PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  30 January 2001
	DOCKET NUMBER:  AR2000046603

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Ms. Brenda F. Hirschi		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 that his enlistment contract be voided, he be promoted as a Reserve Commissioned officer and reinstated to his previous Reserve status.

3.  The applicant states the Army Board for Correction of Military Records (ABCMR) directed that he be promoted to captain.  However he enlisted in the Army Reserve between the time he was separated and ABCMR’s action was directed.  He submits a copy of his discharge orders dated 15 December 1998, enlistment contract dated 28 January 1999, Report of Proceedings for the Reserve Components Promotion Advisory Board dated 2 April 1999, ABCMR Proceedings dated 23 November 1999, promotion memorandum dated 30 May 2000, promotion status memorandum dated 1 June 2000, orders dated 7 June 2000 and 6 July 2000, and a promotion memorandum dated 7 July 2000 in support of his request.

4.  The applicant’s military records show that he was considered and not selected for promotion to captain by the 1996 and 1997 Reserve Components Selection Boards (RCSB’s).  Based on his non-selections he was subsequently discharged on 16 January 1999.

5.  He enlisted in the Army Reserve as a sergeant E-5 effective 28 January 1999.

6.  On 29 March 1999, he was selected for promotion to captain by a Departmental Reserve Components Advisory Board under 1996 criteria.

7.  On 23 November 1999, the ABCMR directed that the applicant’s records be corrected to show he was selected for promotion to captain with a promotion eligibility date of 22 May 1996 and that his discharge be voided and of no force or effect, and that all documents related to his now voided discharge be expunged from his official military personnel records.

8.  The applicant was advised to apply to the ABCMR for voiding his enlistment contract.  He was further advised that if he is unable to locate a captain position by the time the ABCMR decision is made, he may be transferred to the Individual Ready Reserve for promotion purposes.

9.  Title 10, United States Code, Section 14502 (e) (3) specifies that if a report of an SSB, as approved by the President, recommends for promotion to the next higher grade a former officer whose name was referred to it for consideration, the 

Secretary concerned may act to correct the military records of the former officer to correct an error or injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

10.  Title 10, United States Code, Section 1552 specifies that the Secretary of a military department may correct any military records of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.

CONCLUSIONS:

1.  The applicant is entitled to expunction of his enlistment contract, with no force or effect, and further correction of his military records to show he was promoted to captain effective 22 May 1996, with entitlement to back pay and allowances.

2.  It is noted the applicant’s enlistment in the Army Reserve effective 28 January 1999 should be voided and his previous status as a captain must be reinstated in accordance with the previous ABCMR determination.

3.  It is further noted that any pay and allowances received by the applicant as an enlisted man for the period of the now voided enlistment will be offset based on this records correction.

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

RECOMMENDATION:

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

a.  by voiding the discharge of the individual concerned dated 16 January 1999 with reinstatement to his previous Reserve commissioned status;

	b.  by voiding his enlistment in the USAR dated 28 January 1999 with no force or effect;

	c.  by showing he was promoted to captain effective 22 May 1996, with entitlement to back pay and allowances; and

d.  by offsetting the pay received by the applicant in his now voided enlisted status.

BOARD VOTE:  

__ao___  ___to___  __bh______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Arthur A. Omartian_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000046603	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010130	
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.		
2.		
3.		
4.		
5.		
6.