IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090016746 


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 revocation of the orders transferring him to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He also requests reinstatement in the Army National Guard of the United States (ARNGUS) and Army National Guard (ARNG) of Kentucky (KYARNG) with no break in service and all back pay and allowances.  He further requests consideration for promotion by all relevant Department of the Army (DA) selection boards that have convened subsequent to the effective date of his reinstatement.

2.  The applicant states he was separated from the KYARNG as a major (MAJ)/ pay grade O-4 for being twice nonselected for promotion to lieutenant colonel (LTC)/pay grade O-5.

	a.  He states he was not informed he had been recommended for selective continuation (SELCON), nor was he given the opportunity to continue to serve as a MAJ after being recommended for continued service.

	b.  He only had 20 years of commissioned service when he was separated and he should have been allowed to complete 24 years of commissioned service.

3.  The applicant provides, in support of his application, copies of his separation documents, enlistment contract, and the 2008 MAJ SELCON Board List.


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer for an indefinite term on 5 May 1989 and appointed in the ARNG on 8 May 1989.  He was promoted to MAJ (O-4) on 6 September 2001.

2.  He was on a first-time nonselect list for the 2007 Reserve Component (RC) LTC Army Promotion List (APL) Board that was released on 8 January 2008.

3.  The applicant was then considered by the 2008 RC LTC APL Board, but was not recommended for promotion.  This was his second nonselect to LTC.

4.  The 2008 MAJ SELCON Board (2008 RC LTC APL Board), dated 15 January 2009, shows the applicant was selected for continued service.

5.  A DA Selection Boards, St. Louis, Missouri, memorandum, dated 10 March 2009, subject:  Special Selection Board, Report Number 0903-28, Fiscal Year 2008 RC LTC ARNGUS, Army Reserve Active Guard Reserve, and Army Reserve Non-Active Guard Reserve APL Competitive Categories, Promotion Selection Boards - Action Memorandum, notified the applicant he was again considered and not recommended for promotion to LTC in the ARNGUS.

6.  Kentucky National Guard, memorandum, dated 6 July 2009, subject: Notification of Promotion Status, notified the applicant that he was considered, but not among those selected for promotion by the board.  He was advised, as a two-time nonselect, he would be separated from the KYARNG on 31 July 2009.

7.  Kentucky Department of Military Affairs, Orders 210-831, dated 29 July 2009, separated the applicant from the ARNG effective 31 July 2009 and transferred him to the USAR Control Group (Reinforcement).

8.  National Guard Bureau (NGB), Special Orders Number 183 AR, dated 30 July 2009, withdrew the applicant's Federal recognition status effective 31 July 2009 and transferred him to the USAR Control Group (Retired Reserve).

9.   An NGB Form 22 (Report of Separation and Record of Service) shows the applicant entered the KYARNG on 8 May 1989, was honorably separated on
31 July 2009 in the rank of MAJ (O-4), and transferred to the USAR Control Group (Reinforcement).  At the time he had completed 20 years, 2 months, and 23 days of net service this period; 2 years, 9 months, and 25 days of prior RC service; 2 years, 11 months, and 14 days of prior active Federal service; and
26 years and 2 days of total service for pay/retired pay.

10.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the ARNGUS and KYARNG for a period of 1 year on 1 August 2009 in pay grade E-5.

11.  Headquarters, U.S. Army Human Resources Command, St. Louis, Missouri, Orders C-08-914461, dated 4 August 2009, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the KYARNG in the rank of sergeant (E-5) effective 1 August 2009.  The orders also show the applicant's membership in the USAR was terminated the date preceding his enlistment/appointment in the ARNG.

12.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, Virginia.

   a.  The advisory opinion states the applicant requested reinstatement in the ARNG as a MAJ, promotion to LTC, and consideration by subsequent selection boards.  The advisory official recommends partial approval of the applicant's request.  The NGB does not recommend his promotion to LTC.

   b.  The advisory official states the KYARNG erroneously separated the applicant due to being unaware that he was on the 2008 MAJ SELCON list issued on 15 January 2009.  By the time the KYARNG learned of the applicant's approved selective continuation, he had already been separated.

	c.  The applicant enlisted in the KYARNG on the date following his separation and is currently serving as a dual status technician in the KYARNG.

13.  On 12 March 2010, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond to its comments.  The only comment the applicant offered was that the advisory opinion stated he requests promotion to LTC; however, that is not the case.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers of the USAR.

   a.  Chapter 4 (Processing Selection Board Recommendations), Section V (Nonselection for Promotion), paragraph 4-34 (Selective continuation), provides that an officer twice nonselected for promotion by a mandatory Reserve of the Army selection board must be removed within the prescribed time limits. However, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to MAJ or LTC, may be selectively continued on the Reserve Active-Status List in their present grade. The Secretary of the Army (SA) may direct a selective continuation board to consider officers for continuation when required by the needs of the Reserve of the Army.  A selective continuation board must recommend the officers for continuation and the SA must approve the recommendation before officers may be continued.

   b.  Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation.

   c.  Continuation for MAJ will normally be for 3 years from the approval date of the selective continuation board by which the officer is recommended for continuation.  However, continuation may not extend beyond the date on which the officer (MAJ) completes 24 years of commissioned service.  The SA may adjust the period of selective continuation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the orders transferring him to the USAR Control Group (Reinforcement) should be revoked; he should be reinstated in the ARNGUS and KYARNG with no break in service and all back pay and allowances; and considered for promotion by all DA selection boards that have convened subsequent to the effective date of his reinstatement.

2.  The applicant was considered and twice nonselected for promotion to LTC. He was also selected for continued service by the 2008 MAJ SELCON Board.

3.  The evidence of record indicates the KYARNG was not aware of the applicant's SELCON.  As a result, he was separated from the ARNGUS and KYARNG on 31 July 2009 and transferred to the USAR Control Group (Reinforcement).  At the time he had completed 20 years, 2 months, and
23 days.

4.  The applicant enlisted in the ARNGUS and KYARNG effective 1 August 2009 without a break in service.

5.  Based on his SELCON, the applicant should have been afforded the opportunity to continue to serve in the ARNGUS and KYARNG in the rank of MAJ.  However, the applicant was not afforded this opportunity.  The evidence shows he could have served up until he completed 24 years of commissioned service (i.e., 5 May 2013).

6.  In view of the foregoing, it would be appropriate to correct the applicant's records to show he served continuously in the ARNGUS and KYARNG as a Reserve commissioned officer in the rank of MAJ (O-4) without any break in service since 31 July 2009 to the present.

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he served continuously in the ARNGUS and KYARNG as a Reserve commissioned officer in the rank of MAJ (O-4) without any break in service since 31 July 2009 to the present by:

   a.  voiding the following orders:

	    (1)  Kentucky Department of Military Affairs, Orders 210-831, dated 29 July 2009;

       (2)  National Guard Bureau, Special Orders Number 183 AR, dated 30 July 2009; and

       (3)  U.S. Army Human Resources Command, St. Louis, Missouri, Orders C-08-914461, dated 4 August 2009;

   b.  voiding his NGB Form 22 with an effective date of 31 July 2009; and

   c.  voiding his DD Form 4 with an effective date of 1 August 2009.

2.  As a result of this correction, the applicant's records should be considered by Special Selection Boards for promotion consideration to LTC and LTC command selection that he would have been considered by subsequent to his separation on 31 July 2009 to the present, had he not been erroneously separated.
3.  In addition, the Defense Finance and Accounting Service shall be notified of the Board's determination and credit the applicant with continuous service for pay purposes in the ARNGUS and KYARNG from 1 August 2009 to the present in the grade of O-4 (vice E-5), along with payment of all pay and allowances due the applicant with the same point distribution he earned as an enlisted Soldier but with payment as an O-4 as a result of this correction of his records.



      _______ _   _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)                                         AR20090016746



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ABCMR Record of Proceedings (cont)                                         AR20090016746



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