PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  1 August 2002
	DOCKET NUMBER:  AR2002069937

	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. Samuel A. Crumpler		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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, to retain the retirement points that he earned from 30 April 1998 through 12 February 2001, and that he be retained as a first lieutenant (1LT) in a Troop Program Unit (TPU).

3.  The applicant states, in effect, that he did not know that he had been discharged from the USAR as an officer, that he was assigned to a TPU and served in good faith.  He is dismayed that his retirement points earned by this service are revoked.  He states, in effect, that he served over 18 years and should be retained to complete 20 years to qualify for retirement at age 60.

4.  The applicant’s military records show that he served as an enlisted member of the Army National Guard in Pennsylvania and then New Jersey, from 24 April 1980 through 26 June 1987.  The records available to the Board do not show what retirement points he earned during this 7 year, 2 month, and 3 day period.

5.  On 27 June 1987, he was appointed as a second lieutenant of Infantry in the New Jersey Army National Guard (NJARNG) after completing the NJARNG Officer Candidate School.  On 31 July 1987, he was granted federal recognition, effective 27 June 1987.  He served as an officer in NJARNG units.  He satisfactorily completed the resident Infantry Officer Basic Course at Fort Benning on 26 February 1988.  He was promoted to 1LT on 26 June 1990.  On 
1 November 1995, he was honorably separated from the NJARNG as a result of his resignation from his ARNG appointment under the provisions of National Guard Regulation (NGR) 635-100, paragraph 5a(3).  Upon separation, he was transferred to the U. S. Army Reserve (USAR) Individual Ready Reserve (IRR) as a 1LT.  During this period, 27 June 1987 through 1 November 1995, he earned sufficient retirement points for 7 years, 9 months, and 23 days creditable service for retired pay at age 60.

6.  While he was a 1LT in the NJARNG, he was considered for promotion to captain (CPT) by the 1994 Reserve Components Selection Board but was not selected.  He was notified of this nonselection by a memorandum, dated 1 March 1994, from the U. S. Total Army Personnel Command (PERSCOM) through The Adjutant General (TAG) of New Jersey.  The memorandum informed him that this constituted his first passover for promotion and that he would be considered again by the next year's board.  He was again considered for promotion to CPT by the 1995 Reserve Components Selection Board but was not selected.  He was notified of this nonselection by a memorandum, dated 27 January 1995, from PERSCOM through the TAG of New Jersey.  The memorandum informed him (incorrectly) that this constituted his first passover for promotion and that he would be considered again by the next year's board.  On 25 September 1996, the 
U. S. Army Reserve Personnel Command (AR-PERSCOM) published orders honorably discharging the applicant from the USAR, effective 26 September 

1996, due to two-time nonselection for promotion.  The orders were sent on 
24 October 1996, to the applicant's last known address in Denver, Colorado.  On 24 May 1999, PERSCOM published a corrected memorandum through the TAG of New Jersey correctly stating that the 1995 consideration was the applicant's second nonselection and that he must be discharged according to Army Regulation 140-10.  On 29 June 1999, the AR-PERSCOM published an order honorably discharging the applicant from the USAR, effective 28 June 1999, due to two-time nonselection for promotion.  On 14 July 1999, this order was voided by AR-PERSCOM when it was discovered that the discharge order had been published in 1996.

7.  During this period, while living at a different address in Denver, Colorado, apparently unaware that he had been discharged, the applicant requested transfer from the IRR to a USAR TPU in the 96th Reserve Support Command (RSC).  On 30 April 1998, AR-PERSCOM published orders transferring the applicant from the IRR to the 96th RSC, effective 30 April 1998.  The retirement point accounting system shows that the applicant earned the retirement points shown in the table below by participation in unit training.  He also was paid for this training participation.  On 12 February 2001, AR-PERSCOM revoked the applicant's orders assigning him from the IRR to the 96th RSC.  On this date, the applicant's participation in the TPU was terminated.

RYBDT	RYEDT	TRNG PTS	MEMBRSHP PTS	TOTAL PTS	Creditable Svc(yymmdd)	
20000424	20010212	42	12	54	00 09 25	
19990424	20000423	52	15	67	01 00 00	
19980424	19990423	56	15	71	01 00 00	

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-26; and Title 10, U. S. Code, section 14504 and 14513; in pertinent part, require that a 1LT that fails selection for promotion to CPT the second time, will be discharged from the officer's Reserve appointment.

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers)  provides for the assignment, transfer, and separation of USAR personnel.  Paragraph 7-4b states that an officer who twice fails selection for promotion to captain, major, or lieutenant colonel will be discharged unless eligible for and requests transfer to the Retired Reserve.  Paragraph 7-12b states that officers who have over 18 years of qualifying service for retirement will be retained for up to 3 additional years in order to attain 20 years, and officers who have over 

19 years of qualifying service for retirement will be retained for up to 2 additional years in order to attain 20 years qualifying for retired pay at age 60.  This policy does not apply to officers transferred or discharged for physical disability, cause, or upon reaching the maximum age at which transfer to the Retired Reserve or discharge is required by law.

10.  The AR-PERSCOM provided an advisory opinion that the applicant was properly discharged for failure to be selected for promotion after a second consideration by a Reserve Components selection board.  The advisory opinion also stated that omitted removal from an active status when discovered will be effective on the removal action date and retirement points earned after that date are not creditable.  The applicant was mailed a copy of the advisory opinion on 30 May 2002, but has not provided any rebuttal.

CONCLUSIONS:

1.  The applicant was honorably discharged from the USAR on 26 September 1996, due to two-time nonselection for promotion to CPT.  It appears that neither the applicant nor personnel management officials at AR-PERSCOM were aware that this discharge had been published since AR-PERSCOM published orders in 1998 transferring him from the IRR to a TPU at the applicant's request.  The applicant served in the TPU in good faith from 30 April 1998 through 12 February 2001, when his discharge status was clarified and his TPU assignment orders were revoked.  As a matter of justice and fairness, his discharge should be changed from 26 September 1996 to 12 February 2001, and his retirement point account should be credited for his training participation and membership between these dates.

2.  The applicant was correctly discharged according to regulation and law for two-time nonselection for promotion to CPT and is not eligible to be reinstated in the Reserve as an officer beyond the correction date of 12 February 2001 above, although he may be eligible to enlist which can be determined by the Recruiting Command.

3.  Considering his possible but unconfirmed 7 years, 2 months, and 3 days creditable service for retired pay at age 60 as an ARNG enlisted soldier; his 
7 years, 9 months, and 23 days creditable service for retired pay at age 60 while serving as an ARNG officer; and his 2 years, 9 months, and 25 days creditable service for retired pay at age 60 while serving as a USAR officer as a result of this corrective action, the applicant may have at most 17 years, 9 months, and 
21 days creditable service for retired pay at age 60 and is therefore not eligible for retention to complete 20 creditable years.

4.  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 by:

	a.  changing his date of discharge from the USAR as an officer from 
26 September 1996 to 12 February 2001; and

	b.  crediting him with retirement points earned from 26 September 1996 through 12 February 2001.

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

BOARD VOTE:  

__sc___  __mm___  __rs___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2002069937	
SUFFIX		
RECON		
DATE BOARDED	20020801	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19960926	
DISCHARGE AUTHORITY	AR 135-155, para 4-26	
DISCHARGE REASON	2X nonselect for promotion	
BOARD DECISION	Grant Part	
REVIEW AUTHORITY		
ISSUES         1.	110.03 - Reinstatement	
2.	136 – Retirement/Separation	
3.		
4.		
5.		
6.