PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  4 June 2002
	DOCKET NUMBER:  AR2001056808

	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	
	Mr. Victor D. Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Arthur A. Omartian		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, through counsel, requests acceptance into the Active Guard/Reserve (AGR) program in the rank of captain (CPT), placement on active duty in the AGR program with an effective date not later than 10 January 1999 in an appropriate position as a CPT, void the applicant's enlistment in the Regular Army in an enlisted status, void his second non-selection for major, allow consideration for Army Reserve major by the appropriate Special Selection Boards (SSBs) under the 1999 and 2000 criteria, and provide all appropriate differences in pay as may arise from the above corrections.

3.  Counsel states that the applicant made application for entry into the AGR program with the understanding that a waiver for years of service was required.  The applicant was later notified in writing that he had been recommended for entrance into the AGR program and his name was placed on the Order of Merit List (OML) which would remain in effect until 10 January 1999.  Counsel contends that Army Regulation (AR) 140-30, paragraph 3-3g reaffirms that the applicant's placement on the OML is inviolate, with changes subject to a few narrow exceptions; when the soldier is ordered to active duty or when their name is voluntarily or involuntarily removed from the list.  Counsel contends that the same declaration appears in AR 135-18 and that no other policy or criteria exists to affect the applicant's placement on the OML during the 1-year period it remains in effect.

4.  Counsel further contends that AR 135-18 provides the Chief, Army Reserve (CAR) waiver approval authority in the applicant's case and, since the CAR approved the applicant's placement on the OML, this amounted to waiver approval by the CAR.  When the applicant was offered and accepted a engineer position for a captain he was told that the offer would have to be confirmed because of his waiver requirement.  The offer was later withdrawn and the applicant informed that his waiver request would not be processed until others on the OML without a waiver requirement were called.  Counsel recounts that the applicant was notified in June 1998 that his waiver would be processed for a branch immaterial position.  The waiver request was denied in August 1998.  In September 1998 the applicant was notified of his second non-selection for promotion to major and scheduled for separation not later than 1 April 1999.

5.  Effective with the applicant's second non-selection for promotion he was disqualified for entry in the AGR program.  He was released from active duty on 1 April 1999 and reverted to an active duty enlisted status in the pay grade of E-7 on 2 April 1999.  Counsel contends that AGR program officials acted without authority when the applicant was arbitrarily placed lower on the OML because he required a waiver.  The applicant's original ranking was a property right entitling him to the highest priority in assignment opportunities.

6.  The applicant’s military records show that he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 20 February 1987, in the Corps of Engineers, with 3 years and 13 days prior active duty enlisted service.  He completed the officer advanced course in January 1991, and was promoted to the rank of CPT effective 1 July 1991.  He completed the Combined Arms and Services Staff School effective 14 May 1993.

7.  He was considered, but not selected for promotion to major on the Active Duty List (ADL) in September 1997.  The applicant applied for entry in the AGR Program on 30 September 1997.  He requested that the following qualification be waived for entry into the AGR Program per table 2-2, of Army Regulation (AR) 135-18:  "Rule B:  Is unable to serve at least 5 years AD status prior to achieving 18 years Active Federal Service (AFS)."  He also stated that he understood that he would not be accessed into the AGR Program unless he was selected for entrance and the request for waiver was approved.

8.  On 10 January 1998, a letter was prepared by the Director, Full Time Support Management Directorate (FTSMD), ARPERCEN, which stated that the CAR approved the results of the now titled AGR Entrance Qualification Board 
(AGR-EQB).  The board recommended the applicant for entrance and placed his name on the OML.  The OML was valid for 1-year from the release date from OCAR.  The letter also stated that the applicant would be contacted when a position became available.  If the applicant was not contacted for entry into the AGR Program during that period, but still desired to participate, he would have to reapply for consideration by a subsequent board.

9.  Counsel relates that a staff member of the AGR Accession Team contacted the applicant by telephone and offered him an engineer position that was authorized for fill by a major.  He immediately accepted the offer and the staff member said she would call him back after she discussed with her supervisor the applicant's need for a waiver of Active Federal Service (AFS).  The applicant was contacted later and told that officers requiring a waiver had to wait until all other equally qualified officers who did not need a waiver were offered a position. The applicant was also told he could expect another offer for a position within a few months.

10.  Counsel relates that in June 1998 a recommendation for AFS waiver was processed for the applicant against a branch immaterial position.  That request for waiver was disapproved.

11  On 15 October 1998, the applicant was informed that he was not selected for promotion to major on the ADL a second time and must be separated from active duty.  The list was approved on 21 September 1998.  Effective 1 April 1999, the applicant was separated from active duty in the rank of captain with 14 years, 7 months, and 13 days total active duty.  Effective 2 April 1999, the applicant enlisted in the Regular Army for 4 years in the pay grade of E-7.  He continues to serve on active duty in a Regular Army enlisted status.

12.  In the processing of this case the Director, FTSMD provided a 21 June 2001 advisory opinion.  The opinion was based on regulations and the historical knowledge of personnel involved in the accession process from 1997 through the present.  Since application packets were normally retained for only 1 year, a packet for the applicant was not on file.  Paragraph 1-15 of AR 140-30, charges the Army Reserve Personnel Command (AR-PERSCOM) with administering the centralized AGR personnel management function.  The process of matching a soldier of the required specialty and needed qualifications to a specific position vacancy is a major part of this responsibility.  Paragraph 3-1 of the same regulation, provides that the objective of the program’s selection process is to select the best qualified soldiers to fill vacant positions and use them effectively to enhance the readiness and mobilization capabilities of the USAR.

13.  The opinion also stated that while the FTSMD is responsible for the matching/selecting of applicants to AGR positions, the sole purpose of the 
AGR-EQB held by the Personnel Actions and Services Directorate (PASD) of 
AR-PERSCOM is to provide AGR managers a list of individuals who meet the AGR program’s eligibility requirements.  Paragraph 2-7b of AR 135-18 states "validated applicants will be placed on a list of personnel eligible and available for consideration for order to AD."  Paragraph 3-3a(3) of AR 140-30, provides that the board’s responsibility is to provide "a recommendation for active duty."  The approved list is provided by OCAR for use by FTSMD selection officials.

14.  The opinion further stated that it was important to note that both regulatory references use phrases such as "may be selected" and "available for consideration" when discussing applicants recommended for hire in the AGR program.  Since all applicants on an officer recommended list are considered "best qualified," it is the AGR manager’s job to "select" the right soldier for a specific position vacancy.  For example, if a specific position calls for an engineer on the list who meets the qualifications and have specific experience, FTSMD would first look at engineers on the list who meet the qualifications and have this experience.  It would not benefit the Army to select an applicant without this experience just because he or she is number 1 or 2 on the list if the applicant who meets all specifications is number 10 on the list.

15.  The opinion goes on to state that all officers on the recommended list have an entitlement to consideration only.  Placement on a recommended list does not constitute approval of a waiver.  As to the case in point, AFS in excess of 13 years is a disqualifying factor in accordance with AR 135-18.  It is disqualifying for the fact that the Army desires soldiers who have the best qualifications and the longest opportunity for AGR service.  Even though an applicant with a waivable disqualification such as AFS in excess of 13 years is permitted to submit a request for waiver, it is just that "a request."  The AGR manager determines which applicant on the list best meets all of the requirements of a specific position vacancy.  If the applicant chosen is one who requires a waiver, FTSMD must fully justify and document that fact and submit a waiver request for OCAR consideration.

16.  The opinion stated, in summary, that the list produced by the AGR-EQB is a list of individuals recommended for active duty.  In no way is it a guarantee of selection.  AR 135-18 and AR 140-30 are consistent in establishing the fact that the list is advisory and is a tool used in the selection process by personnel tasked with the responsibility for AGR management.  The opinion recommended that the Board seek a further advisory opinion from OCAR as the proponent of AR 135-18 and 140-30.  The OCAR Policy Office could render an expert opinion regarding the implementation requirements and intent of all policies established by these two regulations.

17.  In a rebuttal of the advisory opinion provided by counsel, he states that the advisory opinion does not dispute that FTSMD personnel altered the applicant’s "best qualified" position by dropping him to the bottom of the OML simply based upon the waiver requirement.  This was fundamentally different than FTSMD giving (the applicant) proper, first or primary consideration for certain AGR duty before looking at his lower-ranked peers.  What occurred was that before the applicant got any look for a duty assignment, he was bumped from first consideration until after all his lower ranked peers got a look.  This does not mean the waiver issue was never at issue, but the applicant’s OML ranking permitted a right to be considered first for every AGR engineer duty.

18.  Counsel goes on to state "This manipulation of a FTSMD personnel "tool" alters the intent of the Accession "best qualified" OML by imposing a new FTSMD-created OML.  If a waiver or other unspecified factors not explicitly allowed by regulation, can reorder a "validated" OML, then an accession process would not have created a merit list based upon past duty performance, leadership, military and civilian schooling, achievement, and potential for service to the AGR program.  Some unnamed and unaccountable FTSMD personnel manager, not a member who sat on the DA Accession Board, independently decides that all these OML criteria are outweighed by applicant’s waiver requirement.  

This anonymous manager’s re-scoring eliminated the validated "strength" of the applicant’s packet, by bumping him to the bottom of the OML list---finding applicant no longer qualified for his high OML ranking."

19.  Counsel also states "This violates the intent of equality of treatment and opportunity for all qualified program participants."  In summary, he states that "nothing in the regulation permits a separate re-scoring of the OML to disqualify applicant from his highest ranking on the OML with its de facto "right of first refusal, or first consideration" once the strength of his packet was both ranked and approved."

20.  In the processing of this case an advisory was also provided by OCAR.  OCAR stated that the AGR selection board validated the applicant as an eligible and available officer for order to AD and placed him on the list.  The AGR selection board’s decision to place the applicant on the list, however, did not constitute an approval of the applicant’s waiver request or a presumption that it would be approved.  After a review of the available evidence, it appeared that Headquarters, Department of the Army (HQDA), Deputy Chief of Staff for Personnel (DCSPER) never approved the applicant’s waiver request and the applicant was never accessed into the AGR program.  This fact was clearly supported by the AGR Accession Team’s contact with the applicant on 6 February 1998.  The AGR Accession Team contacted the applicant to discuss an available AGR position; however, the team discovered that the applicant was disqualified from AGR entry according to regulation.  The team did not offer the position to the applicant; rather, it presumably contacted the next qualified officer on the OML to offer him/her this available position.

21.  The opinion also stated that the AGR program apparently did not have any other engineer positions for the applicant to fill, should his waiver be approved, and looked for other available positions.  In June 1998, the AGR accession team identified a branch immaterial assignment.  However, the applicant’s waiver request for the branch immaterial assignment was disapproved in August 1998, and he was unable to be accessed into the AGR program to fill this vacancy.  The applicant has not produced any evidence that his waiver request was approved, and absent such an approval, the applicant could never have been accessed into the AGR program.

22.  The opinion went on to state that the applicant remained on the list until September 1998, when he became disqualified on a new basis, his second nonselection for promotion and involuntarily separation from the Active Army due to this nonselection for promotion to major.  The disqualification was not waivable, and the applicant was removed from the list because he would never be eligible for entry into the AGR program.  The applicant’s claim that he was improperly prevented from accession into the AGR program is simply without merit.  
OCAR recommended that the applicant’s request be denied and states that there were no improprieties regarding his inability to be accessed into the AGR program.

23.  In a rebuttal provided by counsel, he states that the Army never acted on, or adjudicated the applicant’s AGR waiver request for an engineer assignment.  OCAR’s advisory opinion strongly suggests this error based upon the totality of evidence.  It appears the HQDA, DCSPER may have never adjudicated the applicant’s wavier request and that the applicant’s waiver request was disapproved for the "branch immaterial assignment" in August 1998.  In January 1997, when the applicant was "conditionally selected" and ranked # 1 on the Order of Merit List (OML) for engineer duty, regulations required his "accompanying" waiver request be immediately forwarded for endorsement, recommendation, and DCSPER approval.  Approval "validated" his selection keeping his initial OML ranking, while disapproval removed his name from the OML entirely.  Here, the Army violated these regulatory requirements---his engineer waiver request was never forwarded for endorsement, recommendation, or DCSPER action.  Applicant’s conditional selection as #1 for AGR entry as an engineer remained in limbo indefinitely, and never received any final validation.

24.  Counsel states that the regulations presumed a prompt and timely validation process without any interim manipulation of the prior selection board’s "best qualified" methodology.  Moreover, the regulatory language for processing conditional selections is not permissive but mandatory.  For example, the regulation does not state that when an accession board selects an applicant, requests for waivers "may" be forwarded to DCSPER for approval, but only that they "will be forwarded."  Secondly, because the word "validate" plainly means to "authenticate, confirm or substantiate," action was limited to confirming the original selection through DCSPER.  When a conditional selectee’s waiver request is denied, only then is that candidate found "disqualified" for AGR assignment and removed from the list.  As fully addressed in applicant’s brief, the only permitted route to alter the OML is whether a conditional selectee is retained or removed from the list---not a temporary "bumping" of applicant "to the bottom of the list.

25.  Counsel also points out that when the FTSMD assignment officials offered the applicant the engineer duty in February 1998, they should have been alerted to immediately question why the applicant’s conditional selection as #1 on the OML was not already validated, and properly forward his waiver request for DCSPER action.  They were not permitted to independently reject the prior OML ranking by introducing its own ad hoc ranking that placed the applicant on the "back-burner", while rummaging through the OML searching for more convenient candidates.  There are logically, no provisions to later arbitrarily substitute the applicant’s engineer waiver request for a "branch immaterial" request.  
This follows from his specific application to the 1998 selection board to limit its "best qualified" evaluation and OML ranking on his prospective engineer AGR duty.  Because the Army failed to act on his engineer waiver request, any later disapproval of a "branch immaterial" waiver request could not invalidate his conditional selection, nor remove him from that OML ranked as an engineer candidate.

26.  Lastly, counsel states that it should not be crucial whether applicant’s engineer waiver request was adjudicated and approved per se.  The statutory standard is only whether there was probable error or injustice under the circumstances to award relief, not whether it was an absolute certainty applicant’s waiver request was approved.  The established facts created a presumption making it probable that had the engineer waiver request been properly forwarded immediately upon applicant’s conditional selection in January 1998, that OCAR’s endorsement and recommendation would secure DCSPER approval.  Counsel concludes by stating, "the equitable doctrines of estoppels or implied waiver should be applied here.  Employing these doctrines to the facts requires the principle of "constructive knowledge" that holds a party accountable for their actions or inactions when causing injury to the other party.  FTSMD must be held accountable for constructively deciding to ignore (or waive) the validation of applicant’s conditional selection as the #1 Engineer.  It follows that implicitly waiving such prior validation, the FTSMD 6 Feb 1998 offer of the Engineer AGR duty position was with legal, binding effect.  FTSMD cannot now deny any legal effect of its "accepted" assignment offer after itself had ignored its requirement to secure DCSPER approval."

27.  AR 135-18 prescribes the policy and procedures for the administration of the AGR program.  It provides the Army policy for the selection, utilization, and administration of the Army National Guard of the United States (ARNGUS), and U.S. Army Reserve (USAR) personnel serving in the AGR program.  USAR personnel serve on AD under Title 10, U. S. Code (USC), section 10211, 10302(h), 12301(d), and 12402.  Chapter 2 of that regulation pertains to entry into the AGR program.  Paragraph 2-1 states, in pertinent part, that for initial entry in the AGR program, an applicant must possess the qualifications prescribed in table 2-1, not be disqualified under tables 2-2 or 2-3, and meet any additional requirements prescribed by the CAR.

28.  Table 2-1, pertains to qualifications for entry in the AGR program, Table 2-2, pertains to waivable disqualifications for entry in the AGR program, and Table 
2-3, nonwaivable disqualifications for entry in the AGR program.  Table 2-1, Rule E, of the regulation states that for entry in the AGR program, a soldier must be able to serve at least 5 years on AD status prior to: 1) completing 18 years of AFS, and 2) the date of mandatory removal from an active status based on age or service (without any extensions) under any provision of law or regulation as prescribed by current directives.  Table 2-2, Rule B, of the regulation states that, unless waived, entry in the AGR program will be denied if a soldier is unable to serve at least 5 years AD status prior to achieving 18 years AFS or a mandatory date for removal from an active status.  The waiver approval authority was the HQDA, DCSPER.

29.  Paragraph 2-6a of the regulation states, in pertinent part, that soldiers may submit applications for initial entry, or subsequent reentry in the AGR program following a break in that status, to the appropriate authorities.  These authorities will announce the procedures and the files or records required for inclusion with the application.  Through addresses will review the application and provide recommendations by endorsement.  Applications from soldiers who do not qualify under table 2-1, or have a nonwaivable disqualification under table 2-3, or who fail to meet any additional requirement prescribed by the CNGB or CAR, will be disapproved and returned to the applicant.  Soldiers who qualify under table 
2-1, but have a waivable disqualification under table 2-2, will attach a request for the appropriate waiver to their applications.

30.  Paragraph 2-7b of the regulation states that AGR selection boards will be convened at least annually to consider new applicants.  CNGB and CAR will establish appropriate procedures to verify the eligibility of applicants for the AGR program.  Validated applicants will be placed on a list of personnel eligible and available for consideration for order to AD.  An AGR selection board may select soldiers with a waivable disqualification conditionally.  The requests for waiver accompanying their applications will be submitted to the appropriate waiver authority.  If the waiver is approved, the selection is validated and the individual will be retained on the list of selected personnel.  If the waiver is disapproved, the applicant’s name will be removed from the list of selected personnel.  Request for waivers for personnel not selected by the AGR selection board will be returned without action.

31.  AR 140-30 prescribes policy and procedures for selecting, assigning, attaching, using, managing, and administering USAR soldiers on active duty in the AGR program.  It establishes a personnel management system for managing AGR soldiers through the following: (1) Selection for accession and continuation in the AGR program; (2) Promotion, and (3) Selection for schooling and training.  Paragraph 1-15 of the regulation states that the Commanding General of 
AR-PERSCOM will maintain a current list of approved AGR positions and positions vacancies, and announce when applications will be accepted for the AGR program for positions to be filled from the centralized HQDA recommended list.

32.  Paragraph 3-1 of the regulation states that the selection process encompasses the accession, selection for continuation, and periodic review of AGR soldier's performance through appropriate board actions.  The objective is to select the best-qualified soldiers and use them effectively to enhance the readiness and mobilization capabilities of the USAR.  Paragraph 3-3a(3) of the regulation states that the CAR has the responsibility to provide a recommendation for active duty through the appropriate selection process.

33.  Paragraph 3-3g of the regulation states that names of soldiers who are recommended by a DA accession board will be retained on the approved recommended list until one of the following actions occurs:  1) they are ordered to active duty; 2) they request their name be removed from the list, and 3) their name is removed or deleted from the list under paragraph 3-7e.  Paragraph 3-7e (1) (b) of the regulation states that removal from accession or continuation lists will be accomplished when the member was eligible for consideration for accession or continuation at the time the board convened, but is now ineligible for active duty in the AGR program.

34.  The Memorandum of Instruction (MOI) for Fiscal Year (FY) 98 USAR AGR Program Entrance Selection Boards provided that the method of selection is the "best qualified" from among those determined "fully qualified".  The instructions provide that the board will assume that all officer applicants are administratively eligible for entrance.  The board is to list those recommended for entrance by order of merit for each grade.  The board report will state:  "In the opinion of the majority of the members of the board, the individuals named on the enclosures (on the recommended list) possess the qualities and potential to perform the duties or assume the responsibilities normally expected of Army Reserve soldiers in their present grade and specialties and are recommended as the best qualified for entrance into the USAR AGR Program."

35.  The written administrative instructions provided to the Accessions Branch, FTSMD, provides the accession managers a list of duties and responsibilities to access soldiers from the OML to their AGR assignment.  At paragraph 1-1e it states that placement on the OML does not guarantee an individual an AGR assignment.  The OML is a working document for the Accessions Branch to hire from in accordance with the needs of the service.  At paragraph 1-2h it states that the accession manager will ensure that the soldier's AFS is below 156 months, and paragraph 1-2n states that the accession manager will submit requests for waivers through OCAR to HQDA, DCSPER.

36.  Paragraph 2-3 of the instructions highlight the accession manager's responsibilities in determining which officer on the OML may be best suited to fill a branch immaterial position because any number of different branch qualified officers may fill the position.  Specific duties may be determined from the position title and determine which officer is best suited for the position.  
The instructions also recommend that the accession manager consult with the eventual Personnel Management Officer for assistance in identifying the best candidate on the OML.

37.  Information provided by the Accessions Branch, FTSMD also indicated that requests for waivers of AFS were rarely approved by DCSPER when the OML contained other officers who were qualified to fill the position that did not require an AFS waiver.  The intent of the program was to access those qualified officers who could provide the most service to the program prior to mandatory retirement.

38.  AR 135-155 provides the policy for Reserve Component officer promotions.  It provides that, to be eligible for consideration for promotion, a USAR officer must be in an active Reserve status.  An active Reserve status does not include personnel on the active duty list.  The regulation also provides for promotion consideration by a Special Selection Board (SSB) when an officer was eligible for promotion consideration but the records were not submitted to the proper selection board.  Special Selection Board consideration may be directed by the ABCMR and is also provided for in Title 10, USC, section 14502.

39.  Title 10, USC, section 14304, provides the maximum years of service in grade for promotion consideration eligibility on the Reserve Active Status List (RASL).  It provides that officers will receive mandatory promotion consideration far enough in advance of completing the years of service in grade so that the promotion may be effective on or before the date the officer completes those years of service.  To be qualified for promotion to major an officer must have completed 7 years time in grade as a captain and an officer advanced course on or before the convening date of the board.

40.  The mandatory selection board for promotion to major, Reserve Active Status List, conducted from 2 March through 2 April 1999, is the earliest board that could have considered the applicant based on the circumstances provided.

CONCLUSIONS:

1.  The evidence of record shows that the applicant was recommended for acceptance into the AGR program by the AGR-EQB and was placed on the OML.  This recommendation neither entitled nor guaranteed the applicant entrance on AD in the AGR program.

2.  AR 135-18, paragraph 2-7b states that soldiers with a waivable disqualification may be selected conditionally by an AGR selection board and their request for waiver will be submitted to the appropriate waiver authority.  There is no stated regulatory requirement or compelling reason to process a waiver request until the individual is selected for an assignment.

3.  AR 140-30, paragraph 3-3 d states that requests for waivers must be justified and documented fully.  If selected by an accession board, requests for waivers will be forwarded through the ARPERCEN commander for endorsement and recommendation to the approving authority.  This regulation neither specifies nor implies when during the accession process the waiver request will be forwarded to the approving authority.  The FTSMD advisory opinion further states that the accession manager must determine which applicant on the OML list best meets all of the requirements of a specific position vacancy and must be able to fully justify why a particular applicant should have a waiver approved if other qualified officers remain on the list.

4.  Counsel contends that the applicable regulations prohibit selecting an officer for an AGR assignment who is lower on the OML until all other officers higher on the OML have either been selected or removed.  The applicable regulations only address placement on a list of eligible and available officers.  The regulations make no mention of a hierarchy within the approved list where one officer takes precedence over another.  The AGR MOI provides that all officers selected are the "best qualified" from a list of "fully qualified" officers.  These "best qualified" officers are then listed by a subjective order of merit.  The use of the OML is not further directed or clarified in any manner in the MOI and an OML is not mentioned in any form in the applicable regulations.

5.  Information on the specific requirements for the engineer captain AGR positions that were filled from the list that the applicant was on is no longer available.  However, it is apparent that all engineer captain AGR positions were filled without having to process the applicant's waiver request.  Additionally, when the applicant's waiver request was processed for a branch immaterial position, it was disapproved, even though he was the third officer overall on the OML.

6.  The written administrative instructions which the Accession Branch followed at the time, and are still in place today, show that it was within their scope of responsibilities to determine which officer on the approved list of "best qualified" officers best met the needs of the position and the Army.  From the available evidence, this procedure has been in place and followed for many years prior to the applicant's placement on the OML.

7.  Notwithstanding the above, the applicant was contacted by officials of the Accessions Branch, FTSMD, and accepted the position he was offered.  It was incumbent on those officials to verify his eligibility for that position prior to making the offer and once made, the process of following through with his waiver request was a reasonable expectation.  It was the responsibility of HQDA, DCSPER to rule if insufficient justification for his waiver was presented, and disapprove it.

8.  It would be reasonable to expect that a waiver request would take several months to process to conclusion.  It would be also be reasonable to expect the applicant's request for release from active duty and transfer to the Individual Ready Reserve would take several additional months to process to conclusion.  Since the applicant would have to be separated from active duty prior to 21 September 1998, the approval date of his second non-select for major on the active duty list, an arbitrary date of separation from active duty of 20 September 1998 is reasonable.

9.  The applicant should be given the opportunity to have his records reviewed by the appropriate Reserve Component Mandatory Selection Board (RCSB) under the SSB procedures for promotion consideration to major under the 1999 and 2000 criteria.  These are the two RCSBs that would have considered him for promotion to major if he had been released from active duty on 20 September 1998.

10.  To present his promotion file in the best possible light under the circumstances, a memorandum should be placed in his promotion folder explaining the non-rated time from 21 September 1998 to 2 March 1999, the convening date of the original RCSB.  An additional memorandum should be placed in his promotion folder explaining the non-rated time from 3 March 1999 to 7 March 2000, if it is necessary to send his records to a subsequent SSB under the 2000 criteria.  If he is not selected for promotion by either SSB, no further action or corrections are necessary.

11.  If the applicant is selected for promotion to major on the RASL, his Regular Army enlistment contract should be voided and his records corrected to show that he was separated from active duty as a captain on 20 September 1998, under Secretarial Authority, and transferred to the Individual Ready Reserve (IRR) on 21 September 1998.  His second non-selection for major on the Active Duty List should also be voided and expunged from his records.

12.  The applicant's records should then be corrected to show that he was placed on active duty as a captain in the AGR program effective 22 September 1998, the day following his placement in the IRR.  He should then be placed in an appropriate AGR position.

13.  Since the recommended corrections are based on his selection for promotion, he should be promoted to major with a date of rank and an effective date consistent with the SSBs and his AGR position.  These actions would also make him eligible for back pay and allowances consistent with the corrective actions.

14.  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 for the individual concerned be corrected as an exception to policy:

	a.  by sending the appropriate officer records for the applicant to Reserve Component Special Selection Boards for promotion consideration to major on the Reserve Active Status List under the 1999 and 2000 criteria;

	b.  if selected for promotion to major by either promotion criteria, by voiding his enlistment in the Regular Army;

	c.  if selected for promotion to major, by showing that he was released from active duty effective 20 September 1998 and transferred to the Individual Ready Reserve Control Group (Reinforcement) effective 21 September 1998, in the grade of captain, by reason of Secretarial Authority;

	d.  if selected for promotion to major, by removing all references of his second non-selection for promotion to major on the ADL from his Official Military Personnel File;

	e.  if selected for promotion to major, by showing that he was accessioned into the AGR program in the rank of captain, with an effective date of active duty of 22 September 1998;

f.  if selected for promotion to major, by locating an appropriate AGR position and transferring him to said position;

	g.  if selected for promotion to major, by promoting him with the appropriate date of rank and effective date of promotion consistent with his Special Selection Board results and his AGR position;

	h.  if selected for promotion to major, by providing him the all back pay and allowances consistent with the above corrective actions; and

	i.  by leaving him on active duty in his current grade under his present enlistment contract if he is not selected for promotion to major on the Reserve Active Status List by the Special Selection Boards.

BOARD VOTE:  

__jp___  ___rs___  ___jm_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__ Jennifer L. Prater ___
		        CHAIRPERSON

INDEX

CASE ID	AR2001056808	
SUFFIX		
RECON		
DATE BOARDED	20020604	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	102.03	
2.	102.08	
3.	113.01	
4.	128.00	
5.	135.00	
6.