MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 December 1998  
	DOCKET NUMBER:   AC98-08406

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland  		Analyst	

The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge from the USAR be voided and that he be given promotion reconsideration to the rank of captain.

APPLICANT STATES:  That he was never accessed into the Dual Component Program and his education requirement was never waived which led to his being nonselected for promotion and subsequently discharged.  He further states that he was serving on active duty overseas in Germany and in support of Operation Desert Storm and he never received notification of his promotion nonselections, despite his having sent an address correction.  In support of his application he submits an unofficial copy of his college transcript.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the New Mexico Army National Guard (NMARNG) on 29 March 1980 for a period of 6 years.

On 13 June 1983 he was released from the ROTC Control Group for enlistment in the NMARNG ROTC Simultaneous Membership Program.

On 13 December 1984 he was honorably discharged in the pay grade of E-5 for the purpose of accepting an appointment as a commissioned officer.

He accepted a USAR commission as a USAR second lieutenant (2LT) on 14 December 1984 under the Early USAR ROTC Nonscholarship Program.  At the time of his commissioning he was notified of his responsibility to complete his civilian and military education requirements despite his early commissioning.  He was also informed that he could complete his military education requirements through correspondence.

On 12 January 1985 he was transferred from the USAR to the NMARNG under the Early Commissioning Program and was informed of his responsibility to keep his records updated.

He was released from the NMARNG on 15 July 1985 for what appears to be his failure to attend drills, and was transferred to the USAR Control Group (Annual Training).  He was again notified of his responsibility to keep his records updated.

On 12 November 1986, per the applicant’s request, the applicant was granted a conditional release from the USAR for a period of 6 months for the purpose of enlisting in the Regular Army.  He was informed that if his enlistment was approved he was to provide a copy of his enlistment contract in the enclosed envelope and that he would be discharged from the USAR one day prior to his enlistment.

The applicant enlisted in the Regular Army on 6 January 1987 for a period of 4 years in the pay grade of E-3.  His enlistment contract indicated that he would retain his USAR commission as a 2LT in accordance with Army Regulation    601-210, table 3-3, Rule F. 

The applicant was promoted to the rank of first lieutenant (1LT) in the USAR on 8 February 1989 with a date of rank of 13 December 1987.

On 1 February 1991, the Army Reserve Personnel Center (ARPERCEN) notified the applicant that he had been nonselected for promotion to the rank of captain in the USAR.  He received his second notification of nonselection on or about 10 February 1992.  The notification letter was addressed to his home address in New Mexico.

On 8 May 1992 he was honorably discharged from the USAR in the rank of first lieutenant.

On 3 June 1993, he was honorably discharged from the Regular Army in the pay grade of E-6.  He had served 6 years, 4 months, and 28 days of total active service.  The applicant immediately enlisted in the NMARNG.  The applicant’s DD Form 214 issued at the time of his discharge also shows the address of his nearest relative as the address of record maintained by the ARPERCEN at the time of his discharge from the USAR.

A review of the available records fails to show that the applicant ever completed his officer basic course after being commissioned as a 2LT.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Total Army Personnel Command (formerly known as ARPERCEN) which opined, in effect, that because the applicant did not enlist in the Regular Army through the Delayed Entry Program, he retained his commission and the responsibility to complete his education requirements to be eligible for promotion.  It further opined that he failed to complete his education requirements for promotion and was thus properly discharged from the USAR.  Accordingly, there was no basis to revoke his discharge or grant him promotion reconsideration.

Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the USAR.  It states, in pertinent part, that Department of the Army Standby Advisory Boards (STAB) are formed to prevent an injustice to officers or former officers who were eligible for promotion but whose records were, through error, not submitted to a promotion selection board for consideration or contained a material error when reviewed by the board.  In determining that a material error caused an officer’s nonselection by a promotion board, it must first be determined that one or more evaluation reports that should have been seen by a board were missing from an officer’s OMPF, that the officer’s civilian or military education was incorrect, or that the officer was awarded a Silver Star or higher that was missing from the officer’s OMPF.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  It appears that the applicant’s records were properly reviewed by the appropriate promotion selection boards and in the absence of evidence to the contrary, there is no basis to grant him promotion reconsideration or reinstatement to the USAR. 

3.  The Board notes that at the time the applicant requested to be released from the USAR, he made no mention of his desire to retain his USAR commission or to maintain dual status.  Nevertheless, he  was informed at the time of his enlistment into the Regular Army that he would retain his USAR commission and he was subsequently promoted to the rank of 1LT.  Consequently, the requirement to keep the ARPERCEN informed of his status and to maintain his qualifications as a USAR officer were still the responsibility of the applicant.

4.  The evidence submitted by the applicant as well as the evidence of record indicates that the applicant failed in his responsibility to maintain his USAR commission while serving on active duty.  The applicant had sufficient time during his 6 plus years on active duty to resolve any questions or problems in regards to his USAR commission that he may have had and yet failed to do so. As such, this does not constitute an error or injustice on the part of the Department.

5.  The applicant’s contentions in regards to his not being notified of his promotion or discharge appears to be without merit.  The applicant was notified on multiple occasions that he bore the responsibility for maintaining a current mailing address and all evidence indicates that the address he provided to the ARPERCEN was that of his nearest relative, which is also indicated on his DD Form 214.  Therefore, it must be presumed that he failed to keep his records current and also failed to maintain interest in his status as a USAR officer. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__emw __  __lem __  __cs ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-08406	
SUFFIX		
RECON		
DATE BOARDED	1998/12/16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/05/08	
DISCHARGE AUTHORITY	AR135-175	
DISCHARGE REASON	2xx nonselect usar cpt	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  110.00		
2.  110.03		
3.  131.10		
4.		
5.		
6.