and the applicant was granted a final secret clearance in January 1988.  Periodic reinvestigations (PR) are required every 10 years to maintain this level of clearance.  There is no evidence that indicates the applicant ever initiated a PR as required.  Additionally, the ABCMR does not correct records for the purpose of establishing other programs or benefits. 

	f.  With respect to the DA Form 368, the applicant is advised that a conditional release is used by military members to process for entrance into another component of the Military Service.  The applicant is currently not a member of any component of the military service and therefore this form does not apply to him. 

	g.  With respect to his contention regarding disability, there is no evidence that the applicant was issued a permanent profile for a medical reason or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB) .  The applicant in this case was honorably separated based on his own actions.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.

	h.  By law, the Army may pay claims for amounts due to applicants as a result of correction of military records.  The ABCMR does not direct payment of monetary compensation.  The ABCMR furnishes the Defense Finance and Accounting Service (DFAS) copies of decisions potentially affecting monetary entitlement or benefits.  The DFAS treats such decisions as claims for payment by or on behalf of the applicant.

	i.  Implicit in the Army's promotion, retirement, and personnel systems are the universally accepted and frequently discussed principles that officers have a responsibility for their own careers.  The applicant was a senior captain on a promotion list to be promoted to major.  He knew or should have known what it takes to get promoted.  Furthermore, even when notified in writing that if he did not respond to the MSO letter within 45 days, he would be discharged from the IRR, he failed to respond appropriately.  There does not appear to be an error or an injustice in his discharge; therefore, there is no cause for reinstatement in the IRR.

5.  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 did not submit evidence that would satisfy this requirement.  In view of the foregoing, the applicant is not entitled to relief.

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)                                         AR20080007875



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ABCMR Record of Proceedings (cont)                                         AR20080007875



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