IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100018156 


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 reinstatement retroactive to his resignation date or in the alternative reappointment, effective September 2009.

2.  The applicant states he is seeking reinstatement retroactive to his coerced resignation/discharge date or in the alternative reappointment, effective September 2009.  He claims he is eligible for reappointment; however, his request for reappointment was denied in September 2009 based on retaliation for filing equal opportunity (EO) complaints in 2002 and 2003.  He claims no reason was provided for the denial of his reappointment and reconsideration was not offered.

3.  The applicant provides the 9 enclosures identified in the "Supporting Documentation" list submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's request for reinstatement retroactive to his 2003 resignation/
discharge date was previously acted upon by the Army Board for Correction of Military Records (ABCMR), was recently reconsidered by this Board under court remand, and is currently still under consideration in the U.S. Court of Federal Claims.  As a result, this issue will not be addressed further in these Proceedings.


2.  The applicant's record shows he was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 11 May 1986.  On 8 November 2003, he requested to resign his commission.  His request was accepted by his unit on
13 November 2003, his resignation was approved, and he was honorably discharged from the USAR on 1 December 2003.  An ARPC Form 249-E (Chronological Statement of Retirement Points) in his record shows that over the 18 years he served in the USAR he completed 5 years, 6 months, and 21 days of qualifying service for retirement.

3.  On 14 September 2009, the applicant completed a written request for appointment.  In his request he stated that in November 2003, he felt coerced and compelled by his commander to resign his commission.  He also submitted a request for a waiver of the Unit Vacancy Statement requirement indicating he had been offered employment by Department of the Army that required being in the USAR and he was requesting appointment to the USAR as a result.  He further indicated he had contacted a unit located within 1 hour and submitted his biographical summary; however, the commander indicated all major (MAJ) positions were filled and he suggested contacting two other units that were located within 5 hours.  As a result, he requested a waiver of the Unit Vacancy Statement requirement and requested he instead be allowed to join the Individual Ready Reserve (IRR).

4.  In a 15 September 2009 email message from the office responsible for processing his appointment request, the applicant was informed his request for a waiver of the Unit Vacancy Statement was disapproved and that the office did not appoint Soldiers into the IRR.  He was further advised he had to be appointed into a unit and was provided a point of contact for help in finding a unit.

5.  On 28 September 2009, the applicant's reappointment request was returned without further processing by the Chief, Appointments, U.S. Army Human Resources Command, St. Louis, MO (HRC-STL).  The applicant was advised that his packet had been reviewed by the Civil Affairs Branch and Quartermaster Branch; however, both branches disapproved his request for reappointment. 

6.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the USAR.  Paragraph 1-5 contains guidance on basic branch appointment limitations and states they will be limited per year to the total 


authorized by the Department of the Army Total Accession Plan.  It further states applications for direct appointment will be processed for position vacancies only when there is no qualified officer available.  It further states IRR appointments will only be tendered to exceptionally qualified persons in the grade of captain (CPT) or below.  Appointments will be limited to applicants who otherwise cannot obtain a commission because of the lack of a position vacancy in a Troop Program Unit (TPU) of the USAR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reappointed a USAR officer effective September 2009 has been carefully considered.  However, by regulation, appointment to a TPU of the USAR requires a vacant position in a USAR TPU for which another officer is not qualified and by the applicant's own admission a TPU slot was not available.

2.  Further, appointments to the IRR are limited to exceptionally qualified officers in the grade of CPT or below who cannot obtain a commission due to the lack of a position vacancy in a TPU.  As a result, given the absence of an available TPU position and the fact the applicant held the rank of MAJ and was not eligible for an IRR appointment, it appears there was no Army need for his appointment and it was appropriately denied.

3.  The evidence of record shows the applicant submitted an application for appointment in the USAR and that this application was properly processed through appropriate channels and ultimately denied after he had not been accepted by either the Civil Affairs or Quartermaster branches.  There is no evidence of record or independent evidence provided by the applicant that would support his assertion his reappointment was denied as retaliation for his previous EO complaints.  

4.  The evidence shows his reappointment was denied based primarily on the lack of a position vacancy in a TPU and his not being accepted by either the Civil Affairs or Quartermaster branches.  Further, the record confirms that in his 
over his 18 years of USAR service, he completed only 5 qualifying years for retirement.  As a result, it appears he was not an ideal candidate for reappointment.  Absent any evidence of error or injustice in the processing of his request for reappointment, there is an insufficient evidentiary basis to support granting the 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)                                         AR20100018156



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ABCMR Record of Proceedings (cont)                                         AR20100018156



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