IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20090021957 


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 his earlier petition for the following corrections to his record:

* voiding of his 25 February 2008 enlistment contract
* voiding of his 10 September 2007 discharge from the U.S. Army Reserve (USAR)
* promotion to captain (CPT), effective 8 February 2007
* that he be credited with qualifying service for retirement from 11 September 2007 through the present in order for his record to show no break in service

2.  The applicant states he requested a waiver for civilian education during the 2006 CPT Reserve Component Selection Board (RCSB) which was denied.  He states during annual training on 10 September 2007, he was informed he would be discharged the following day due to his non-selection for promotion.  In February 2008, he was informed if he wished to continue his service, he could enlist in his prior rank.  As a result he enlisted on 25 February 2008.

3.  The applicant states he was informed by the ABCMR on 26 February 2008 that he would be reconsidered for promotion to CPT by a special selection board (SSB).  At the time he requested his enlistment be voided pending the decision of the SSB; however, no action was taken on this request.

4.  The applicant claims that he was then advised by his chain of command to refrain from performing enlisted service as this would further complicate his situation and make correction of his records more difficult once the SSB rendered its decision.  He was then transferred to the Individual Ready Reserve.  On 9 December 2009, he was informed he had been selected for promotion to CPT and the effective date of his promotion was 8 February 2007, contingent on the 25 February 2008 enlistment being voided.

5.  The applicant provides the following documents in support of his application:

* ABCMR Docket Number AR20080011445 Record of Proceedings, dated 21 October 2008
* USAR discharge orders, dated 10 September 2007
* DD Form 4 (Enlistment/Reenlistment Document), dated 25 February 2008
* promotion memorandum, dated 8 December 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011445 on 21 October 2008.

2.  During the original review of the case, the Board determined there was insufficient evidence to grant the applicant's requested relief until the results of the SSB were released.

3.  On 8 December 2009, the applicant was informed in a memorandum from the U.S. Army Human Resources Command, St. Louis, Missouri, that a standby advisory board that convened on 23 March 2009 considered him for promotion to CPT under the criteria used by the 2006 RCSB and he was recommended for promotion.  The memorandum also confirmed the earliest possible date the applicant could be promoted was 8 February 2007 and that if he were serving in an enlisted status and accepted promotion, the enlistment contract had to be voided through this Board.

4.  Army Regulation 135-155 (Army National Guard and USAR 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 Army National Guard of the United States and of commissioned and warrant officers of the USAR.

5.  Paragraph 3-22 (Correction of military records as a result of a special selection board action) states, if a report of an SSB recommends promotion to the next higher grade, an officer not currently eligible for promotion or a former officer whose name was referred to it, the Secretary of the Army acting through the ABCMR may act to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered or which did consider the officer (Title 10, U.S. Code, section 14502(e)(3)).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his record should be corrected as needed based on his selection for promotion by an SSB has been carefully considered and found to have merit.  By regulation, the ABCMR may act to correct the record of an officer selected for promotion by an SSB to remove an error or injustice resulting from the original non-selection for promotion.

2.  In view of the applicant's selection for promotion to CPT, it would be appropriate and serve the interest of justice and equity to correct the applicant's record by voiding his 11 September 2007 discharge from the USAR, by showing he was promoted to CPT effective and with a date of rank of 8 February 2007, and by voiding his 25 February 2008 enlistment in the USAR.

3.  Further, the applicant should be credited with qualifying retirement years for nonregular retirement (retired pay at age 60) for each retirement year beginning with the retirement year ending (RYE) on 7 March 2007 and continuing through the RYE on 7 March 2010.  A total of 50 points will be awarded for each RYE by awarding 35 inactive duty training (IDT) and 15 membership points for each RYE.  In addition, he should be provided any back pay and allowances due based on this adjustment.

BOARD VOTE:

____X___  ___X____  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080011445, dated 21 October 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his 11 September 2007 discharge from the USAR;

	b.  showing he was promoted to CPT effective and with a date of rank of 7 February 2008;

	c.  voiding his 25 February 2008 enlistment in the USAR; 

	d.  crediting him with qualifying years for nonregular retirement (retired pay at age 60) by awarding a total of 50 retirement points, 35 IDT and 15 membership points, for each RYE from 7 March 2007 through 7 March 2010; and

	e.  providing him any back pay and allowances due as a result of these changes. 



      ___________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)                                         AR20090021957



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ABCMR Record of Proceedings (cont)                                         AR20090021957



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