IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090003484 


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, his status in the Retired Reserve be corrected to show he is assigned to the Individual Ready Reserve (IRR).

2.  The applicant states, in effect, that his being erroneously assigned to the Retired Reserve prevents him from reentering the National Guard.

3.  The applicant provides a copy of an order which transferred him to the United States Army Reserve (USAR) Control Group (Reinforcement) effective 20 December 1995 in support of this application.

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 show he enlisted in the Regular Army on 9 December 1982.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of tactical microwave system repairman.  The highest enlisted rank he attained while serving on active duty was specialist five/pay grade E-5.

3.  On 9 August 1984, the applicant was discharged from active duty for the purpose of accepting a commission in the U.S. Army Reserve.  On 10 August 1984, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant and continued to serve on active duty until he was released from active duty with a voluntary incentive (Special Separation Benefit) in the rank of captain/pay grade O-3 and transferred to the USAR Control Group (Reinforcement) effective 21 September 1992.

4.  The applicant provided a copy of orders reassigning him to the USAR Control Group (Reinforcement) effective 20 December 1995 for failing to report to his assigned troop program unit from his prior IRR assignment.

5.  On 10 June 1996, the applicant received a notification of promotion status which indicated he was not selected for promotion to the next higher grade.  It showed that it was his first nonselection for promotion to that grade.

6.  While no documentation is available to the Board showing the applicant's second nonselection for promotion to the next higher grade, it can be presumed from available evidence that the applicant was subsequently nonselected for a second time while assigned to the USAR Control Group (Reinforcement).

7.  The orders separating the applicant from the IRR are not a matter of record.

8.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in pertinent part, requires that officers who are twice considered for promotion but not selected for promotion be removed from an active status.  This regulation further states that Retired Reserve Soldiers who were removed from an active status by board action, operation of law, or whose transfer to the Ready Reserve would result in their immediate removal by operation of law (in this case, Title 10, U.S. Code, section 14505 - Effect of failure of selection for promotion:  Reserve captains of the Army, Air Force, and Marine Corps and Reserve lieutenants of the Navy) are ineligible for transfer to the Ready Reserve.

9.  Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers) states in pertinent part, that members of the Army Reserve not selected for promotion to major after a second consideration who 
have completed the officer's statutory military service obligation will be discharged or transferred to the Retired Reserve (if eligible and requested by the member) for failure to be selected for promotion after a second consideration by a Department of the Army Reserve Components selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is erroneously assigned to the Retired Reserve instead of the IRR.  The applicant had the choice of being transferred to the Retired Reserve or being discharged at the time of his second nonselection for promotion to major.  However, assignment to the IRR was not an available option.

2.  Based on available evidence, the applicant was removed from an active status in accordance with Army regulations and an operation of law (dictated by existing legal principles) due to his failure to be selected for promotion to major after two considerations.  As such, he could not and cannot be assigned to the IRR.

3.  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.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected.

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)                                         AR20090003484



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ABCMR Record of Proceedings (cont)                                         AR20090003484



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