IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120005151 


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 that he be promoted to the rank of captain (CPT) and that his records be corrected to reflect all of his service.

2.  The applicant states that he was a drilling simultaneous membership program (SMP) Soldier during Reserve Officers’ Training Corps (ROTC) and was never given credit or pay for that time.  He goes on to state that during his active duty service obligation tour he was being tracked as a National Guard, Reserve and Active Duty officer all at the same time and was not promoted on time.  

3.  He also states that because of the confusion, he was not promoted to the rank of CPT and he was not able to apply for continued service.  He further states that at the end of his active duty tour he was discharged from active duty and the Army National Guard and was transferred to the U.S. Army Reserve (USAR) where he was discharged because he did not complete a Military Service Obligation (MSO) letter, which he did not receive in time to prevent being transferred to an inactive status.  

4.  He continues by stating he was notified that he mistakenly had not been considered for promotion but could not be considered by a Special Selection Board (SSB) unless the Board approved it because he had been placed in an inactive status. 

5.  The applicant provides a list of five supporting documents with his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 July 2002.  He completed his training as a water treatment specialist.  He served in Iraq from 2003 – 2004 and was promoted to the pay grade of E-5 on 1 September 2005.

2.  On 3 January 2006, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-2, to enter an officer training program.

3.  On 4 January 2006, he entered the USAR Control Group (ROTC) and on 
11 January 2006 he enlisted in the Texas Army National Guard (TXARNG) under the ROTC SMP option.

4.  On 15 December 2007, he was appointed as a Quartermaster Corps second lieutenant in the TXARNG.  He was ordered to active duty on 3 July 2008 for a period of 3 years to complete his active duty service obligation.  He was discharged from the TXARNG on 28 April 2009 and was transferred to the USAR.  On 7 July 2009, he was promoted to the rank of first lieutenant (1LT).  He deployed to Afghanistan during the period 20090607 – 20100713.

5.  On 12 April 2011, a memorandum was dispatched from the U.S. Army Human Resources Command (HRC) at Fort Knox, Kentucky indicating that the applicant would be considered for promotion to the rank of CPT due to the fact that his date of rank was incorrect and his records were not reviewed by the 2011 CPT Army Promotion Board.

6.  On 2 July 2011, he was honorably released from active duty (REFRAD) in the rank of 1LT due to completion of required service. 

7.  On 15 August 2011, orders were published showing that he was transferred to the inactive list of the Standby Reserve due to not making an MSO election.   However, on 7 March 2012 those orders were revoked.

8.  On 25 January 2012, HRC dispatched a memorandum to the applicant informing him that because his active reserve status had been changed to an inactive status for failure to respond to his MSO letter, his prior consideration of promotion by an SSB had been terminated and processing could not be resumed without a Board directive.

9.  A review of the Interactive Web Services database reveals that MSO Election letters were dispatched to the applicant on 16 May and 30 June 2011.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policy and procedures for the promotion of commissioned officers of the Army National Guard and commissioned and warrant officers of the USAR.  It specifies, in part, that officers who have either failed selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate.  

11.  SSBs are convened under the Reserve Officer Personnel Management Act and will reconsider officers who were wrongly not considered and/or who were reconsidered but not selected for promotion by a mandatory promotion board on or after 1 October 1996.

12.  Department of Defense Directive (DODD) 1235.13, paragraph 4.5 provides that officers who have fulfilled their MSO and have not taken action to elect to remain in the Individual Ready Reserve (IRR) shall be advised of the requirement to remove them from the military.  The Military Departments shall remove those officers from the military within 2 years after fulfillment of the officer’s MSO unless they positively elect to remain in the IRR past their MSO.    

DISCUSSION AND CONCLUSIONS:

1.  While it is not readily apparent why the applicant did not submit an MSO election, it is apparent that based on the events that occurred from his appointment until the time of his being ordered to active duty that his records have not been handled correctly and possibly that his service has not been correctly reflected in his records.

2.  The notification by HRC also confirms that his records were not properly configured at the time of his eligibility for promotion to the rank of CPT.

3.  Consequently, as a matter of justice and equity, the applicant should be afforded one more opportunity to complete an MSO election and the applicant’s records should be reviewed to ensure that he receives proper service credit and that his records be placed before the appropriate SSBs for promotion to the rank of CPT provided he completes an MSO election statement. 

4.  Additionally, in the event that the applicant is selected for promotion to the rank of CPT, he is entitled to all back pay and allowances that flow from that promotion, to have his transfer to the Standby reserve voided, and to have any changes to his service dates as are deemed appropriate.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Allowing the applicant to complete an MSO Election within 90 days of these proceedings 
* Provided he does complete the MSO election, conducting a review of his official records to ensure he is credited with all of his service for pay and date of rank
* Again provided he completes the MSO election, voiding his transfer to the Standby Reserve
* Placing his records before the appropriate SSBs for promotion to the rank of CPT and if selected, paying him all back pay and allowances that flow from that promotion 
 
2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promoting him to the rank of CPT without consideration by a promotion board and consideration for promotion without making an MSO election.  




      _______ _  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)                                         AR20120005151





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ABCMR Record of Proceedings (cont)                                         AR20120005151



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