PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 March 2001                   
	DOCKET NUMBER:   AR2000048739

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		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 that his records be corrected to show he was promoted to captain in the Individual Ready Reserve (IRR) prior to his separation from the Army National Guard.

3.  The applicant states that he could have been promoted to captain the day he was transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement).  However, the orders published by the Virginia Army National Guard (VAARNG) were incorrect in that they did not transfer him to the IRR.  He never received the orders until after he enlisted so he did not know they were wrong.

4.  The applicant’s military records show that he was commissioned on 13 May 1989 and entered the VAARNG on 17 August 1989.  He was promoted to first lieutenant on 23 May 1992.  

5.  On 1 March 1996, the applicant was notified that he had been selected for promotion to captain by the Reserve promotion board which adjourned on         15 December 1995 with a promotion eligibility date of 22 May 1996.  On 6 August 1996, he requested to decline the promotion for a 2-year period.  He informed his chain of command that in October 1996 he would resign his commission and enlist in the Regular Army.

6.  The applicant’s Report of Separation and Record of Service, NGB Form 22, and his separation orders show that he was discharged from the VAARNG on     2 October 1996 and transferred to the U. S. Army Recruiting Battalion, Tampa, FL.  He enlisted in the Regular Army on 3 October 1996.

7.  On 2 August 2000, the applicant’s separation orders were amended to show he was discharged on 1 October 1996 and transferred to the USAR Control Group (Reinforcement).  On 3 August 2000, his NGB Form 22 was corrected to read the same.

8.  It appears that the applicant was never discharged from the USAR upon his enlistment in the Regular Army.

9.  In the processing of this case, an advisory opinion was obtained from the Promotion and Notifications Branch, Office of Promotions, Reserve Components, U. S. Total Army Personnel Command.  That office recommended disapproval of the applicant’s request.  That office noted that had the applicant informed that office that he transferred to the IRR prior to his vacating his commission by enlisting in the Regular Army, he would have been given a date of rank of            
1 October 1996, the day he went into the IRR.  However, by vacating his commission and enlisting before the promotion was finalized, he missed his 

window of opportunity to get promoted.  According to Army Regulation 135-155, paragraph 3-13a(2)h, an officer will be removed from the selection list when placed on active duty prior to the promotion being finalized.  Paragraph 4-10 states that the officer must be in an active reserve status.

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  The applicant was not officially transferred to the IRR until his NGB Form 22 and his separation orders were amended, well after his enlistment in the Regular Army.  Therefore, the Office of Promotions, Reserve Components properly removed him from the selection list when he enlisted in the Regular Army (i. e., when he was no longer in an active reserve status).  However, as a matter of equity the Board concludes that the records should be corrected to show that he was promoted to captain on 1 October 1996.  He could have been promoted on this date, the effective date he transferred to the IRR, except that through no fault of his own his NGB Form 22 and his separation orders were not corrected until August 2000.  If he should leave active duty and reenter the USAR in a commissioned status, it would be to the Army’s benefit to utilize him in the rank of captain.

2.  If appropriate, the applicant’s records should also be corrected to show that he was discharged from the USAR prior to his enlistment in the Regular Army.

3.  In view of the foregoing and notwithstanding the advisory opinion, 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 by reinstating the applicant to the Reserve captain promotion list which adjourned on 15 December 1995 and by promoting him to captain effective          1 October 1996.

2.  That, if appropriate, the applicant be discharged from the USAR prior to his    3 October 1996 enlistment in the Regular Army.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fne___  __rjw___  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048739	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.02	
2.		
3.		
4.		
5.		
6.