RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 NOVEMBER 2003                  
	DOCKET NUMBER:   AR20030884988

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that he be granted the proper time in service and time in grade credit for the period April 1989 through August 1993.

2.  The applicant states that in April 1989 he was informed that he was honorably discharged from the U.S. Army Reserve (USAR), which was untrue, and that in fact he was transferred to the Individual Ready Reserve as a Captain and served from 3 April 1989 through 20 August 1993, for which he should receive credit.

3.  The applicant provides copies of his Chronological Statements of Retirement Points, and copies of his Leave and Earnings Statements (LES) from April 1989 through November 1989.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on             20 August 1993.  The application submitted in this case is dated 12 March 2003. 

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 31 March 1978, he enlisted in the U.S. Army Reserve.  He was ordered to initial active duty for training (ADT) on 14 April 1978, and honorably released from ADT back to the USAR on 1 September 1978, in the pay grade of E-4 with the Military Occupational Specialty (MOS) 91B.  

4.  On 10 September 1979, he enlisted in the Alabama Army National Guard in the pay grade of E-5, in the Simultaneous Membership Program while enrolled in the Reserve Officer Training Corps (ROTC) at Columbus College and Auburn University.  On 6 June 1980, he completed the 4 years of ROTC instruction but was not commissioned.  On 22 August 1983, he was honorably discharged from the Alabama Army National Guard. 

5.  On 23 August 1983, he was commissioned as a Second Lieutenant (2LT) in the USAR, and ordered to active duty on 25 September 1983, for a period of three years.  On 8 January 1986, the Army Board for Correction of Military Records (ABCMR) in responding to a request from the applicant to correct his commissioning as a USAR officer, directed that his commission be corrected to 
6 June 1980 as a 2LT in the USAR and the ARNG, since he was a member of the ARNG in 1980.  His 22 August 1983, NGB Form 22 was corrected to show that he had been discharged as a 1LT from the Alabama Army National Guard on 24 September 1983, the day before he entered active duty as a USAR officer. 

6.  As a consequence of the adjusted time in grade as a 1LT on 18 September 1986, the U.S. Army Military Personnel Center (MILPERCEN) promoted him to Captain with a 1 August 1985 effective date and date of rank. 

7.  On 31 January 1987, he was released from active duty as a CPT by reason of expiration of term of service and transferred to a USAR TPU (Troop Program Unit), the 87th U. S. Army Maneuver Area Command (MAC) in Birmingham, Alabama.  

8.  The applicant attended the Joint Firepower Control Course at the U. S. Air Force Air Ground Operations School (USAFAGOS), Hurlburt Field, Florida, from 14 March 1988 through 1 April 1988.  A letter from the USAFAGOS Army Colonel Deputy Commander  Colonel stated that the applicant, “failed to attain the minimum academic standard for successful completion of the course.  …(The applicant) had the lowest scores attained by any student in the history of the USAFAGOS.  …(The applicant) does not possess the drive and win attitude to be successful as an Army Officer.  …We have trained hundreds of reserve component soldiers in the AGOS…(and the applicant) is an exception to the high quality of reserve component soldiers who have attended courses at AGOS.”  

9.  On 27 April 1988, the applicant’s commander charged him with two unexcused absences from a unit Rescheduled Training (RST).  The letter notified the applicant that he had 15 days after receipt of the letter to request his absences be excused.  On 16 May 1988, the applicant responded by letter that he had not attended the RST due to his vehicle being temporarily out of service.

10.  On 13 May 1988, the applicant’s commander requested he be involuntarily separated under Army Regulation 135-178, paragraph 2-11, for substandard performance of duty.  This was based on his performance at the USAFAGOS and his “apathy, defective attitudes, or other character disorders, including inability or unwillingness to expend effort.”  The applicant was notified of the intent to separate him and given options to resign, request a hearing by a board of officers, or transfer to the Retired Reserve.  

11.  The applicant requested to appear before a board of officers with military counsel, and on 17 September 1988, a board was conducted at the 87th MAC in Birmingham, Alabama.  The board recommended that the applicant be involuntarily separated from the Army with an honorable discharge under Army 
Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers), paragraph 2-11 (substandard performance of duty), subparagraph e (failure to meet standards in a course of instruction at a service school due to academic deficiencies), and subparagraph g (apathy).  

12.  On 3 April 1989, he was discharged as a CPT from the USAR, by Headquarters, Second U. S. Army, orders number 118-3, dated 3 April 1989, under authority of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).  Army Regulation 140-10 does not provide authority for discharge, only transfer.  Army Regulation 135-175 is the correct authority for discharge.

13.  The applicant enlisted in the USAR on 20 August 1993, as a Sergeant, pay grade E-5, for a 3 year term of service.  He reenlisted in the USAR on 2 February 1997, for a 6 year term of service.  He served a period of active duty for training at Fort Bragg from 13 March 1997 through 17 September 1997.  On 13 October 1998, he was promoted to Staff Sergeant, pay grade E-6.

14.  On 30 September 2000, under orders 304-035, the Georgia Army National Guard (GAARNG) appointed the applicant a CPT, Infantry, in the GAARNG, effective 27 September 2000.  On 17 February 2001, under National Guard Bureau orders 15, the applicant was given federal recognition effective                 27 September 2000.  

15.  On 3 March 2001, he was ordered to active duty with duty in Tuzla, Bosnia-Herzegovenia.  On 30 October 2001, he was released from active duty and returned to HHC, 48th Infantry Brigade, GAARNG.  He was honorably separated from the GAARNG on 5 February 2002, and transferred to the USAR Individual Ready Reserve (IRR).

16.  On 25 April 2002, the ABCMR responding to a request from the applicant that he be given consideration for promotion to major in the USAR, directed that a date of rank for Captain needed to be computed based on his USAR service as a captain from 1 August 1985 through 2 April 1989 and the date he was commissioned as a captain on 27 September 2000.  His date of rank to captain was adjusted to 25 January 1997.

17.  In the processing of this case an advisory opinion was obtained from the U.S. Army Reserve Command, Fort McPherson, Georgia, which states that the applicant was separated from the USAR on 3 April 1989, subsequently enlisted in the USAR, and then reappointed in the Army National Guard where he was granted Federal Recognition.  The opinion recommended that the applicant’s status remain as a captain in the USAR.

18.  The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In his rebuttal he states that he was transferred to the IRR, and served from 3 April 1989 to 20 August 1993, and feels he should be credited with that time, and that the date of his Federal Recognition was 27 September 2000 and not 29 April 2002.   

19.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers) states, in pertinent part, it requires 7 years time in grade (TIG) as a CPT to be considered for mandatory promotion to MAJ or a minimum of 4 years TIG to be eligible for consideration for a unit vacancy promotion.  Selection for a unit vacancy promotion is based on a unit vacancy existing at the next higher grade and selection by the unit commander of the best qualified available officer.

DISCUSSION AND CONCLUSIONS:

1.  A board of officers recommended that the applicant be involuntarily separated from the Army with an honorable discharge, which was accomplished on 3 April 1989.  His discharge document does not indicate he was transferred to the IRR.  

2.  There is no evidence in the available records to substantiate the applicant’s claim that he was transferred to the IRR, and served there from 3 April 1989 through 20 August 1993, therefore the applicant is due no additional time in service or time in grade credit.  

3.  Records show the applicant should have discovered the error or injustice now under consideration on 20 August 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 August 1996.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __MDM__  __BJE __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003088498	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	113.00	
2.		
3.		
4.		
5.		
6.