IN THE CASE OF:	  

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080016365 


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:

   a.  his enlistment contract be voided with reinstatement in the United States Army Reserve (USAR) Control Group (i.e., the Control Group (Reinforcement)); 

   b.  he be promoted to major/pay grade O-4 based on the results of a special selection board (SSB) with entitlement to back pay and allowances; 

   c.  a statement for the gap in his officer evaluation reports for his non-rated time as a major be placed in his official military personnel file (OMPF); and 

   d.  he be transferred to the Retired Reserve as a major.

2.  The applicant states, in effect, that he was selected for promotion to major by a SSB.  He was improperly non-selected for promotion to major in 2002 and 2003 and was subsequently honorably discharged from the Illinois Army National Guard (ARNG) and the USAR Control Group (Reinforcement) as a captain       on 30 January 2004.  He enlisted in the Illinois ARNG and served until               22 September 2006, when he was discharged and transferred to the Retired Reserve.  The applicant concludes for him to be promoted and subsequently retired as a major, he must first have his enlistment in the ARNG voided and his separation from the USAR Control Group (Reinforcement) revoked.


3.  The applicant provides copies of two NGB Forms 22 (Departments of the Army and the Air Force National Guard Bureau, Report of Separation and Record of Service); his honorable discharge orders; his enlistment contract; a civilian court class action settlement; and a memorandum informing him of his eligibility for promotion as a Reserve commissioned officer as a result of a SSB in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was appointed in the Illinois ARNG, as a second lieutenant/pay grade O-1, effective 8 July 1989.  He was promoted to first lieutenant/pay grade O-2, effective 7 July 1992, and to captain/pay grade O-3, effective 27 September 1995.

2.  The applicant was considered and not selected for promotion to major by the 2002 and 2003 Department of the Army (DA) Reserve Components Selection Boards.

3.  As a result of non-selection for promotion, the applicant was honorably discharged from the ARNG and as a Reserve of the Army, effective 30 January 2004.

4.  The applicant enlisted in the Illinois ARNG, as a sergeant, pay grade E-5, effective 31 January 2004.  He was promoted to staff sergeant, pay grade E-6, effective 1 September 2004.

5.  On 22 September 2006, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve in the rank of staff sergeant.

6.  The applicant provides a Notice of Proposed Class Action Settlement from the United States District Court for the Western District of Oklahoma.  This document, in pertinent part, mandated appearance before a SSB for all individuals who were considered but non-selected for promotion by the 2002 and 2003 DA Reserve Component Selection Boards, solely for failure to meet the civilian education requirement, given they were appointed to the rank of captain before 1 October 1995.

7.  On 18 April 2006, the Office of Promotions, Reserve Components, Human Resources Command, St. Louis, Missouri, issued a Promotion Consideration memorandum to the National Guard Bureau and the applicant.  The memorandum stated the applicant was selected for promotion to major by a SSB that convened on 1 August 2006.  The effective date of promotion was projected to be 19 June 2002.  The memorandum also stated that under the settlement agreement, the applicant was not required to return to an active reserve status to accept this promotion.

8.  An advisory opinion was rendered by the Chief of the Special Actions Branch of the Office of Promotions, Reserve Components, Human Resources Com- mand, St. Louis, Missouri.  The Chief, Special Actions Branch, recommended approval of the applicant's request.  The Chief, Special Actions Branch, acknow- ledged the applicant was recommended for promotion to major by a SSB under the 2002 selection criteria with a promotion eligibility date of 26 September 2002 and opined that the applicant was eligible for a date of rank of 19 June 2002, the date the DA Reserve Components Selection Board was approved.  The Chief, Special Actions Branch, further opined that in order to facilitate the applicant's retroactive promotion and issuance of back-pay, his enlistment contract must be voided.  The Chief, Special Actions Branch, stated that once the applicant's enlistment contract is voided, the order assigning him to the Retired Reserve will be corrected to reflect his rank as major.

9.  Army Regulation 135–155, prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that officers selected by a SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to have his discharge from the ARNG and the USAR Control Group (Reinforcement), effective 30 January 2004, while serving in the rank of captain voided.  He is also entitled to have his enlistment contract enlisting him in the Illinois ARNG in the rank of sergeant, on 31 January 2004, voided.  

2.  The applicant is also entitled to reinstatement into the USAR Control Group (Reinforcement) and promotion to major on his date of eligibility under the 2002 year criteria, with entitlement to all applicable back pay and allowances, and to have an adequate statement of explanation placed in his OMPF for the gap in his officer evaluation reports for his non-rated time for the period of his now-voided discharge to the date of his retirement as a Reserve commissioned officer.  

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.





BOARD VOTE:

___x____  ____x___  ____x___  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 state Army National Guard records and Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  voiding his USAR Control Group (Reinforcement) discharge, effective     30 January 2004, and reinstating him in the United States Army Reserve Control Group (Reinforcement) effective 30 January 2004;

	b.  voiding his 31 January 2004 enlistment in the Illinois ARNG;
      
	c.  showing he was promoted to major, on his date of eligibility, under the 2002 year criteria, with entitlement to all applicable back pay and allowances,  offsetting the pay he received in his previous status and paying to him any difference that he may be due;

	d.  including an adequate explanation in his OMPF to show the gap in his officer evaluation reports, from the date of his now-voided discharge, to the date of his return to the USAR Control Group in a Reserve officer commissioned status and showing the subsequent transfer to the Retired Reserve, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions;

	e.  expunging from his OMPF all documents related to his now-voided non-selection for promotion by the 2002 and 2003 Reserve Components Selection Boards, his USAR discharge of 30 January 2004, and his ARNG enlistment contract of 31 January 2004; and


	f.  returning his records to the Notifications Branch of the Human Resources Command, St. Louis, Missouri, for appropriate action and transferring him to the Retired Reserve in the rank of major.



      _______ _   _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)                                         AR20080016365



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ABCMR Record of Proceedings (cont)                                         AR20080016365



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