IN THE CASE OF:	  

		BOARD DATE:	    12 December 2013

		DOCKET NUMBER:  AR20130019739 


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, correction of his records to show he served continuously as a commissioned officer in the U.S. Army Reserve (USAR) and entitlement to adjustment of his pay and allowances at the pay grade O-4 rate.

2.  The applicant states the Army Board for Correction of Military Records (ABCMR) determined he was entitled to reconsideration for promotion to the rank of major (MAJ) by a special selection board (SSB) under the 1995 or 1996-year criteria in ABCMR Docket Number AR20060013728, dated 6 November 2007.

	a.  In February 2010, the U.S. Army Human Resources Command (HRC) notified him that he was selected for promotion to MAJ with a date of rank of 14 April 1996.  After 2 years of research, computations, and reviews, the Fort Carson Military Pay Office submitted a request for payment on his behalf.  The Defense Finance and Accounting Service (DFAS) denied the request for payment, possibly due to the language in the ABCMR's recommendation.  Since his promotion to MAJ was effective 14 April 1996, his pay and entitlements should have been adjusted to the rate for pay grade O-4.

	b.  He has been verbally advised by National Guard Bureau personnel that voiding his enlistment in the Wyoming Army National Guard (ARNG) could be interpreted to mean that his service did not occur.  DFAS has refused to pay the remaining pay difference between pay grade E-6 and pay grade O-4 without specific direction.

	c.  He has also been verbally advised that he may have to reimburse the ARNG for the pay and allowances he received during the 8 years he served in the Wyoming ARNG.

	d.  Had the errors in 1995 and 1996 not occurred, he would have been an MAJ in the USAR, not a twice non-selected captain (CPT), and would not have had to enlist in the Wyoming ARNG.  To suggest that he should reimburse the ARNG for 8 years of honorable military service that he performed is irresponsible.

3.  The applicant provides:

* HRC memorandum, dated 24 February 2010
* HRC memorandum, dated 17 March 2010
* HRC Orders B-03-001492, dated 17 March 2010
* ABCMR Record of Proceedings, dated 6 November 2007
* memorandum for record from Brigadier General (Retired) H____ A. D____, dated 3 September 2013
* HRC ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 July 2013
* DFAS Case Management System notes
* Fort Carson Military Pay Office computations
* related email
* self-authored summary of his case

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the Wyoming ARNG effective 2 July 1982 after having prior enlisted service.  He was promoted to the rank of CPT effective 15 April 1989.

2.  The applicant completed the Military Police Officer Advanced Course effective 28 July 1989.

3.  The applicant was separated from the Wyoming ARNG effective 1 May 1992 and transferred to the USAR Control Group (Reinforcement) (Individual Ready Reserve).

4.  On 9 July 1994, the applicant underwent a medical examination for retention in the USAR.

5.  The applicant submitted a letter to the President, MAJ, Reserve Component Selection Board (RCSB), dated 9 March 1995, wherein he requested not to have his records reviewed by the 1995 RCSB.  The applicant advised the board that he was critically injured by a homicide suspect on 23 August 1992.  Due to his physical condition after the 1992 incident and his partial disability rating from workers' compensation, he did not enroll in the Combined Arms and Services Staff School (CAS3).  Believing that his further participation in the military was questionable, he was awaiting a determination from his medical examination before enrolling in another military school.  The applicant also stated that since CAS3 was a prerequisite for promotion to MAJ, he would need to complete that course of instruction before he could be considered for promotion to that grade.

6.  The applicant was considered but not selected for promotion to MAJ by the 1995 RCSB that convened on 14 March 1995 and adjourned on 7 April 1995 and the 1996 RCSB that convened on 12 March 1996 and adjourned on 5 April 1996.  He was not qualified for promotion based on his lack of the required military education (CAS3).

7.  The applicant's records show he had not completed CAS3 prior to the convening dates of the 1995 and 1996 RCSB's.

8.  On 18 November 1996, the applicant elected to transfer to the Retired Reserve based on his non-selection for promotion to MAJ.  He transferred to the Retired Reserve in the rank of CPT effective 3 December 1996.

9.  The Department of the Army granted USAR CPT's a one-time exemption of the CAS3 requirement for the 1997 RCSB.

10.  The applicant enlisted in the Wyoming ARNG in the rank/pay grade of staff sergeant/E-6 effective 11 December 1998.

11.  HRC Orders C-01-302221, dated 23 January 2003, reassigned the applicant from the Retired Reserve to the Individual Ready Reserve effective the same date.

12.  HRC Orders C-02-304578, dated 11 February 2003, released the applicant from the Individual Ready Reserve based on his enlistment in the Wyoming ARNG effective 12 December 1998.

13.  The applicant reenlisted in the Wyoming ARNG on 31 May 2003.

14.  HRC Orders B-05-503376, dated 28 June 2005, promoted the applicant to MAJ with an effective date and date of rank of 8 June 2005.  The orders stated the promotion would be revoked if he were not in a promotable status on the effective date of promotion.  HRC Orders B-06-503376R, dated 16 August 2005, revoked these orders.

15.  On 1 November 2005, the applicant requested assistance to see if he was eligible to apply for reappointment of his USAR commission.

16.  On 1 December 2005, the Wyoming ARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

17.  A memorandum for record from the Chief, 63rd Regional Support Command, dated 21 February 2006, subject:  Appointment Packet Monitoring for (Applicant), stated the applicant would qualify for Nonregular retirement (his estimated mandatory removal date would be 1 December 2010 when he would obtain 28 years of commissioned service) and recommended the applicant's reappointment in the USAR.

18.  A memorandum from the Chief, Military Personnel Law Branch, Administrative Law Division, Office of the Judge Advocate General, dated 5 June 2006, stated the applicant could be appointed as a USAR Military Police Corps officer and he may be appointed in the grade of CPT, the highest grade he held before his most recent discharge from military service.

19.  A memorandum from the Acting Assistant Secretary of the Army for Manpower and Reserve Affairs (ASAMRA), dated 14 August 2006, approved the waiver of appointment qualifications to facilitate the applicant's appointment as a commissioned officer.  The relevant disqualifications pertained to his two-time non-selection for promotion to MAJ and maximum age for appointment.

20.  The applicant signed an oath of office and was appointed as a CPT in the USAR with an effective date of 1 May 2007.

21.  HRC Orders C-06-716175, dated 11 June 2007, reassigned the applicant to a USAR troop program unit.

22.  On 6 November 2007, the ABCMR recommended correction of all Department of the Army records of the applicant to show he was granted a waiver of the military educational requirement for consideration for promotion to MAJ under the 1995 and possibly 1996-year criteria under duly-constituted SSB's.  If selected, the Board further recommended correction of his records to show:

	a.  he was promoted to MAJ on his date of eligibility provided he was otherwise qualified and met all other prerequisites for promotion;

	b.  his transfer to the Retired Reserve for non-selection of promotion to MAJ was void and of no force or effect;

	c.  that he was credited with qualifying service for Nonregular retirement for his respective retirement years from the date of his now-voided transfer to the Retired Reserve to the date of his return to an active Reserve status;

	d.  an adequate statement in his records to explain the gap in his officer evaluation reports from the date of his now-voided transfer to the Retired Reserve to the date of his return to an active Reserve status was not caused by any fault on his part and to insure that he was not prejudiced thereby in the consideration of any future personnel actions;

	e.  expunction of all documents related to his now-voided non-selection for promotion to MAJ under the year criteria he was selected and transfer to the Retired Reserve;

	f.  his enlistment in the Wyoming ARNG effective 11 December 1998 and reenlistment in the Wyoming ARNG effective 31 May 2003 were void; and

	g.  his reappointment in the USAR in the rank of CPT effective 1 May 2007 was void.

23.  On 24 February 2010, HRC notified the applicant that he was selected for promotion to MAJ in the USAR under the 1996-year criteria by an SSB which convened on 22 September 2009.  He was recommended for promotion to MAJ with a date of rank of 14 April 1996.

24.  HRC Orders B-03-001492, dated 17 March 2010, promoted the applicant to the rank of MAJ in the USAR with an effective date and date of rank of 14 April 1996.

25.  A memorandum from the National Guard Bureau, dated 24 July 2013, stated the applicant's enlisted service in the Wyoming ARNG was voided based on the ABCMR's recommendation.  The ARNG Financial Services Branch reviewed the ABCMR Record of Proceedings and determined that no collection action would be taken to recoup pay and allowances spanning the applicant's service in the Wyoming ARNG.

26.  The applicant's ARPC Form 249-E, dated 16 July 2013, indicates his Retired Reserve and ARNG enlisted service was voided.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he served continuously as a commissioned officer in the USAR and is entitled to adjustment of his pay and allowances at the pay grade O-4 rate was carefully considered and appears to have merit.

2.  The applicant transferred to the Retired Reserve effective 3 December 1996 based on his non-selection for promotion to MAJ.  He enlisted in the Wyoming ARNG in the rank/pay grade of staff sergeant/E-6 on 11 December 1998 and reenlisted on 31 May 2003.

3.  On 6 November 2007, the ABCMR recommended correction of the applicant's records to show he was granted a waiver of the military educational requirement for consideration for promotion to MAJ under the 1995 and possibly 1996-year criteria under duly-constituted SSB's.  On 24 February 2010, HRC notified the applicant that he was selected for promotion to MAJ in the USAR under the 1996-year criteria by an SSB which convened on 22 September 2009.  HRC Orders B-03-001492, dated 17 March 2010, promoted the applicant to the rank of MAJ in the USAR with an effective date and date of rank of 14 April 1996.

4.  As a result of his selection for promotion to MAJ in the USAR with an effective date and date of rank of 14 April 1996, his transfer to the Retired Reserve in the rank of CPT effective 3 December 1996 and subsequent enlistment in the Wyoming ARNG were voided.  His subsequent reappointment in the USAR in the rank of CPT was also voided.  Voidance of the applicant's enlisted service in the Wyoming ARNG and possibly his commissioned USAR service in the rank of CPT has caused an unintended financial liability.  

5.  Therefore, it would be appropriate to correct his records to adjust his pay for this period by paying him at the rate of pay grade O-4 from the effective date of his promotion to MAJ of 14 April 1996, less payment already received for service he performed as a USAR CPT and as an enlisted member of the Wyoming ARNG.

6.  In view of the foregoing, the applicant's records should be corrected as recommended below.



BOARD VOTE:

___X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing he was transferred from the USAR Individual Ready Reserve to the USAR Selected Reserve in the rank of MAJ effective 11 December 1998 (the date he actually entered the ARNG Selected Reserve as an enlisted Soldier); and

	b.  paying him the difference at the rate of pay grade O-4 for this qualifying service from the effective date of his promotion to MAJ of 14 April 1996, less payment already received for service he performed as a USAR CPT and as an enlisted member of the Wyoming ARNG.



      _______ _   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)                                         AR20130019739



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ABCMR Record of Proceedings (cont)                                         AR20130019739



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