BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100012098 


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 to be reinstated in the U.S. Army Reserve (USAR) to attend the Officer Basic Course (OBC).

2.  He states, in effect, that he was discharged from the USAR for being a two-time non-select for promotion and not being OBC education qualified.  Prior to his discharge, he was pending an administrative separation board of officers, which flagged him from attending OBC.  He states after waiting 18 months the U.S. Army Human Resources Command (USAHRC) approved the recommendation that he be retained in the USAR.  He continues that the USAHRC decision came a week after he was passed over for the second time and he was told that he would be discharged from the USAR.  The applicant states that the whole situation was unjust and he should be retained in the USAR and be able to attend OBC.

3.  The applicant provides:

* a USAHRC, St. Louis (USAHRC-STL) memorandum, dated 22 February 2007
* an email message from the USAR, 70th Regional Readiness Command (RRC) G-1, dated 10 July 2007
* a USAHRC-STL memorandum, dated 3 March 2008
* four orders from Headquarters, U.S. Army Reserve Command (USARC), Fort McPherson, GA  
* USAHRC-STL Orders Number D-01-900407, dated 13 January 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  He was appointed as a USAR commissioned officer in the rank/grade of second lieutenant (2LT)/O-1 on 19 July 
2001 in the Military Intelligence Branch.  On 7 November 2001, he transferred to the Washington Army National Guard (WAARNG).

2.  On 19 July 2003, he was promoted to first lieutenant (1LT)/O-2.

3.  His USAHRC Soldier Management System (SMS), Transaction History, indicates in the entry dated 6 July 2005 that he failed his physical training exam prior to OBC and his active duty for training (ADT) order for OBC was revoked.

4.  On 8 February 2006, he was honorably discharged from the Army National Guard and he was transferred to the USAR Control Group (Annual Training) for failure to complete a branch or basic entry specialty qualification course.

5.  His USAHRC SMS, Transaction History, indicates in entries dated 14 March 2006 and 6 April 2006 that his ADT order for OBC was amended and his period for the course was from 3 April 2006 to 9 August 2006.  It was further noted the applicant was over-weight and he did not pass his body fat taping.

6.  USAHRC Orders T-03-603210A01, dated 11 April 2006, show he was ordered to ADT to attend OBC with a reporting date of 3 April 2006.  The period of ADT was amended to read 158 days instead of 129 days.

7.  His military records do not contain a DA Form 1059 (Service School Academic Evaluation Report) that shows he successfully completed OBC during the period of his ADT orders.

8.  On 22 February 2007, he was notified by memorandum from the Chief, DA Promotions, USAHRC-STL, that he was considered and not selected by the 2006 Captain (CPT) Army Promotion List (APL) Reserve Component (RC) Promotion Selection Board that convened on 7 November 2006.

9.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows an involuntary separation board was held on 12 May 2007 and the board members recommended that the applicant "be retained in service, and to the extent possible, be trained in MOS suited to his abilities."

10.  By email from the USAR, 70th RRC G-1, dated 10 July 2007, he was notified that he had adverse action against him and he was not to have any favorable personnel actions or attend schools until USARHC approved or denied the findings and recommendations of the board of officers.

11.  On 3 March 2008, he was notified by USAHRC that the board of officers proceedings had been reviewed.  The findings and recommendations of the board were approved and he would be retained in the USAR.

12.  The applicant was not selected for promotion by the 2007 CPT APL RC Promotion Selection Board or the 2008 CPT APL RC Promotion Selection Board.

13.  He provided four orders from Headquarters, USARC, Fort McPherson that show his discharge dates of 28 November 2008 and 4 December 2008 were both revoked.

14.  USAHRC-STL Orders D-01-900407, dated 13 January 2009, show he was honorably discharged from the USAR effective 31 January 2009.

15.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, USAHRC-STL.  The advisory opinion recommended denial.  The advisory official stated, "The applicant's request for relief is based solely on the finding from a board of officers that recommended that he not be involuntarily separated from the U.S. Army Reserve, dated March 3, 2008.  At the time he was non-selected for promotion by the November 2006 and the November 2007 selection boards due to being not educationally qualified.  The applicant had been flagged for an adverse action since September 2006 and he was not permitted to attend military schooling per Army Regulation 600-8-2 (Suspension of Favorable Actions).  As a result, the applicant was again not educationally qualified for promotion and he was passed over by the November 2008 promotion board and subsequently discharged from military status on January 31, 2009."

16.  The advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 25 October 2010, in his rebuttal to the advisory opinion, the applicant states, in part, that the advisory opinion was correct in the timeline of events; however, it was missing several important issues.  Nowhere does it state he received several discharge orders from his command in October 2008 prior to the November 2008 promotion board that were revoked and again in December 2008.  He states that he went to OBC in April 2006 and he was released in August 2006 with a month left to complete.  In September 2006, an involuntary separation board convened.  He states prior to the board he had no contact with his chain of command.  He states 

that the advisory opinion stated that he was a legitimate two-time non-select for promotion as of the November 2008 board.  He believes his command should have discharged him 7 months and a day after his second non-select, which would have been in June 2009.  He concludes that he was wronged in the fact that the separation board took too long and that he was discharged on an erroneous two-time non-select for promotion.  He was released 5 months earlier than when he should have been if the November 2008 CPT board was counted as part of his two-time non-select for promotion.

17.  Title 10, U.S. Code, section 14505 states that an Army captain who has failed of selection for promotion to the next higher grade for the second time shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

18.  Army Regulation 135-175 (Separation of Officers) states, in pertinent part, officers in the grade of 1LT, CPT, or major (MAJ), 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 Reserve Components Selection Board.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an officer who has been recommended for promotion to the next higher grade must be in the zone of consideration before being promoted in the Reserve Components.  Promotion from 1LT to CPT required completion of OBC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the USAR to attend the OBC.  His argument revolves around the fact that he was pending separation by a board of officers, which kept him from attending OBC, which was unjust.  However, based on his two non-selections to CPT and based on the statutory guidance, he was required to be discharged from the USAR.  He was discharged for that reason on 31 January 2009.

2.  He claims the involuntary separation board took 18 months to render a decision to retain him in the USAR and kept him from attending OBC.  However, evidence of record shows he was promoted to 1LT on 19 July 2003.  In 2005, his orders to attend OBC were revoked due to him failing a physical training exam 

that led to him being discharged from ARNG by reason of failure to complete a branch or basic entry specialty qualification course.  Subsequently, he was allowed to attend OBC from April 2006 to August 2006; however, he apparently did not meet the height and weight standards and he was released from the course.

3.  In November 2006, he was non-selected for promotion to CPT.  In May 2007, he went before a board of officers for involuntary separation; this action flagged him from attending OBC.  In November 2007, he was twice non-selected for promotion to CPT.  On 3 March 2008, USAHRC approved the board's findings and recommendation that the applicant be retained in the USAR.  For some unknown reason he was still retained resulting in his again being non-selected for promotion by the November 2008 promotion board.  However, this action does not negate the fact that he had already been twice non-select for promotion by the November 2007 board.

4.  The advisory opinion did not state he was a "legitimate two-time non-select for promotion as of the November 2008 board."  All it said was that he was passed over by that board, after previously being passed over by the November 2006 and November 2007 boards.

5.  Based on the fact that the applicant had not completed his military education by the convening date of the November 2007 promotion selection board, he was not qualified for promotion.  The requirement for completion of the OBC is a long-standing requirement for promotion to CPT and he had the responsibility to ensure that he was physically fit prior to attending OBC.  He provided insufficient justification to show why he should be reinstated in the USAR.  

6.  His discharge for being twice non-selected for promotion was proper and equitable.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012098



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012098



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1