MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            30 June 1999      
	DOCKET NUMBER:   AR1999023839

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		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:  In effect, reinstatement in the Army Reserve with the restoration of all rights, privileges, and property. 

APPLICANT STATES:  That he never knowingly resigned his commission.  He had been in the Army Reserve Control Group (Reinforcement), IRR, since his honorable discharge in 1993.  

In a letter to a member of congress (MC) the applicant states that he has completed his physical examination and corresponded with personnel of his branch at the Army Reserve Personnel Command in St. Louis in order to reenter the Army Reserve with the rank of Captain; however, he has been informed that records show that he resigned his commission.  This is erroneous, and up until then he was close to being assigned to a Reserve unit.  He states that he would like to serve the Army again with his skills and expertise as a nurse practitioner.   

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

The applicant was appointed a second lieutenant in the Army Reserve on          12 May 1989 and entered on active duty on 18 July 1989.  He was promoted to first lieutenant on 18 July 1991.

On 12 March 1992 the Total Army Personnel Command notified the applicant that an Army Medical Department voluntary indefinite board had not selected him for retention and that he would have to be released from active duty.  He was released on 17 July 1993 and transferred to the Army Reserve Control Group (Reinforcement).  He had 4 years of service.  His specialty was that of a surgical nurse, 66H.  

On 2 May 1998 the Army Reserve Personnel Command forwarded a memorandum to the applicant at an address in Laurel, Maryland, notifying him that, by law, soldiers are required to undergo a military physical examination at least once every five years, and that he was past due for a physical examination, and unless he had fulfilled his statutory or contractual obligation and wanted to be discharged he was required to take a physical examination.  Failure to do so could result in his elimination.  He was informed to indicate his response to the notification by checking, signing, and dating, the appropriate block on the reverse of the notice.  The options offered on the reverse of the notice included a request to be transferred to the Retired Reserve, a request that an order be published so that he could obtain a military physical examination, and the option which the applicant checked:  “As a Reserve Officer in the USAR, who has completed my statutory or contractual obligation, I hereby tender my unqualified resignation and desire an honorable discharge from the USAR.”

The applicant also checked the block showing an address correction, with his new address being 1314 Fishing Creek, Oyster Harbor, Annapolis, MD  21403. 
He did not sign or date his response to the notification.

On 20 May 1998 a military personnel clerk at St. Louis forwarded his request for resignation, along with three other requests, to the Chief of the Health Services Personnel Management Directorate for a recommendation regarding approval or disapproval.  On 11 June 1998 the applicant’s personnel management officer notified the aforementioned individual that he concurred with the applicant’s request to resign his commission.

The applicant was discharged from the Army Reserve on 17 June 1998.  The order discharging him was forwarded to the address that he furnished when he tendered his resignation.

Information extracted from the applicant’s career management file shows: 

•	In December 1996 the applicant had claimed to have requested a conditional resignation three times since August 1996 and threatened congressional help.  That extract indicates a problem with the signature on his letter and that on his DD Form 214; there was no record of his request.
•	In April 1997 a request for interservice transfer received; branch concurred, and forwarded.
•	During May and June 1998 received and concurred in request for resignation.
•	In September 1998 AMEDD recruiter indicated that she had a position for applicant in a TPU, but was not allowed to process 66H, and wanted help in placing applicant.  Recruiter was informed that the applicant had been discharged per his request.
•	A 30 September 1998 entry indicates that the applicant claimed that he did not request an unqualified resignation, but was trying to get assigned to a TPU.  He found out he had been selected for promotion, but needed a physical examination, which was true.  
•	Applicant informed on 30 September that he would have to petition this Board in order to be reinstated in the Army Reserve. 

Information from the applicant’s management officer on 23 July 1999 revealed that the applicant had been selected for promotion, but the results of the promotion board had not been received until July 1998.  That officer also stated that he had talked with the applicant about two weeks ago, and at that time he (the applicant) stated that he was going to enlist in the Navy Reserve.

Army Regulation 135-175 provides policy, criteria, and procedures for the separation of Army Reserve officers.  Paragraph 2-12 authorizes involuntary separation of an officer due to moral or professional dereliction, to include intentional neglect or failure to have the medical examination required by Army Regulation 140-120.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The notification to the applicant was forwarded to him on 2 May 1998 at his address in Laurel, Maryland.  He tendered his unqualified resignation, requested an honorable discharge, and submitted information concerning his new address in Annapolis, Maryland.

2.  His request, albeit without his signature, was processed and approved at St. Louis.  The order discharging him was forwarded to the Annapolis address he furnished.  

3.  In order for the Personnel Command at St. Louis to process his request and to forward the discharge order to the applicant at the Annapolis address, he would have had to return his response to St. Louis with that information.  He could have done nothing, in which case he could have been processed for involuntary separation under the provisions of Army Regulation 135-175, for intentional neglect or failure to have a medical examination.  Although the applicant states that he did not knowingly resign his commission, he has not stated that he had requested an order in order to obtain a military physical examination, the only other option available to him had he wanted to remain in the Ready Reserve.  His response clearly shows that he wanted to resign his commission and be discharged.   

4.  The Board notes that the results of the Captain promotion board were known in July 1998, after the applicant was discharged.  The Board believes that the applicant did intend to resign, that that was his purpose in completing the response to the notification forwarded to him by the Army Reserve Command at St. Louis, and notwithstanding the lack of a signature on his response, he did indeed submit his request for an unqualified resignation and an honorable discharge.  Consequently, his discharge from the Army Reserve on                    17 June 1998 is considered correct and valid, and the applicant’s contention that he never knowingly resigned his commission is not accepted.  

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

7.  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

___gdp__  __aao___  ___jpi__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023839	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990630	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  110.03		
2.		
3.		
4.		
5.		
6.