IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090006483 


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 correction of his records to show his rank/grade at least as a captain (CPT)/O-3 instead of specialist (SPC)/E-4.

2.  The applicant states that he completed his Registered Nurse (RN) degree in 1997 and that his rank/grade at that time should have changed from sergeant (SGT)/E-5 to second lieutenant (2LT)/O-1, then to first lieutenant (1LT)/O-2, then to CPT/O-3, and then to major (MAJ)/O-4.

3.  The applicant provides a copy of his DA Form 2-1 (Enlisted Qualification Record); a copy of DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 January 1984; a copy of his DD Form 689 (Individual Sick Call Slip), dated 20 November 1999; a copy of his DA Form 3286-68 (Statement of Enlistment), dated 22 July 1994; a copy of his DA Form 5454-R (Request for Army/American Council on Education Registry Transcripts), and copies of various academic transcripts, computer printouts, grade reports, certificates, diplomas, and licenses, in support of his request.

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 record shows he enlisted in the PAARNG on 30 April 1983.  He subsequently entered active duty for training (ADT) on 21 June 1983, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably released from ADT to the control of his ARNG unit on 13 January 1984.  He was assigned to Headquarters Company, 109th Infantry, Scranton, PA.

3.  On 8 December 1987, the applicant’s immediate commander initiated separation action against the applicant under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  The immediate commander indicated that the applicant had 26 consecutive periods of absence without leave (AWOL) including being AWOL during annual training from 7 November 1987 through 22 November 1987.  His intermediate and senior commanders recommended approval of his separation.

4.  On 30 November 1987, Headquarters Company, 109th Infantry, published Orders 9-2 reducing the applicant from SP4/E-4 to private (PV2)/E-2, for inefficiency, under the authority of paragraph 6-43 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

5.  On 1 February 1988, the applicant was discharged from the ARNG.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of service) he was issued shows he was discharged with a character of service of general, by reason of unsatisfactory participation.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) 

6.  On 26 April 1989, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders D-04-036227, directing the applicant’s discharge from the USAR effective 29 April 1989.  

7.  After a break in service, the applicant enlisted in the USAR for a period of 6 years in the rank/grade of private first class (PFC)/E-3 on 22 July 1994.  Item 1 of his DA Form 3286-68 shows he enlisted for a civilian acquired skill for MOS 91C (Practical Nurse).  He was subsequently awarded primary MOS 91C and secondary MOS 91B.  His records also show that on 1 March 1997 he executed a 7-month extension of his enlistment in the USAR and on 8 February 2001, he again executed a 12-month extension in the USAR.  

8.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records show that on 17 August 2001, Headquarters, 81st Regional Support Command, Birmingham, AL, published Orders 229-013L honorably discharging the applicant from the USAR, effective 31 August 2001, under the provisions of Army Regulation 135-178 (Enlisted Administration Separation).  

9.  There is no indication in the applicant's records that he submitted an application for appointment as a commissioned officer or that he was appointed as a commissioned officer and/or executed an oath of office.  

10.  Army Regulation 135-100 (Appointment of Commissioned and warrant Officers of the Army) establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army.  It states, in pertinent part, that applicants with certain qualifications may apply for appointment.  These include age and years of service, citizenship, mental capacity, education, character, leadership potential, medical retention, security, and an examining board.  Soldiers who had been separated for unsatisfactory service will not be appointed as commissioned officers without a waiver.  If otherwise qualified, applicants may be appointed in grades.  Additionally, commissioned officers are promoted based on several criteria, including time in service and time in grade, military and civilian education, and in some grades, selection by a selection board. 

11.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) provides for the policies, eligibility requirements, and processing procedures for the appointment of AMEDD officers with or without concurrent call to active duty.  Appointment of qualified applicants as commissioned officers will be limited to those required to implement authorized AMEDD personnel procurement programs; meet the need for officers for active duty; fill designation table of distribution vacancies when the individual has been approved by the proponent agency for designation to fill such position; fill appropriate Ready Reserve troop program unit vacancies; fill the requirements of the Ready Reserve Reinforcements as established by Department of the Army.  Appointments within these quotas will be tendered to fully qualified individuals.  Applicants must meet the age in grade limitations, service availability requirements, medical examinations, security requirements, citizenship, and education experience. 

12.  The Commanding general, U.S. Army Human Resources Command, St. Louis, MO, or, when delegated, area commanders will tender appointment in the Reserve of the Army to an individual qualified under this regulation and approved as shown in b below with or without concurrent active duty.  The CG will issue active duty or active duty for training (ADT) orders or assign officers to a Reserve control group or Reserve unit.  Before appointments are issued, the Commander, US Army Medical Department Personnel Support Agency (USAMEDDPERSA), acting for The Surgeon General (TSG) will review applications for appointment with concurrent active duty; recommend appointment or reappointment; determine entry grade credit; issue assignment instructions; review applications for appointment without concurrent active duty for professional qualifications; determine entry grade credit based on professional qualifications; recommend appointment or reappointment if, as determined by the appointment authority, other appointment criteria are met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank/grade should be changed to CPT/O-3. 

2.  The evidence of record shows that the applicant enlisted in the PAARNG on 30 April 1983 and was discharged in the rank/grade of PV2/E-2 by reason of unsatisfactory service on 1 February 1988.  He did not hold a commission during this period of service.

3.  The evidence of record also shows that the applicant enlisted in the USAR in the rank/grade of private first class (PFC)/E-3 on 22 July 1994 and was honorably discharged in the rank/grade of SPC/E-4 on 31 August 2001.  Again, there is no evidence that he applied for a commission or that he was accepted as a commissioned officer. 

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an honorable discharge.  









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)                                         AR20090006483





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ABCMR Record of Proceedings (cont)                                         AR20090006483



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