PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  28 August 2001
	DOCKET NUMBER:  AR2001057659

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Richard T. Dunbar		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, in effect, that his discharge from the Army Reserve be voided and that he be transferred to the Standby Reserve (Inactive), effective 
31 March 2000.

3.  The applicant states, in effect, that he, a captain in the Army Reserve, is a member of the staff of a United States Representative in Congress who is on the Armed Services Committee.  On 23 March 2000, the Congressman, sent a letter to the United States Army Reserve Personnel Command requesting that the applicant be transferred to the Standby Reserve (Inactive) in accordance with Army Regulation 135-133 (Ready Reserve Screening, Qualification Records System, and Change of Address Reports), paragraph 2-10, in that he was declared a key Federal employee in a position that could not be vacated during a national emergency or mobilization without seriously impairing the capacity of the Congressman’s office to function effectively.  Action on this request was not completed and he was unjustly discharged from the Army Reserve effective 
1 January 2001 for two-time non-selection for promotion to major.

4.  The applicant’s military records show that he was a captain in the Judge Advocate General Corps (JAGC) in the United States Army Reserve (USAR) Control Group (Reinforcement), Individual Ready Reserve (IRR), on 21 May 1999, when he was transferred to a Troop Program Unit (TPU), the 10th Judge Advocate Team, Legal Support, in Upper Maralboro, Maryland.  The applicant was considered for promotion to major by the Calendar Year 1999 (CY99) promotion board but not selected due to not being educationally qualified.

5.  On 14 April 2000, the Transition and Separation Branch of the U. S. Army Reserve Personnel Command (AR-PERSCOM) received the Congressman’s request to transfer the applicant to the Standby Reserve (Inactive).  Since the applicant was a member of a TPU, it was necessary for the TPU to take action 
to transfer the applicant to the Standby Reserve (Inactive).  This information was provided to the Congressman’s office.

6.  The applicant was considered for promotion to major by the CY2000 promotion board but not selected due to not being educationally qualified.  The board’s recommendations were approved on 19 July 2000.  On 11 October 2000, the TPU commander submitted to the 99th Regional Support Command, a request to transfer the applicant to the Standby Reserve (Inactive).  On 
17 November 2000, AR-PERSCOM published orders D-11-061421 honorably discharging the applicant from the Army Reserve for two-time non-selection for promotion.

7.  The Transition and Separation Branch, AR-PERSCOM, provides an opinion that the action to transfer the applicant to the Standby Reserve (Inactive) was not properly completed even though a timely request had been made by the Congressman.  The opinion is given that the applicant’s discharge should be voided, that his name be removed from the two-time passover roster, and that he should be transferred from the TPU to the Standby Reserve (Inactive) effective 31 March 2000.  

8.  In accordance with Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), officers in the Standby Reserve are not eligible for consideration by promotion boards.

9.  According to AR 135-133 (Ready Reserve Screening, Qualification Records System, and Change of Address Reports), paragraph 2-10, 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.  Paragraph 2.11 requests heads of Federal agencies or offices to notify 
AR-PERSCOM (ARPC-PSP-T) by letter of key employees and request that 
they be removed from the Ready Reserve (and transferred to the Standby Reserve(Inactive)); AR-PERSCOM will forward the requests to commanders 
for action.

CONCLUSIONS:

1.  A proper and timely request was made by the applicant’s employer, the Congressman, according to Army Regulation, to transfer the applicant to the Standby Reserve (Inactive) due to being a key Federal employee.  Systemic action to affect this transfer was not completed in a timely manner and as a consequence, the applicant was incorrectly considered by a promotion board 
that resulted in his two-time non-selection and consequent discharge.  This discharge should be voided and the applicant should be transferred to the Standby Reserve (Inactive), effective 31 March 2000.  The applicant’s name should also be removed from the two-time non-selection list and the fact that 
he was two-time non-selected for promotion expunged from the record.

2.  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 for the individual concerned by:

	a.  voiding the AR-PERSCOM orders D-11-061421, dated 17 November 2000, discharging him from the Army Reserve;

	b.  transferring him from his assigned TPU to the Standby Reserve (Inactive) effective 31 March 2000; and

	c.  removing his name from the two-time non-select for promotion list and expunging his two-time non-selection from the record.

BOARD VOTE:  

__js___  ___dh___  ___rd_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2001057659	
SUFFIX		
RECON		
DATE BOARDED	20010828	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131 - Promotion	
2.		
3.		
4.		
5.		
6.