MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 April 2003
	DOCKET NUMBER:  AR2002072743

	I certify that hereinafter is recorded the record of consideration 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. Melvin H. Meyer		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Mae M. Bullock		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his date of rank for captain (CPT), U. S. Army Reserve (USAR), be changed from 4 October 1999 to 21 May 1991.

APPLICANT STATES:  That his promotion eligibility date (PED) for CPT, USAR, is 21 May 1991.  According to Army Regulation 135-155, chapter 4, 
paragraph 4-15b, the PED should be the DOR upon promotion.  He submits copies of his pertinent military personnel records to support his request.

EVIDENCE OF RECORD:  The applicant's military records show:

That he served as an enlisted soldier in the Regular Army from 3 February 1977 through 17 July 1981.  He was honorably discharged as a sergeant (SGT), pay grade E-5, to enroll in a two-year Reserve Officer Training Corps (ROTC) Scholarship Program.  On 11 September 1981, he enlisted as a SGT in the Texas Army National Guard from which was honorably discharged on 30 September 1982.  On 3 November 1982, he enlisted in the USAR as a SGT for a term of 1 year.  He was honorably discharged from the USAR as a SGT in the 245th Psychological Operations Company on 1 July 1983, by orders 128-110 issued on 1 July 1983 by Headquarters, Fifth United States Army.  On 19 May 1984, Headquarters, U. S. Army 3rd ROTC Region, Fort Riley, Kansas, issued through the Professor of Military Science at the University of Texas at Arlington, an appointment for the applicant as a Reserve commissioned officer, second lieutenant (2LT) in the Infantry.  He accepted the appointment on 19 May 1984.   His 2LT DOR was 23 May 1984.

He attended the Infantry Officer Basic Course at Fort Benning, Georgia, from 
16 June 1984 through 10 October 1984.  He marginally achieved course standards receiving an unsatisfactory in leadership skills.  His DA Form 1059 (Service School Academic Evaluation Report) for the course was a referred report.

From 11 October 1984 through 10 October 1985, he was assigned on active duty as a Weapons Platoon Leader in Company A, 1-325 (Airborne) Infantry, 
82nd Airborne Division at Fort Bragg, North Carolina.  For this period, he received a "Do Not Promote", senior rater center block, below center-or-mass, referred Officer Evaluation Report (OER).  On 13 December 1985, he was honorably released from active duty for failure of selection for permanent promotion to first lieutenant (1LT) and transferred to the USAR Control Group (Reinforcement), the Individual Ready Reserve (IRR), as a 2LT.

On or about 3 November 1986, he was arrested in Oklahoma on charges of manufacturing controlling dangerous substances and conspiracy.  

On 20 March 1987, he received an appointment in the Oklahoma Army National Guard (OKARNG) as a 2LT.  On 12 May 1987, OKARNG suspended favorable personnel actions and security clearance for the applicant by a DA Form 5248-R (Report of Unfavorable Information for Security Determination).  The DA Form 5248-R cited criminal or dishonest conduct; deliberate false statement, deception or fraud in applying for appointment to OKARNG; conduct unbecoming an officer, indication of poor judgment, unreliability or untrustworthiness; and in included a copy of a grand jury indictment.  On 6 June 1987, he was honorably discharged from the OKARNG for failure to qualify for permanent Federal recognition.  He was transferred to the IRR as a 2LT.  On 16 July 1987, he was reassigned to a Troop Program Unit (TPU), the Company A, 2nd Battalion, 12 Special Forces, in Oklahoma City, Oklahoma.

On or about 24 July 1987, he was convicted by the U. S. District Court of Western Oklahoma for conspiracy to manufacture a controlled 
substance and was sentenced to 18 months confinement.  He was confined at
the Federal Correction Institution at Big Spring, Texas, on 31 August 1987.

On 8 February 1988, favorable personnel actions for the applicant were suspended by a DA Form 268 (Report for Suspension of Favorable Personnel Actions) issued by the Army Reserve Personnel Center (ARPERCEN).  The reason for the suspension was elimination, dropped from the rolls (DFR) under Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers), paragraph 3-3b.

On 16 February 1988, ARPERCEN, office DARP-PAT-RT (Transfers Section), issued orders # C-02-800334, dropping the applicant from the rolls (DFR) as a 1LT in the IRR, effective 16 February 1988.  On 20 April 1988, ARPERCEN, office DARP-PAT-RR (Removal Section), issued orders # C-02-800334A01, amending the rank on the DFR order from 1LT to 2LT.

On 24 July 1988, the applicant wrote a letter to ARPERCEN requesting a discharge certificate.  On 8 November 1988, ARPERCEN replied by letter that the applicant had been DFRed on 16 February 1988, and that discharge certificates were not issued in such cases.

By error, the applicant was considered for promotion to 1LT by the 
December 1988 USAR Mandatory Promotion Selection Board but was not selected.  On 30 January 1989, the U. S. Total Army Personnel Command (PERSCOM), published a letter notifying the applicant of his non-selection.

The applicant submitted a copy of a 12 December 1988 order purported to be issued by ARPERCEN, office DARP-OPM-O (Officer Personnel Management 

Support Division, Orders Branch), orders # C-02-800334R, "Revocation (pertaining to) action directed by orders #C-02-800334 dated 16 February 1988." However, the office symbol for the issuing office is for an office that was not authorized to revoke separation or DFR orders.  The print on the order, font size, spacing, and being in all upper case letters are inconsistent with orders issued by ARPERCEN at that time.  The orders number is not authentic or on record in orders repository.  The orders format is incorrect according Army Regulation 
310-10 (Military Orders), Format 705, in effect at the time, by showing the word "Revocation" instead of the correct word "Revoke", not including the required 
lead line "So much of:"; not containing the correct information following the lead line "Pertaining to:"; including a "Reason" lead line and "VOCG" which are not authorized for the revocation orders format 705.  The stars surrounding the words "ARPERCEN OFFICIAL" are five pointed stars instead of the six pointed stars used by orders printing equipment at ARPERCEN.  The linear size of the box created by the stars is significantly smaller that that created by orders printing equipment at ARPERCEN.  There also was no regulatory or legal basis for revocation of the DFR.

By error, on 27 August 1993, ARPERCEN published a letter to the applicant notifying him that he had been considered for promotion to 1LT and not selected, and that his discharge was mandatory.  On 27 August 1993, ARERCEN issued orders # D-08-371527, discharging the applicant as a 2LT in the IRR from the USAR.  On 28 July 1997, ARPERCEN issued orders # D-08-371527R voiding the 27 August 1993, D-08-371527 orders, since the applicant had no military status in 1993.

In April 1996, the applicant applied for enlistment in the OKARNG.  A request for an enlistment waiver for his felony disqualification was forwarded to OKARNG Headquarters.  On 8 July 1996, the OKARNG disapproved the waiver request due to the applicant having submitted a deceptive enlistment application. The applicant had not listed a period of service with the OKARNG at a 2LT from 
19 March 1987 to 6 June 1987 from which he was released and transferred to the IRR.  He had been released from the OKARNG in 1987 by reason of failure to qualify for federal recognition due to his civil conviction and confinement for 
18 months beginning 25 August 1987.  The applicant’s enlistment application contained a copy of an honorable discharge order from the USAR as a SGT dated 1 July 1988, effective 1988, that did not agree with the records on file in the OKARNG.  The order showed that is was orders 128-110, dated 1 July 1988, issued by Headquarters, Fifth United States Army, for honorable discharge of the applicant as a SGT from the 245th Psychological Operations Company, Dallas, Texas, effective 1 July 1988.  A certified true copy of this order shows that in fact it was dated 1 July 1983 with and effective date of 1 July 1983.  This was from a period of enlisted service in the TXARNG which began on 3 November 1982.

Failing enlistment in the OKARNG, he enlisted in the Texas Army National Guard (TXARNG) on 27 June 1996 in the pay grade of E-5 for a 6-year term of service.  He failed to show the above OKARNG period of service on the DD Form 1966/3 (Record of Military Processing) for this enlistment and the DD Form 1966/1 shows that no waivers were granted.  On the DD Form 1966/2, the applicant answered “No” by his initials that he had never been rejected for enlistment.  The DD Form 1966 shows no information on the applicant’s conviction, confinement, or DFR in 1988.  After enlisting in the TXARNG on 27 June 1996, he transferred to a unit in the OKARNG on 13 July 1996.

On 27 July 1997, the applicant made a request to the OKARNG for discharge as a sergeant to accept an appointment in the USAR.  A commander’s request 
memorandum attached to the applicant’s request states that the soldier was erroneously discharged from the USAR in August 1993 due to not completing Infantry Office Basic Course (IOBC); the USAR had found that he had completed IOBC and had revoked his August 1993 discharge; and the soldier has elected to take back his commission.  On 20 August 1997, the OKARNG issued a NGB Form 22 (Report of Separation and Record of Service) honorably discharging the applicant from the OKARNG as a SGT, pay grade E-5, by reason of the individual's request.  The NGB Form 22 shows that he was transferred to the USAR Control Group (Reinforcement) as an E-5 to complete 4 years, 10 months, and 8 days remaining of his enlistment statutory obligation, the termination date to be 27 June 2002.  There is no record of his discharge from the IRR as an enlisted member between 20 August 1997 and 27 June 2002.

The applicant provided a copy of a DA Form 71 (Oath of Office) for a Reserve commission as a 1LT showing that he took an oath of office at Tulsa, Oklahoma, on 6 August 1997.  The form shows that the oath was administered by an OKARNG captain who was not authorized by OKARNG to administer such oaths. However, there is no record of an appointment letter being issued for this commission, a waiver of the applicant’s federal conviction, or the granting of a Federal recognition.  A search of PERSCOM Reserve Appointment records and the OKARNG records has not produced any such documents.  A search of Army National Guard Bureau records for Federal recognition showed no request for such recognition for this commission.

On 21 August 1997, ARPERCEN, office ARPC-ZOR-OOOO, issued orders 
C-08-734532, transferring the applicant from the IRR as a 1LT to a TPU, the 
827th Quartermaster Company (Repair Parts) in Muskogee, Oklahoma, effective 18 August 1997.  A change of rater OER shows that he served as the 1LT platoon leader (DOR-18 May 1997) in the 827th from 18 August 1997 to 16 March 1998. A subsequent change of rater OER shows that he served as a 1LT commander (DOR-22 May 1997) of the 304th Maintenance Company, Bartlesville, Oklahoma, from 16 October 1998 through 17 March 1998.

On 24 October 1997, the Central Clearance Facility, Fort Meade, Maryland, issued a DA Form 873 (Certificate of Clearance and/or Security Determination)  for the applicant as an enlisted Reserve soldier granting a secret clearance based on a National Agency Check completed on 28 June 1983.

On 19 March 1998, PERSCOM Office of Promotions, Reserve Components, issued a memorandum of promotion promoting the applicant to 1LT, USAR, with an effective date and DOR of 22 May 1987.  This was based on a manual promotion recommendation as a result of the applicant's request for promotion.  Finding no disqualifying information in his personnel record at AR-PERSCOM at the time, the promotion was published.

A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that the applicant served on active duty for training from 14 March 1999 through 7 September 1999, based on self-terminating orders 122-462, dated 12 March 1999.  He served as the Assistant J3 Plans officer at U. S. SOUTHCOM.  He was honorably released from active duty and transferred to the 304th Maintenance Company at Bartlesville, Oklahoma.  The DD Form 214 shows him as a CPT with a DOR of 1 May 1999.  There is no record of a promotion order or promotion memorandum for the applicant's promotion to CPT with a DOR of 1 May 1999.

On 6 October 1999, PERSCOM published a promotion memorandum promoting the applicant to CPT, USAR, with an effective date and DOR of 4 October 1999.  This was based on the applicant having been selected for promotion by a USAR Mandatory Promotion Selection Board that convened on 9 November 1998, adjourned on 11 December 1998, and whose recommendations were approved on 11 April 1999.  The promotion board data showed the applicant's PED for CPT as 21 May 1992, based on 5 years time-in-grade from a 1LT DOR of 
22 May 1987.  However, the board was not aware that the applicant had been dropped from the rolls in on 16 February 1988 due to civil conviction and sentenced confinement which separation would have affected the CPT PED.  The applicant was promoted on 4 October 1999, based on assignment to a TPU on or about that date.

Another DD Form 214 shows that the applicant served on Active duty from 
12 December 1999 through 6 July 2000, at Fort Benning, Georgia, in the Mobilization Support Detachment 73.  There is no OER in the record for this period.

On 5 March 2001, the PERSCOM Officer Promotions Office issued order 064-004 showing the applicants active DOR (ADOR) as 1 May 1999.  This determination was based on documents supplied by the applicant, the 

DD Form 214 for the period ending 7 September 1999, the OER for the period ending 26 August 1999, and an officer record brief all of which showed his CPT DOR as 1 May 1999.  However, that PERSCOM office did not have any promotion order or promotion memorandum to support this DOR nor did they have a copy of the 6 October 1999 promotion memorandum.  The 5 March 2001 order was amended by PERSCOM on 4 September 2002 by orders 247-006 changing the applicant’s ADOR to 4 October 1999 based on his CPT promotion order.

On 18 December 2000, the PERSCOM Officer Personnel Management Directorate issued orders A-12-004963, ordering the applicant to Active duty on 20 December 2000, for 2 years with the U. S. Recruiting Command assigned to the Phoenix Recruiting Battalion, Phoenix, Arizona.  His expiration of term of service was 19 December 2002.  This period of service was extended by six  months to 19 June 2003. 

On 21 November 2001, the PERSCOM Office of Promotions, Reserve Components, issued a memorandum to AR-PERSCOM Transition and Separations Branch, informing them that the applicant had been dropped from the rolls on 16 February 1988, had no military status, and should be removed from the strength of the Army and from active duty.  Also on 21 November 2001, PERSCOM Office of Promotion, Reserve Components, issued a letter to the applicant informing him he had been dropped from the rolls on 16 February 1988, should not have been considered for promotion to 1LT in 1988 or 1987, and should not have been promoted to 1LT in 1998.  The applicant was informed that he would be removed from the strength of the Army and from active duty.  He was granted de facto status from August 1997 until he could be removed from a pay status.  A memorandum was also sent to the commander, U. S. Army Recruiting Battalion Phoenix, informing the commander of these facts.  Based on these documents, on 25 March 2002, the PERSCOM Retirements and Separations Branch issued a memorandum to the commanding general of the 
U. S. Army Recruiting Command (USAREC) to release the applicant from custody and control of the Army on 5 April 2002.  On 27 March 2002, the U. S. Army Recruiting Battalion Phoenix commander issued a memorandum through the 6th Recruiting Brigade and the USAREC commander to PERSCOM stating that the applicant refused separation and requested a Board determination for separation.

The applicant's rebuttal to the separation action and appeal for a separation board were reviewed by the PERSCOM Command Judge Advocate (CJA).  The CJA determined that the applicant's official status was that he is a sergeant (SGT), pay grade E-5, in the USAR, based on his enlistment in the TXARNG on 27 June 1996 for a 6 year term of service, having been discharged from the 

OKARNG on 20 August 1997 and transfer to the IRR.  On 8 May 2002, the PERSCOM Office of Promotions, Reserve Components, issued a memorandum 
to the commander, 6th Recruiting Brigade, notifying them that the applicant should be notified of his correct grade (SGT) and pay grade (E-5) and that his military records be corrected accordingly.  PERSCOM also recommended that the 6th Recruiting Brigade initiate action to determine if the applicant fraudulently obtained enlistment in the Army National Guard and that appropriate action be taken as a result of the investigation.

On 12 July 2002, the United States District Court for the District of Arizona in a case between the applicant and PERSCOM, granted a preliminary injunction to dropping the applicant from the rolls of the Army and from terminating his active duty status as a CPT prior to December 20, 2002.  The PERSCOM command judge advocate responded to the injunction in a letter dated 12 December 2002 to the effect that the applicant would be allowed to remain on his then current tour of extended active duty and then he would be released to the Individual Ready Reserve in accordance with applicable laws and regulatory standards.  
In light of this letter, on 23 December 2002, the United States Attorney for the District of Arizona submitted to the court to dismiss the applicant’s legal case against the Army for the intent of dropping the applicant from the rolls of the Army and from terminating his active duty status as a CPT.  

On 19 December 2002, the Headquarters, U.S. Army 6th Recruiting Brigade, published the findings of an Army Regulation 15-6 investigation into personnel documents relative to the applicant.  The investigation found that the 
12 December 1988 U.S. Army Reserve Personnel Center order revoking the applicant’s 16 February 1988 U. S. Army Reserve Personnel Center drop from the rolls was not a legitimate order and was a false document.  The investigation substantiated that the applicant knowingly submitted the false revocation order.  The investigation further substantiated that: the applicant submitted false information on his application for Army National Guard federal recognition in January 1987 by stating “No” to the question, “Have you ever been arrested or convicted by a civil court of other than minor traffic violations?”; that the applicant fraudulently enlisted in the Texas Army National Guard in June 1996 by acts of commission and omission, provide false information on his enlistment documents; and that the applicant did make a false statement on the Standard Form 86, Security Questionnaire, dated 13 August 1997, by stating “No” to the question, “To your knowledge , have you ever had a clearance or aces authorization denied, suspended, or revoked …?”  The result of the 15-6 investigation was the issue to the applicant of a 27 January 2003, General Officer Letter of Reprimand (GOLOR) for committing various acts of fraud and deceit against the United States Army.  On 3 February 2003, the applicant provided a memorandum statement on his own behalf concerning the GOLOR.  After 

considering the applicant’s statement, the commanding general directed that the GOLOR be filed in the applicant’s Official Military Personnel Record.

Army Regulation 135-175, Separation of Offices, chapter 3, in pertinent part states that the status of a Reserve Officer will be terminated (separated) by dropping the officer from the rolls when sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a civil court, whether or not the officer is actually confined.  Separation terminates an officer’s commission and service obligation.

Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, in effect between 1991 and 1999, states in paragraph 4-15b, “Date of Rank (DOR): The DOR is the date the member actually or constructively was appointed or promoted to a specific grade.  …The officer’s PED (Promotion Eligibility Date) will become the officer’s DOR upon promotion.”  Paragraph 4-15a states that the PED is based on the promotion eligibility requirements in table 2-1 which show a 4-year time-in-grade requirement for promotion from 1LT to CPT.  This requirement was changed to 
5-years time-in-grade by the Reserve Officer Personnel Management Act (ROPMA) enacted on 1 October 1996.  ROPMA further directed that the DOR for promotion would be the date that the President approved the recommendations of a promotion board or a date after that on which the officer was actually promoted.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant contends that his PED for CPT was 21 May 1991, or four years from his DOR for 1LT of 22 May 1987.  On 19 March 1998, PERSCOM Office of Promotions, Reserve Components, issued a memorandum of promotion promoting the applicant to 1LT, USAR, with an effective date and DOR of 22 May 1987.  This was based on a manual promotion recommendation by the promotion office as a result of the applicant's request for promotion.  Finding no disqualifying information in his personnel record at AR-PERSCOM at the time, the promotion was published.  However, documents did exist to show that he was not qualified for promotion to 1LT: two referred evaluation reports as a 2LT, the later indicating that he should not be promoted; his DD Form 214 for the period ending 13 December 1985 showing that the applicant was relieved from active duty for failure of selection for permanent promotion to 1LT; his NGB Form 22 for the period ending 6 June 1987 showing that the applicant was discharged from the OKARNG for failure to qualify for permanent officer federal recognition; an AR-PERSCOM Order, dated 20 April 1988, dropping the applicant from the 

rolls effective 16 February 1988; a 30 January 1989 PERSCOM memorandum informing the applicant that he had been considered and not selected for promotion to 1LT (although he should not have been considered due to having been dropped from the rolls in 1988); a 27 August 1993 PERSCOM memorandum informing the applicant that he had been considered and not selected for promotion to 1LT a second time and that he would be discharged (although he should not have been considered due to having been dropped from the rolls in 1988); a 27 August 1993 ARPERSCEN order discharging the applicant from the Reserve as a 2LT; and a 28 July 1997 ARPERSCEN order voiding the discharging of the applicant from the Reserve as a 2LT when it was determined that he did not have an officer status; a NGB Form 22 for the period ending 20 August 1997 showing that the applicant had enlisted in the OKARNG on 27 June 1996 for a period of 6 years and was discharged from the OKARNG on 20 August 1987 and transferred to the IRR as a sergeant, pay grade E-5; and a DA Form 71 showing that at he took an oath of office as a Reserve officer on 
5 August 1997 as a 1LT (this document unsupported by any record of issue of a letter of appointment from PERSCOM or an application for federal recognition as an officer).  

2.  In light of these documents, the promotion to 1LT, USAR, on 19 March 1998 by PERSCOM memorandum with an effective date and DOR of 22 May 1987 is not a valid DOR.  It is, therefore, not possible to establish a PED for CPT from 
22 May 1987 to be 21 May 1991.  The date the applicant was actually promoted to 1LT was 19 March 1998 and it is from that date, according to ROPMA and regulation, that the PED for CPT is established as 20 March 2003.  The applicant was promoted to CPT by a 6 October 1999 PERSCOM memorandum specifying a 4 October 1999 DOR.  There is no evidence of record or rule of regulation that would justify changing the applicant’s 4 October 1999 DOR to 21 May 1991.

3.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

ADMINISTRATIVE DIRECTIVE:  AR-PERSCOM will ensure that all documents attached to this case (evaluations, orders, enlistment and commissioning documents, separation and discharge documents, letters on status, GOMOR, and 15-6 Investigation) will be filed in the applicant’s Official Military Personnel Record performance fiche and that this case Board proceedings will also be filed on the performance fiche. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mm___  __cg___  ___mb_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002072743	
SUFFIX		
RECON		
DATE BOARDED	20020422	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.