MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 July 1999                  
	DOCKET NUMBER:   AR1999026503

	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. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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:  Expunction of the vacation of his previous Reserve commission as a second lieutenant and reinstatement to his previous Reserve commission status, and promotion to first lieutenant, captain and major in the Reserve.

APPLICANT STATES:  His Reserve commission was unfairly vacated upon his enlistment in 1987 in the DEP (Delayed Enlistment/Entry Program).  A 4 day enlistment period in the DEP should not deprive him of his commission.  Had he been advised and had he known of the loss of the commission upon his enlistment, he would not have enlisted.  The item in his enlistment contract (DA Form 3286) concerning loss of commission was marked N/A (not applicable) by his recruiter, and he was assured by the recruiter he would not lose the commission.

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

The applicant served as an enlisted man in the Army National Guard (ARNG) and Reserve from 11 May 1981 to 21 December 1984, when he was discharged to accept a Reserve commission.

Effective 22 December 1984 he was appointed as a Reserve second lieutenant in the early commissioning program from ROTC.  His promotion eligibility date for first lieutenant was 21 December 1987, based upon completion of 3 years of commissioned service.

Effective 12 January 1985 he was voluntarily transferred to the Ohio ARNG.

On 1 July 1987 he tendered his concurrent resignation from the ARNG and Reserve of the Army effective 1 July 1987.  He stated he did not have a remaining Reserve commitment and he had fulfilled his 6 year contract with the Ohio ARNG on 11 May 1987.

He was separated from the Ohio ARNG and the Reserve effective 15 July 1987.

On 16 July 1987 he was enlisted into the Reserve (DEP) for 4 years.

On 20 July 1987 he was enlisted into the Regular Army for 4 years in pay grade E-3 and military occupational specialty 73D (accounting specialist) and station of choice.

His enlistment contract shows “N/A” concerning his statement of understanding for automatic vacation of his Reserve commission for enlistment into the DEP.  He signed the statement of understanding at enlistment.

During his Regular Army enlisted service he did not hold a Reserve commission and he was not evaluated as a Reserve officer.  He did not complete an officer advanced course or the combined arms and services staff school (CAS3).

He was honorably discharged from the Regular Army on 19 May 1993 based on the expiration of his term of service.  He was discharged in pay grade E-5 with 
5 years and 10 months of service for this period.

Army Regulation 135-175, in effect at the time, provides the policy, criteria, and procedures for the separation of officers of the National Guard and Reserve.  It provides the conditions under which an officer of the Reserve automatically vacates his appointment as a Reserve of the Army because of entry into another military status which is incompatible with the Reserve status at the time of such entry.  It specifies that the appointment as a Reserve officer of the Army is vacated effective the date immediately preceding the date the officer enlists in the new military status, including the DEP.

The regulation also provides for voluntary resignation from the National Guard and Reserve.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation in effect at the time, specifies that 3 years of time in the lower grade is required for promotion to first lieutenant, without review by a selection board, and 4 years and 7 years is required for promotion to captain and major, respectively, with a selection board review.  Also, an officer advanced course and CAS3 is required for promotion to major.  It also shows that promotion is not automatic based on qualifications alone, but includes a competitive process of a selection board determining an individual's potential and ability to perform at the higher grade.

The regulations governing the Correction Board specify that individual records are presumed correct, i.e., regularity is presumed, and that it is the applicant’s burden to show otherwise.

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.  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.

2.  The applicant is not entitled to removal of a vacation of his commission or reinstatement to his previous Reserve commissioned status.  He has not shown error, injustice or inequity for the relief he is requesting.  The applicant’s commission was not vacated.  He resigned his commission.  It was a voluntary decision at the time, not required, and he should not be allowed to change his mind at this late date.

3.  Notwithstanding his contentions that it was the recruiter’s fault that he vacated his Reserve commission upon his enlistment, he has not satisfactorily shown the vacation of the commission was applicable to him.  He tendered his concurrent resignation from the ARNG and Reserve of the Army effective 1 July 1987, prior to the enlistment.  He signed the enlistment documents and the notation “N/A” appears to be the correct entry since he did not hold a Reserve commission at the time of enlistment.

4.  The applicant’s contention of an unfair vacation of commission in 1987 is noted; however, it is not sufficiently supported by his records or his application.  His records clearly show he resigned his commission prior to enlistment.  This is why his commission was terminated.  It was not vacated based on the enlistment into the DEP as he claims.

5.  The Board further notes that to grant reinstatement of the applicant’s commission would not fully provide what he has requested.  Without a record of performance and performance evaluation and the required military education, the applicant could not have been adequately evaluated or selected for promotion or retention in that status.

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

chl______  slp_____  clg______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026503	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 July 29	
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.	110.00	
2.		
3.		
4.		
5.		
6.