IN THE CASE OF:	  

		BOARD DATE:	    19 July 2012

		DOCKET NUMBER:  AR20110024619 


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, in effect, reconsideration of his request to adjust his mandatory removal date (MRD) to 30 April 2023, which would remove his enlisted service.

2.  The applicant states the Board made a false presumption during its consideration of his case by stating he received back pay and was made whole again.  However, he never received any back pay for his enlisted service and even if he had received back pay it would not undo the issue of him being erroneously forced to resign his commission.  He goes on to state that prior to being forced to resign his commission he was on track to quickly continue up the chain of command.  He also states that his loyalty and dedication to his fellow Soldiers demanded that he continue to serve his country in the Army National Guard as an enlisted Soldier.  

3.  The applicant continues by stating that he quickly moved up in the enlisted ranks to the pay grade of E-7 and he completed Ranger School, Sniper School, Pathfinder School and a number of other training activities, including a deployment to Iraq.  Sometime after the deployment he discovered the results of the Special Selection Board (SSB) in his records and after some research obtained guidance on the settlement of the Wasson class action lawsuit.  He further states that in his case the guidance was not followed and he was not made whole because he was not timely notified, his reappointment came only after completing a commissioning process the same as if the lawsuit had not happened, and once commissioned, he was not promoted to the rank of major as directed but interviewed until selected again as if the lawsuit had not happened.  He also states that he has now been selected for battalion command and will face a disadvantage at his next board because he missed some critical staff assignments.  Accordingly, his MRD should be adjusted from 31 August 2016 to 30 April 2023 to remove his enlisted service.  

4.  The applicant provides an affidavit in support of reconsideration and a legal opinion regarding the Board’s denial of relief from his brigade staff judge advocate.

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 AR20110006343, on 21 June 2011.

2.  The applicant was born on 27 April 1965 and enlisted in the Wisconsin Army National Guard (WIARNG) on 17 December 1985.  He was promoted to the pay grade of E-6 on 12 June 1987 and completed Reserve Component Officer Candidate School.  On 13 August 1988, he was honorably discharged from the WIARNG to accept an appointment as a commissioned officer. 

3.  He was commissioned as an infantry second lieutenant in the WIARNG on 14 August 1988.  He was promoted to the rank of first lieutenant on 13 August 1991 and the rank of captain on 18 December 1993.

4.  On 10 August 2000, he was notified that he had been considered and was not selected for promotion to the rank of major by the Fiscal Year 2000 Department of the Army Reserve Component Major Army Promotion Mandatory Selection Board that convened on 7 March 2000.

5.  The applicant submitted his resignation from the WIARNG and indicated that he desired to continue his service in an enlisted status.  He resigned his commission on 18 January 2001 and on 19 January 2001 he enlisted in the WIARNG in the pay grade of E-5.  He was promoted to the pay grade of E-6 on 1 June 2001 and to the pay grade of E-7 on 1 June 2003.  He was ordered to active duty on 7 June 2004 in support of Operation Enduring Freedom and deployed to Iraq from 24 November 2004 to 3 November 2005.  He was honorably released from active duty on 8 November 2005.

6.  In October 2005, a settlement was reached in the class action lawsuit of Wasson vs. The Secretary of the Army which charged that the 2002 – 2003 Reserve Component Department of the Army Major Army Promotion List Selection Boards were given incorrect guidance concerning the military education requirement for promotion.  As part of the settlement, all officers who were part of the lawsuit were reconsidered for promotion by a standby board.  Those officers who were selected by a standby board and were still serving in the National Guard in an enlisted or warrant officer capacity were granted a reappointment to their previous commissioned status with an effective date before their discharge or enlistment.  The applicant was not one of the individuals who were identified as part of that lawsuit.

7.  However, it appears that the National Guard Bureau (NGB) extended the same treatment to officers who had been considered by earlier boards as it appears that he received the same or similar treatment as those identified in the lawsuit.

8.  The applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 14 March 2006.

9.  On 22 October 2007, he was honorably discharged from the WIARNG for the purpose of accepting an appointment as a commissioned officer.

10.  On 6 November 2007, he was appointed as a commissioned officer in the WIARNG in the rank of captain effective 17 January 2001.

11.  The applicant’s records were placed before an SSB to reconsider officers who may have been improperly nonselected for promotion based on the original board’s Memorandum of Instructions which included the requirement for captains being considered for promotion to major to possess a baccalaureate degree if his initial appointment was after October 1987.  However, it did not provide an exception for officers appointed to the rank of captain before October 1995.  Therefore, it failed to implement the baccalaureate degree exception required by law.  The applicant was selected for promotion by the SSB and was promoted to the rank of major on 11 August 2008.

12.  The applicant was awarded a Bachelor of Arts degree in Liberal Arts on 11 December 2009.

13.  The applicant was selected for battalion command and was selected for promotion to the rank of lieutenant colonel (LTC) by the Fiscal Year 2009 LTC Selection Board that convened on 8 September 2009 and was released on 
21 January 2010.  He was promoted to the rank of LTC on 1 March 2012 and his current MRD is 31 August 2016.

14.  The legal opinion provided by the applicant with his application for reconsideration essentially states that the Board erroneously denied his previous request and bases the opinion on the premise that the Army failed to comply with the court approved settlement and District Court Order in Wasson vs. The Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his problem stemmed from the fact that he was unjustly forced to resign his commission has been noted and appears to lack merit.  The applicant has failed to show through the evidence submitted and the evidence of record that he was forced to resign his commission.

2.  The applicant resigned his commission after his first nonselection for promotion to the rank of major and clearly indicated at the time that he desired to serve in an enlisted status.  While he may have decided to resign because he believed he was going to be nonselected a second time based on his civilian education, the decision to resign was his alone and he was not prompted by the Department of the Army. 

3.  While the applicant has contended that the Department of the Army did not comply with the court ordered settlement of Wasson vs. The Secretary of the Army in his case, the fact of the matter is that the applicant was not part of that settlement and the Army was not bound by that settlement in his case.

4.  However, it appears that the NGB identified a problem regarding the instructions to the selection board during the period he was considered and nonselected for promotion to major and took steps to correct the error by reconsidering him for promotion by an SSB and allowing him to be reappointed if he was selected and desired to do so.  It also appears that the NGB was trying to do the right thing by all officers in the applicant’s situation and used the procedures that were used in the class action lawsuit as the model for making the correction.

5.  It also appears that he has been promoted on time to both the ranks of major and LTC and while it is unfortunate that he may have missed some opportunities for different assignments as a commissioned officer, the fact remains that it was his decision to resign his commission and enter an enlisted status. 

6.  While his service is certainly appreciated, his decision to reapply for appointment when the opportunity was presented was made with no apparent commitment that his MRD would be changed to a future date or that his enlisted service would become null and void.
7.  It also appears that adjusting his MRD would afford him an advantage over other officers in the same situation.  Accordingly, there does not appear to be a sufficient basis for granting the applicant’s request.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20110006343, dated 21 June 2011.




      _______ _   _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)                                         AR20110024619



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ABCMR Record of Proceedings (cont)                                         AR20110024619



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