IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20080018676 


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 that he be granted a waiver of his two non-selections for promotion to the pay grade of O-4 in the U.S. Navy Reserve (USNR) (1994/1995) and that he be allowed to accept his promotion to the rank of major based on his 2004 selection by a special selection board (SSB) convened under the Fiscal Year (FY) 2000 criteria.

2.  The applicant states, in effect, that he was serving as a USNR chaplain on active duty in the pay grade of O-3 when he was twice non-selected for promotion to the pay grade of O-4 between 1993 and 1995.  He goes on to state that at the time he was only aware of one non-selection and chose to resign from the USNR and transfer with a conditional release to the Georgia Army National Guard (GAARNG).  He continues by stating that it was not until 2004 when he was selected for promotion by an SSB convened under the FY 2000 criteria that he was made aware that he could not be promoted due to his being non-selected twice in the USNR.  He further states that he has pursued all avenues he was told to pursue and all have been to no avail.  He was not informed at the time he entered the GAARNG that he need a waiver from the Secretary of the Army for his two non-selections.

3.  The applicant provides a chronology of events and a list of supporting documents with his application (23 enclosures).



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records, though somewhat incomplete, show that he served on active duty as a chaplain in the USNR from 14 September 1984 until 1 March 1993 when he was released from active duty due to being non-selected twice for promotion and transferred to the control of the USNR Personnel Center in New Orleans, Louisiana.

3.  On 19 October 1995, the applicant submitted a request for conditional resignation from the USNR and a letter was dispatched from the USNR Personnel Center on 7 November 1995 informing the applicant that his resignation would be accepted on the condition that he accept an appointment in the Army National Guard on or before 6 March 1996.

4.  The applicant accepted a commission as a chaplain in the GAARNG in the rank of captain on 9 January 1996.  There is no evidence in the available records to show that he received a waiver for twice non-selection from the Secretary of the Army prior to accepting his appointment in the GAARNG.

5.  In April 1997, the applicant transferred to the Mississippi Army National Guard (MSARNG) and at that time it was discovered that he had never been placed before a Federal recognition board.  The GAARNG took action to have him Federally recognized in July 1997, with a retroactive date of January 1996.  The applicant continued to serve in the MSARNG until he was transferred to the Washington Army National Guard (WAARNG).  He deployed to Macedonia in support of Operation Task Force Falcon with the WAARNG.  He was subsequently returned to the MSARNG and on 31 March 2000 the MSARNG notified the applicant that based on his second non-selection for promotion and his completion of 18 years of qualifying service for retirement, he could be retained until completion of 20 years of qualifying service.

6.  The applicant was issued a 20-year letter on 26 March 2002 and on 31 March 2002 he was transferred to the Retired Reserve.

7.  In 2002, the applicant applied to this Board to have his two non-selections in the National Guard due to not being educationally qualified removed from his records because he was not properly advised or given sufficient time to meet the military education requirements after appointment and before consideration.  His request was denied by the Board.

8.  On 4 June 2003, the Office of Promotions, Reserve Components, Army Reserve Personnel Command, issued a memorandum notifying the applicant that he had been considered and not selected for promotion to major under the 1999 criteria by an SSB that convened on 25 October 2002.  The reason for his non-selection was not based on the lack of military education.  The memorandum also informed the applicant that he was still eligible and was being considered for promotion by an SSB under the 2000 criteria.

9.  On 23 November 2004, a memorandum was dispatched to the applicant by the Human Resources Command, St. Louis, Missouri, informing the applicant that he had been selected for promotion to the rank of major by an SSB convened under the FY 2000 criteria and his date of rank (DOR) was established as 22 November 2001.  However, the memorandum contained a footnote indicating that based on his twice non-selection for promotion in the USNR, he should not have been appointed in the Army Reserve or Army National Guard, that his selection was not valid, and he would not be promoted nor his retirement revoked.

10.  The applicant subsequently moved to Pennsylvania and on 17 December 2007, the Adjutant General of the State of Pennsylvania submitted a memorandum through the Chief, National Guard Bureau (NGB), to the Secretary of the Army requesting that the applicant be transferred from the Retired Reserve to the Pennsylvania Army National Guard (PAARNG) and that he be granted a waiver of his two non-selections.  The memorandum cited the severe shortage of chaplains and the applicant's support of the PAARNG in his community.  There is no evidence in the available records to show that the request was ever processed to completion.

11.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) provides, in pertinent part, that commissioned officers twice non-selected for promotion or otherwise released from active duty or active status are not eligible for appointment unless a waiver is granted under paragraph 1-8 of this regulation.  Paragraph 1-8 provides, in pertinent part, that waivers 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 the recommendation of the Chief, NGB, or the Chief, Army Reserve, through the Deputy Chief of Staff for Personnel, Department of the Army.  The waiver must be fully justified as being in the best interest of the Army and must 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.

DISCUSSION AND CONCLUSIONS:

1.  The primary issue in this case is whether or not the applicant should be granted a waiver of his two non-selections in the USNR prior to accepting an appointment in the Army National Guard.

2.  The applicable regulations specifically state that commissioned officers who are twice non-selected for promotion are not eligible for appointment unless a waiver is granted and there is no evidence in the available records to show that a request for a waiver was submitted prior to his appointment.

3.  Given the available evidence and circumstances in this case, it is not reasonable to believe that the applicant would have accepted an appointment in the Army National Guard on 11 January 1996 had he known that a waiver was required or that there was no way he would ever be promoted past the rank of captain.

4.  It is further noted that the issue was not surfaced until 2004, when he was selected by an SSB convened under the FY 2000 criteria but informed that he would not be promoted to the rank of major because he was twice non-selected in the USNR.  He had already served over 6 years in the Army National Guard and had been retired by the time he was notified or made aware that it was an issue.

5.  Accordingly, it is reasonable to presume that had he been properly advised and all administrative requirements for appointment had been properly completed in 1996, he would have either been eligible for promotion to the rank of major when selected, or he would have been denied an appointment in the Army National Guard.

6.  In any event, the applicant served honorably and had every reason to expect that he would be treated fairly and that he would be afforded every opportunity for advancement that his peers received.  However, it appears that he was not treated fairly because of administrative oversights that originated at the time of his appointment and only after he had served an additional 6+ years in the Army National Guard and 2 years in the Retired Reserve was he informed that he was never eligible for promotion.

7.  Accordingly, it would be appropriate in this case as a matter of equity that the applicant be granted a waiver of his two non-selections in the USNR effective 1 January 1996, that he be promoted to the rank of major effective 22 November 2001 with a DOR of 22 November 2001 and entitlement to all back pay and allowances from that date, and that he be placed on the Retired List in the rank of major.  

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he received the appropriate waiver of his two non-selections for promotion in the USNR to allow him to be appointed in the ARNG effective 9 January 1996, by promoting him to the rank of major effective 22 November 2001 with a DOR of 22 November 2001and entitlement to all back pay and allowances from that date, and that he be placed on the Retired List in the rank of major.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20080018676



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ABCMR Record of Proceedings (cont)                                         AR20080018676



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