BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120012475 


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 Utah Army National Guard (UTARNG) Orders Number 040-144 dated 7 March 1996, his promotion memorandum for promotion to the rank of captain (CPT), and the memoranda of his non-selection for promotion to major (MAJ) be revoked and removed from his official records and that he be reappointed to the rank of first lieutenant (1LT) with an adjusted date of rank to make him promotable and that his original contract be reinstated.

2.  The applicant states, in effect, he was medically discharged from the Army and the Reserves on 19 January 1996 and all appointments were terminated.  However, on 7 March 1996, the UTARNG published orders that transferred him to the U.S. Army Reserve (USAR) effective 6  February 1996, which was a conflicting order.  He goes on to state that he was promoted to the rank of CPT and was subsequently passed over for promotion to MAJ and discharged.  He continues by stating that in March 2006 he was contacted by a recruiter from the UTARNG and enlisted as a sergeant (SGT).  He further states that he should have been allowed to regain his commission because the errors that occurred in his case were through no fault of his own.  Accordingly, the orders transferring him to the USAR and his promotion to CPT and passovers to MAJ should be revoked and removed and he should be reinstated to the rank of 1LT (P) with an adjusted date of rank (DOR) and his original contract reinstated.

3.  The applicant provides copies of his:

* Disability separation orders and memorandum
* UTARNG Orders 040-144 dated 7 March 1996
* Promotion Memorandum to CPT
* Two memoranda of non-selection to MAJ

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.  The applicant was born in 1968 and was commissioned as an infantry second lieutenant in the UTARNG on 10 June 1988.  He was promoted to the rank of 1LT on 24 May 1991. 

3.  On 19 January 1996, orders were published by the U.S. Total Army Personnel Command discharging the applicant effective 6 February 1996 due to physical disability with severance pay.

4.  On 7 March 1996, orders were published by the UTARNG which honorably discharged him from the UTARNG on 6 February 1996 and transferred him to the USAR Control Group (Reinforcement).

5.  On 29 October 1998, a memorandum was published by the U.S. Total Army Personnel Command in St. Louis promoting him to the rank of CPT.

6.  On 16 July 2002 and 7 August 2003, memoranda were dispatched by the U.S. Total Army Personnel Command in St. Louis notifying him that he had been non-selected for promotion to MAJ and that he must be removed no later than           1 February 2004.

7.  On 9 March 2006, the applicant enlisted in the UTARNG in the pay grade of E-5 and served until he was honorably discharged on 3 June 2008 due to dependent hardship.

8.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which recommends partial approval of his request.  The opinion states that the applicant was erroneously transferred to the USAR when he was discharged from the UTARNG.  However, such transfer was not authorized under law and resulted in his being promoted to the rank of CPT and passed over to the rank of MAJ.  Additionally, 2 years later he was erroneously allowed to enlist in the UTARNG in the pay grade of E-5 and was subsequently discharged for dependent hardship.  The opinion goes on to state that the applicant would have exceeded the maximum age requirement to be reappointed as a 1LT in 2006, which was 33 years of age.  The applicant was 38 years of age at the time and would have required a waiver.  The opinion recommends that the initial discharge order from the UTARNG be amended to delete the transfer to the USAR Control Group (Individual Ready Reserve), that his 2006 enlistment in the UTARNG be voided, that his service after his discharge on 6 February 1996 be voided and declared inactive service, that his promotion to CPT be voided, that his passovers to MAJ be voided and removed from his records and that any monies he received during his erroneous enlistment not be recouped.

9.  The advisory opinion was provided to the applicant for comment and he responded  to the effect that he had rehabilitated his knee after his medical discharge and was able to pass the physical for enlistment and contends that had the mistake by the UTARNG transferring him to the USAR Control Group (Individual Ready Reserve) not been made, he would have been afforded an opportunity to apply for reappointment instead of enlistment and continue the career he started 25 years ago in the rank he held at the time his career was halted.

10.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) 
provides in paragraph 7-8(a) that Soldiers who are found medically unfit for retention will be discharged from the Reserve Component unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be reappointed to the rank of 1LT (P) in the ARNG with an adjusted DOR has been noted and appears to lack merit.

2.  The applicant’s age exceeds the age requirement for appointment as a 1LT unless a waiver is granted.  The NGB is the proponent for issuing such waivers and does so based on the needs of the ARNG at the time.  While there is no indication that the applicant would have been re-appointed as a 1LT in the ARNG 


in 2006, based on the advisory opinion, it does not appear that the NGB supports a waiver at this time.  In addition, he provides no explanation as to why he waited over 15 years to question these errors.

3.  While it is indeed unfortunate that the applicant was erroneously transferred to the USAR at the time he was medically discharged from the UTARNG, the fact remains that he should have been discharged.  

4.  If his transfer to the USAR were to be revoked, then his promotion to the rank of CPT should also be revoked and his two non-selections for promotion to MAJ should be voided and removed from his records and all service during the period of 7 February 1996 to 8 March 2006 should be voided.  However, his enlistment in the UTARNG as an E-5 in 2006 does appear to be a valid enlistment and that service remains valid.

5.  Nevertheless, the applicant’s request appears to be in the form of a “package deal” – revoke his CPT promotion memorandum and remove his non-selection for promotion to MAJ memoranda only contingent upon his appointment as a 1LT being reinstated.  Since appointment as a 1LT does not appear to be appropriate, no action should be taken at this time to revoke his CPT promotion memorandum and remove his non-selection for promotion to MAJ memoranda without his specifically asking for those corrections knowing reappointment as a 1LT is not a likely option.

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 probably error or injustice.  Therefore, the Board determined that the overall merits of the 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)                                         AR20120012475





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ABCMR Record of Proceedings (cont)                                         AR20120012475



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