IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090005625 


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 reconsideration of an earlier appeal that his military records be corrected to show only one non-selection for promotion to captain (CPT).

2.  The applicant states, in effect, that his two previous non-selections preclude him from attending the Judge Advocate General’s Corps (JAGC) officer basic course.  The applicant further states that since his appointment as a CPT in the JAGC, he has not been able to perform duties as a JAGC officer and he even had his specialty reverted back to an Adjutant General's Corps (AGC) specialty.  Since then he has been ordered to active duty for mobilization.  The applicant contends that by the Army assigning him to a unit and mobilizing him, the Army has, in effect, constructively waived his non-selection to CPT and that the Army Board for Correction of Military Records (ABCMR) should delete his 1996 non-selection for promotion to CPT so that he may attend the JAGC officer basic course.

3.  The applicant provides:

	a.  U.S. Army Human Resources Command (USAHRC) Orders C-06-718987, dated 14 June 2007;

	b.  USAHRC Orders C-07-723479, dated 26 July 2007;

	c.  USAHRC Orders C-07-72347R, dated 21 August  2007;


	d.  Headquarters, 63rd Regional Readiness Command, Orders 
08-351-00003, dated 16 December 2008; and 

	e.  Headquarters, 304th Sustainment Brigade, Orders 08-352-00003, dated 17 December 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by ABCMR in Docket Number AR2003098814 on 10 August 2004.

2.  On 11 June 1989, the applicant was appointed as a U.S. Army Reserve (USAR) second lieutenant, AGC.  He completed the AG officer basic course in 1993.

3.  The applicant was first considered and not selected for promotion to CPT by the 1996 Reserve Component Selection Board (RCSB).  He was again considered and not selected for promotion to CPT by the 1997 RCSB.  

4.  The applicant earned a Juris Doctorate degree and was licensed to practice law before the California State Bar on 2 June 1997.

5.  The applicant was honorably discharged in the rank of first lieutenant (1LT) on 7 May 1998.

6.  The applicant, who was without a military connection, sought appointment as a JAGC officer in the USAR.  On 18 October 2003, he was appointed as a Reserve Officer of the Army in the JAGC as a CPT.  He did not complete the JAGC officer basic course.

7.  USAHRC Orders C-06-715634, dated 8 June 2007, show that the applicant was released from the Standby Reserve (Inactive List) and assigned to the USAR Control Group (Reinforcement) as a CPT, Judge Advocate (JA).

8.  USAHRC Orders C-06-718987, dated 14 June 2007, show that the applicant was released from the USAR Control Group (Reinforcement) and assigned to the 311th Corps Support Command as a CPT, JA.


9.  USAHRC Orders C-07-723479, dated 26 July 2007, show that the applicant was released from the 311th Corps Support Command and assigned to the 
USAR Control Group (Reinforcement).  The additional instructions state "SOLDIER WAS NEVER APPOINTED AS A JA AND NEVER ATTENDED JA OBC.  SOLDIER'S TRANSFER TO A JA POSITION WAS UNAUTHORIZED (NOT BRANCH QUALIFIED)."

10.  A 9 August 2007 letter addressed to the applicant from the Chief, Appointments Branch, USAHRC, shows that his appointment as an officer in the USAR JAGC was revoked.  That office stated the applicant was twice non-selected in the Army Reserve for the rank of CPT, AGC, by the Department of the Army Promotion Review Board.  That office concluded that no formal discharge was to be issued.

11.  USAHRC Orders C-06-718987R, dated 21 August 2007, revoked USAHRC Orders C-06-718987, dated 14 June 2007, which appointed him as a CPT, JA, in the 311th Corps Support Command.

12.  USAHRC Orders C-06-715634R, dated 2 October 2007, revoked USAHRC Orders C-06-715634, dated 8 June 2007, which assigned him to the USAR Control Group (Reinforcement) as a CPT, JA.

13.  USAHRC Orders C-07-723479R, dated 21 August 2007, revoked USAHRC Orders C-07-723479, dated 26 July 2007.

14.  Headquarters, 63rd Regional Readiness Command, Orders 08-351-00003, dated 16 December 2008, show that the applicant was released from the 311th Corps Support Command and assigned to the 304th Sustainment Brigade as a CPT, AG.

15.  Headquarters, 304th Sustainment Brigade, Orders 08-352-00003, dated 17 December 2008, show that the applicant was ordered to active duty as a CPT, AGC, for Operation Iraqi Freedom.

16.  Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers of the Army) provides guidance on the eligibility criteria for appointment of Reserve officers.  Paragraph 1-7 states that commissioned officers twice passed over for promotion are not eligible for appointment unless a waiver is authorized.


17.  Army Regulation 135-175 (Separation of Officers) states, in pertinent part, that officers in the grade of 1LT, CPT, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after the second consideration by a Department of the Army RCSB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show only one non-selection for promotion to CPT because his two previous non-selections preclude him from attending the JAGC officer basic course.  He further contends that since his appointment as a CPT in the JAGC, he has not been able to perform duties as a JAGC officer and he even had his specialty reverted back to an AGC specialty.  The applicant states that by the Army assigning him to a unit and mobilizing him, it has, in effect, constructively waived one of his non-selections to CPT and that the Board should delete his 1996 non-selection for promotion to CPT so that he may attend the JAGC officer basic course.

2.  The evidence of record shows that the applicant was not selected for CPT by the RCSB in 1996 and 1997.  In accordance with Army Regulation 135-175, he was discharged from the USAR as a AGC officer on 7 May 1998 in the rank of 1LT.

3.  On 18 October 2003, the applicant was appointed as a Reserve Officer of the Army in the JAGC as a CPT.  There is no evidence in his record that show a waiver was granted for his appointment.  However, the evidence of record shows that a letter, dated 9 August 2007, from the Chief, Appointments Branch, USAHRC, revoked his appointment with no formal discharge.  In effect, changing his status back to being discharged from the USAR as of 7 May 1998.

4.  The Board presumes that an administrative oversight occurred when the applicant applied to become a JAGC CPT.  It appears he did not inform the JAGC recruiter that he was a two-time non-select for promotion to CPT, and the Army did not discover this fact before appointing him.  In any event, his appointment was revoked; therefore, his contentions concerning this appointment are moot.

5.  If the applicant can provide any evidence to show he was paid for any drills or active duty during the period of his erroneous appointment that may be collected as a debt as a result of his appointment being erroneous, he may apply to this Board for the appropriate consideration.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR2003098814, dated 10 August 2004.



      ___________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)                                         AR20090005625



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ABCMR Record of Proceedings (cont)                                         AR20090005625



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