BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20080020071 


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 his date of rank (DOR) for promotion to the rank of major be adjusted from 19 July 2000 to 19 April 2006. 

2.  The applicant states that he had a break in service from 1 January 2002 to 1 October 2007 and that the 5 years and 9 months that he was out of the Reserves should not count against his time in grade as it severely impacts his potential for promotion.  He goes on to state that he cannot compete against his peers who have evaluations and military education during the time that he was erroneously discharged.  He also states that he has already appeared before the Reserve lieutenant colonel (LTC) promotion board before having the opportunity to enter and complete the Intermediate Level Education (ILE) professional development requirement.  He continues by stating that on 1 January 2002, he was honorably discharged in error as a captain from the United States Army Reserve (USAR) because he was twice non-selected for promotion to the rank of major due to not meeting the educational requirements for promotion.  He further states that the promotion boards did not have a copy of his United States Military Academy (USMA) transcripts and he was not notified that they were needed until after the fact.  Accordingly, a Special Review Board reinstated his promotion and he was reinstated to the USAR retroactively in the rank of major with a DOR of 19 July 2000.  However, the original discharge order was not revoked until 25 October 2007.  Accordingly, his DOR needs to be adjusted so that he can be afforded the same opportunity to complete the professional development requirements with his new peers.

3.  The applicant provides a copy of his discharge order, a copy of the order revoking his discharge order, a copy of his promotion order to major, and a copy of the Special Review Board Promotion Letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as an infantry Regular Army second lieutenant upon his graduation from the USMA on 24 May 1989.  He subsequently transferred to special forces branch and was promoted to the rank of captain on 1 November 1993.

2.  On 10 November 1997, as a result of his request for unqualified resignation, the applicant was honorably discharged due to miscellaneous/general reasons.  He had served 9 years, 5 months and 22 days of total active service.

3.  On 15 April 1998, he accepted a commission as a USAR captain and was assigned to the USAR Control Group (Reinforcement).  The applicant did not actively participate in the USAR and received only membership points for retirement years 14 April 1999 through 1 January 2002.

4.  Meanwhile, on 26 July 2001, a memorandum was dispatched to the applicant informing him that he had been twice non-selected for promotion to the rank of major and that his established removal date was no later than 1 January 2002.  Accordingly, he was honorably discharged from the USAR on 1 January 2002.

5.  On 25 April 2002, the applicant accepted an appointment in the California Army National Guard (CAARNG) in the rank of captain.  It appears that he was discharged from the CAARNG and was transferred back to the USAR Control Group (Reinforcement). 

6.  The applicant was considered by a special selection board (SSB) that adjourned on 25 November 2002 and was selected for promotion to the rank of major with a DOR of 19 July 2000.

7.  On 25 October 2007, the applicant's discharge orders of 21 August 2001 were voided.  The applicant is currently serving in a troop program unit in California.

8.  On 25 February 2008, the applicant was granted constructive credit for CAX (Combined Arms Exercise) and authorization to enroll in ILE, which replaced the traditional Command and General Staff Course (CGSC).  

9.  The applicant contacted officials at the HRC-STL on 29 April and 2 June 2008, indicating that he desired to be enrolled in ILE.
10.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command - St. Louis, Missouri (HRC-STL) which indicates that the applicant did not meet the education requirements at the time he was twice non-selected for promotion.  He was selected by an SSB and was subsequently reinstated and promoted.  Officials at the HRC-STL Special Actions Branch recommended that his request for a DOR adjustment be denied and further offered that the applicant could request that the period in question be declared non-rated time and that he be credited with valid retirement points for the period in question.  The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.

11.  Army Regulation 135-155 provides policy for the selection and promotion of commissioned officers of the Army National Guard and USAR.  Paragraph 2-15 of that regulation provides, in pertinent part, that in the case of an officer whose removal from active status has been determined to be invalid, the Commander, Human Resources Command (HRC), Office of Promotions (Reserve Components), may waive the education requirements during this period of invalid removal from an active status.  To qualify, the officer must have resumed participation in an active status on discovery of the error.  If circumstances warrant, the Commander, HRC, Chief, Office of Promotions (Reserve Components) may grant a waiver for an inactive or retired status period resulting from invalid removal.

12.  Table 2-2 of that regulation provides, in pertinent part, that the military education requirements for promotion to the rank of lieutenant colonel is completion of 50% of the ILE.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR should be adjusted so that he can compete with his peers who have evaluations and have met military education requirements during the period he was unjustly discharged has been noted.

2.  The applicant has the option of requesting that the period in question be deemed non-rated and he can request a waiver of the military education requirements for promotion consideration.  However, there is no indication that he has attempted to do so.

3.  It is also noted that from the time the applicant accepted a Reserve commission in April 1998, until he was discharged from the USAR on 1 January 2002, the applicant did not actively participate in the USAR nor did he participate in any military education opportunities.  Accordingly, he was not given any officer evaluations and by not continuing his military education he placed himself in a position of not being qualified for promotion to the next higher grade.  

4.  While the applicant was subsequently promoted to the rank of major and reinstated in the USAR retroactively, his inactivity as well as his failure to ensure that his records were up to date contributed to the so-called blank spots in his records just as much as the period he was discharged.  

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 has 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)                                         AR20080020071





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ABCMR Record of Proceedings (cont)                                         AR20080020071



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