PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  26 October 2000
	DOCKET NUMBER:  AR2000043383

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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.  The applicant requests reinstatement in the United States Army Inactive Ready Reserve (USAR Control Group Inactive).

3.  The applicant states that after being hired in the United States Secret Service in 1993, it was requested by that agency that he be removed from the Ready Reserve.  Due to this request he was unable to complete his military education requirements for promotion to major.  If reinstated in the Reserve, he will pursue all efforts to complete this requirement.  He submits a detailed letter with attachments in support of his request.  He also provides evidence that he is no longer a key Federal employee.

4.  The applicant’s military records show that he was appointed in the Puerto Rico Army National Guard (PR ARNG) from ROTC as a second lieutenant effective 12 June 1981.

5.  He was promoted to first lieutenant effective 11 June 1984.  He graduated from the Military Police Officer Advanced Course (OAC) effective 22 July 1986 and was promoted to captain effective 3 December 1988.  Based on the 7 years required time in grade for promotion to major, his promotion eligibility date was 2 December 1995.

6.  He completed Phase I of the Combined Arms and Service Staff School (CAS3) in November 1992.  At the time of his application he had not completed Phase II of CAS3.

7.  He was transferred to the Inactive National Guard effective 1 May 1993 for a period of 1 year.  He was honorably separated from the PR ARNG effective 1 June 1994 and transferred to the USAR Control Group (Reinforcement).

8.  A Memorandum dated 9 February 1994, from the Director, United States Secret Service to the applicant’s commander, requested that he be removed from the Ready Reserve because his civilian position as a special agent since 19 April 1993 is vital to the Nation’s defense effort and he could not be mobilized with the military services in an emergency.

9.  He was considered and not selected for promotion to major by the 1996 and 1997 Reserve Components Selection Boards (RCSB’s).  He was not qualified for promotion based on the lack of the required military education.

10.  A review of his records reveal he had not completed the military education requirement of the CAS3 prior to the 1996 and 1997 RCSB’s.

11.  He was honorably discharged from the Reserve effective 2 March 1998, based on his two non-selections.

12.  The applicant provides documentation showing he was transferred from the U. S. Secret Service effective 27 August 2000 to a position with the Department of Commerce, National Oceanic and Atmospheric Administration and no longer serving in the status as a key Federal employee.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that in order to be qualified for promotion to major an individual must have completed 7 years of time in grade as a captain and completion of an OAC and CAS3 on or before the convening date of the respective promotion board; and that individuals twice not selected for promotion to major will be transferred to the Retired Reserve if they are eligible and request such transfer, retained in an active Reserve status when more than 18 but less than 20 qualifying years of service have been completed, or discharged.  It also specifies that after return to an active status, individuals are delayed of promotion consideration for a period of 1 year.  It further specifies that inactive service is not creditable for promotion.

14.  Army Regulation 135-175 prescribes the policies and procedures for the separation of Reserve officers.  This regulation provides that individuals twice not selected for promotion to captain will be transferred to the Retired Reserve if they are eligible and request such transfer, retained in the Ready Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

15.  Army Regulation 135-133 prescribes the responsibility and procedures for providing a uniform system for administering and maintaining the Ready Reserve qualification records.  This regulation provides that a key employee is any Federal employee who occupies a key position that cannot be vacated during a national emergency or mobilization without seriously impairing the capability of the parent Federal agency or office to function effectively.  All Ready Reserve soldiers occupying key positions will be transferred from the Ready Reserve to the Standby Reserve, the Retired Reserve if eligible, and so requested, or discharged.  This regulation further specifies that when the reason for the transfer no longer exists, a soldier may, on request, be considered for return to the Ready Reserve.

16.  Army Regulation 140-10, prescribes the policies and procedures to assign, attach, detail, remove or transfer Army Reserve soldiers.  This regulation provides that the Standby Reserve consists of soldiers who maintain their military affiliation without being in the Ready or Retired Reserve.  Soldiers assigned to the Standby Reserve will be placed in one of the following categories:  Active Status List or Inactive Status List.  The regulation also provides that soldiers on the Inactive Status List may not train for pay or retirement points and are not eligible for promotion.  The Inactive Status List generally consists of soldiers assigned under the key employee conditions.
CONCLUSIONS:

1.  Error or injustice is not readily apparent in this case.  Based on the circumstances; however, the applicant’s unit was in receipt of a Key Employee Determination memorandum, which requested his removal from the Ready Reserve.  This was not properly accomplished.

2.  The Boards notes that due to an administrative error, the applicant was transferred to the Individual Ready Reserve and not the Control Group Standby (Inactive) through no fault of his own.

3.  The Board further notes that the 1996 and 1997 selection boards erroneously considered the applicant.  Based on his erroneous considerations these non-selections should now be voided.

4.  It is also noted that sufficient documentation has been submitted by the applicant showing he is no longer a key Federal employee with the United States Secret Service and therefore eligible for transfer to the Individual Ready Reserve within 120 days of approval of the Army Correction Board action.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by voiding the transfer of the individual concerned to the Individual Ready Reserve effective 1 June 1994;

b.  by showing the individual concerned was transferred to the Control Group Standby (Inactive) effective 1 June 1994;

c.  by voiding his non-selections by the 1996 and 1997 RCSB’s;

d.  by voiding the discharge of the individual concerned effective 
2 March 1998; and

	   e.  that all documents related to his now-voided non-selections for promotion and discharge be expunged from his records.

2.  That, following administrative implementation of the foregoing, he be transferred to the Individual Ready Reserve effective within 120 days of finalization of this Board action.

BOARD VOTE:  

__md___  ___ao__  __wp____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Melinda M. Darby___
		        CHAIRPERSON

INDEX

CASE ID	AR2000043383	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.10	
2.	135.01	
3.		
4.		
5.		
6.