BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100021952 


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 removal of the documents pertaining to two nonselections for promotion from his record.

2.  He states he desires to explore reentry into military service as a chaplain and the two non-selections for promotion are preventing him from doing so.  When he resigned in 1990, he had a remaining service obligation.  Upon completion of his obligation, he should have been given the option to be discharged, but he was not aware of that fact.

3.  He provides:

* his DD Form 4 (Enlistment/Reenlistment Document)
* a Standard Form 88 (Report of Medical Examination)
* his DA Form 61 (Application for Appointment)
* his orders to active duty
* orders discharging him from the U.S. Army Reserve (USAR) to accept a commission in the U.S. Armed Forces
* his DA Form 71 (Oath of Office - Military Personnel)
* orders appointing him as a second lieutenant (2LT)/O-1 in the Regular Army (RA)
* his request to resign with endorsements
* orders discharging him from the RA
* his DA Form 67-8 (U.S. Army Officer Evaluation Report)
* a memorandum informing him of his appointment as a Reserve commissioned officer of the Army and promotion to captain (CPT)/O-3 as a Reserve commissioned officer of the Army
* two memoranda informing him he was not selected for promotion
* orders discharging him from the USAR
* his Officer Record Brief (ORB)
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  On 25 September 1985, the applicant enlisted in the USAR as a Reserve Officers' Training Corps (ROTC) cadet.

3.  On 10 May 1987, he accepted appointment as a Reserve commissioned officer and he entered active duty on 31 May 1987.  On 2 May 1988, he accepted appointment as a 2LT/O-1 in the RA.  

4.  On 6 April 1990, he submitted a request for unqualified resignation under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 3.  His request was approved and he was discharged from the RA on 7 June 1990 after completing 3 years and 7 days of total active service.

5.  On 7 June 1990, he was notified he had been appointed a Reserve commissioned officer of the Army for an indefinite term.  The notification memorandum also informed him he could not resign his Reserve status until completion of a total of 8 years of service.

6.  He was promoted to CPT/O-3 in the USAR on 26 May 1993.  

7.  His record in the Total Army Personnel Database-Reserve (TAPDB-R) shows his Pay Entry Basic Date (PEBD) as 10 May 1987 and that his military service obligation expired on 9 May 1995, 8 years after his PEBD.

8.  On 10 August 2000 and 26 July 2001, he was informed he was not selected for promotion by promotion boards that had convened on 7 March 2000 and 6 March 2001.  The latter notification informed him he would be discharged as a result of a second nonselection.

9.  He was honorably discharged from the USAR effective 1 January 2002.

10.  The record is void of documentation showing he was notified that he had completed his military service obligation.  The record is also void of documentation showing he contacted the USAR regarding his options for discharge or continued service.

11.  Army Regulation 635-120, then in effect, stated an RA officer must serve in the Armed Forces for a total of 6 or 8 years, as applicable.  The officer must either complete 6 or 8 years of service on active duty or a combined total of 6 or 8 years of active duty and active Reserve service (exclusive of time spent as a cadet at the United States Military Academy or as an ROTC cadet).  Officers who request resignation before completing the 6- or 8-year statutory obligation must agree to accept an indefinite appointment in the USAR to complete their service obligation.

12.  Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers) states requests for resignation may be accepted from officers who have completed their service obligation.  The regulation also states an officer in the rank/grade of CPT/O-3 who has completed his statutory military service obligation will be discharged for failing to be selected for promotion after a second consideration by a Department of the Army Reserve Components Selection Board (RCSB).

13.  Title 10, U.S. Code, Section 14505, states a Reserve CPT/O-3 who fails twice to be selected for promotion and who has not been selected for continued service under any other provision of law will be separated.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for removal of documents pertaining to nonselections for promotion.

2.  He contends that he should have been given the option of being discharged when he completed his service obligation.  In making this contention, it appears he is implying that had he been discharged he would not have been considered for promotion and, therefore, would not have been a two-time nonselect for promotion.

3.  Upon his discharge from the RA, he accepted an indefinite appointment as a USAR officer, meaning, in effect, he would not be discharged unless he resigned or failed to meet standards set in law and regulation.  Though it may be true that he was not fully informed of his options, the information is readily available from a variety of sources.  It appears he did not seek out that information, even though it was in his best interest to do so and ultimately his own responsibility.

4.  The record shows he was properly considered for promotion and not selected on two occasions.  As a result, he was discharged from the USAR as required by law and regulation.  The record shows no evidence of error, injustice, or inequity.  Therefore, he is not entitled to his 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)                                         AR20100021952



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ABCMR Record of Proceedings (cont)                                         AR20100021952



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