PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           12 September 2000                  
	DOCKET NUMBER:   AR1999026867

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

	Mr. Carl W. S. Chun		Director	
	M r. W. W. Osborn Jr.  		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn 		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  Applicant requests reconsideration of his previous application to correct his military records by considering him for promotion under the criteria for the August 1997 position vacancy board.

3.  The applicant contends, in effect, denial of his case based upon the timing of submission of the selection lists for confirmation is unjust.  Furthermore, he contends that, if he had been selected by the unit vacancy board his name would not have been before the Reserve Components Selection Board (RCSB) mandatory board.  He feels that he is being punished for voluntarily accepting mobilization and that this is occurring even though he and others were assured that they would suffer no adverse consequences.  The commanding general of the 335th Theater Signal Command again supports the applicant’s request and he is joined by a former Commander Army Reserve Command (USARC)/Chief  Army Reserve (CAR). 

4.  The applicant’s contention and the general’s letter are new evidence and new argument that require Board consideration. The Memorandum of Consideration of the Board’s 8 April 1999 review of his request is incorporated herein by reference as if wholly set forth.

5.  The Commanding General, 335th Theater Signal Command writes that the applicant was the only candidate for the position.  He believes that to deny relief based upon the timing of the confirmation referrals is an obvious injustice and that the position set forth in the previous advisory opinion is “incredibly non-supportive of this Tier 1A unit’s readiness.”  He notes that the unit has been trying to fill this position since 1996. 

6.  The former Commander, USARC/CAR, a retired major general, writes in support of the applicant’s request that it is poor policy to punish Reservists for volunteering for mobilization.  He recommends that the Board promote the applicant.  

7.  During the processing of this case a legal review was obtained from the Army Review Boards Agency’s (ARBA) Legal Advisor recommends that the applicant be considered for promotion under the criteria for the 1997 position vacancy board.

8.  The applicant was furnished a copy of the legal review and concurred with the conclusions and recommendations.

CONCLUSIONS:

1.  An admitted error occurred in that the applicant’s promotion packet was not considered for promotion by the position vacancy board.  Continued denial of 
relief solely because of the timing of the confirmation referrals is unjust.  It also perpetuates the perception that the applicant suffered an injustice because he accepted voluntary mobilization orders. 

2.  This Board does not normally recommend promotion of an individual who has not been selected by a duly appointed promotion board.  However, there is no regulatory provision for reconsideration of position vacancy candidates who were erroneously nonconsidered.  Therefore, in view of all the circumstances of this case and as an exception to policy, the Board concludes that the applicant’s promotion package should be considered by the next available position vacancy board and that, if selected, he should be promoted as if selected in 1997.

3.  The applicant’s date of rank and effective date of rank should be adjusted 
to 18 August 1997 and should receive pay adjustment for any duty performed.

4.  If selected by the position vacancy board, the applicant’s name should be removed from the considered/nonselected lists for the 1997 and any subsequent mandatory Reserve Components Selection Board.   

5.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:  
a.  by considering him for promotion by the next available position vacancy board:

b.  if selected, by removing his name from the considered/nonselected lists for the 1997 and any subsequent RCSB and promoting him to colonel with an effective date of 18 August 1997, authorizing any back pay this promotion will necessitate.  

BOARD VOTE:

__CMF__  __FE____  ___CJS_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Calvin M. Fowler___________________
		        CHAIRPERSON

	AR1999026867	
		
RECON		
DATE BOARDED	020000912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
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