RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:  AR2003090738

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lawrence Foster		Member	
	Ms. Margaret V. Thompson		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 validation of his 1999 promotion selection to captain.

2.  The applicant states that in January 1999 he was in the Individual Ready Reserve (IRR) and started his application to reenter the Reserve.  He was advised that he needed to resign his commission from the IRR prior to reentering the Reserve and he did.  In September 1999 when he received his notification of promotion to captain he advised his recruiter.  His recruiter advised him the promotion would be taken care of when he started his Reserve duty.  He has made numerous inquiries and was advised nothing could be done and he would have to wait for promotion consideration to captain by the 2004 promotion selection board.

3.  The applicant provides copies of promotion orders for first lieutenant, his Notification of Promotion Status memorandum, his discharge orders, his Applicant Medical Prescreening Form, and an electronic mail correspondence from the Total Army Personnel Command (PERSCOM).

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he was appointed in the Reserve, Army Medical Specialist Corps (SP) Branch, as a second lieutenant effective 4 February 1992, with 8 months and 17 days constructive service credit (CSC).  He entered on active duty for 2 years the same day.

2.  The applicant was promoted to first lieutenant effective 17 May 1993.

3.  The applicant was separated from active duty effective 31 August 1994, for completion of required active service and transferred to the USAR Control Group (Reinforcement).

4.  The applicant was considered and not selected for promotion to captain by the 1998 Reserve Components Selection Board (RCSB).  He was issued a Notification of Promotion Status memorandum dated 29 July 1998.  The memorandum advised him of this non-selection and eligibility for consideration the next year.

5.  The applicant was considered and selected for promotion to captain by the 1999 RCSB that adjourned on 5 February 1999.

6.  The applicant was discharged from the Reserve effective 8 March 1999 at his request by reason of unqualified resignation.  There is no documentation in the available record, or provided by the applicant, to explain the reason for his unqualified resignation.  His medical prescreening form shows that the applicant was beginning his reappointment process as early as 26 May 1999.

7.  The applicant was appointed in the Reserve, SP Branch, as a first lieutenant effective 31 August 2000, with 3 years CSC.  Based on a one-year overage of CSC his date of rank was adjusted to 31 August 1999.

8.  The applicant was issued a Notification of Promotion Status memorandum dated 8 September 1999, indicating his selection for promotion to captain.  The memorandum advised the applicant that to be promoted he must remain in an active status and otherwise meet the promotion eligibility criteria set forth in Army Regulation 135-155.  Failure to comply may result in his removal from the selection list.

9.  The Chief, Special Actions Branch, Office of Promotions, Reserve Components, PERSCOM, expressed the opinion that the applicant was recommended for promotion to captain by the 1999 RCSB and the President approved the board on 18 August 1999.  Prior to the approval of the board the applicant resigned his commission on 8 March 1999.  In accordance with Army Regulation 1351-55, paragraph 2-6, an officer removed from an active status before promotion action is finalized will be removed from the promotion list.  Since the applicant resigned his commission prior to finalization of the promotion action he was not eligible for the promotion.  Prior to discharge the applicant served in the SP Branch.  He was reappointed in the SP Branch as a first lieutenant with one-year overage of CSC on 31 August 2000.  Based on this appointment his date of rank was adjusted to 31 August 1999.  Army Regulation 135-155, paragraph 3-7, states that if an officer is appointed in a specialty branch with CSC, prior service spent in an active status as a commissioned officer will not be counted.  Based on the adjusted date of rank and five years time in grade requirement the applicant's promotion eligibility date to captain is 30 August 2004, and the 2004 RCSB is the earliest board he is eligible to be considered by.

10.  The opinion also stated that since the applicant previously served in the SP Branch it was recommended that he apply to the Reserve Appointments Branch and request that his appointment be changed to reflect appointment without CSC.  If his appointment is changed he will have an earlier adjusted date of rank and will be eligible for promotion consideration by a special selection board.  If the applicant's appointment is changed his case should be returned to the Office of Promotions, Reserve Components, PERSCOM for special board consideration.  In view of the facts presented, it was recommended the applicant's request be disapproved.

11.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 25 September 2003.  He did not respond.

12.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation provides promotion will be made only on the recommendation of a promotion selection board.  An officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list.  Removal will not be considered a non-selection.  If returned to an active status, the office's name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.  The regulation also provides that an officer who twice fails selection for promotion to the grade of captain must be removed from an active status.

13.  Army Regulation 135-100, prescribes the policies and procedures for appointment of Reserve officers.  The regulation provides that former commissioned officers will be appointed in the highest grade for which they qualify.  If an officer is appointed in a specialty branch with CSC, prior service spent in an active status as a commissioned officer will not be counted.  The regulation also provides that a former officer who had previously been removed from an active status for failing selection for promotion is ineligible for appointment.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to validation of his 1999 promotion selection to captain.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions that he was selected for promotion to captain and never promoted have been noted.  However, the applicant was considered and selected for promotion to captain by the 1999 RCSB.  The applicant resigned his commission in the Reserve on 8 March 1999, prior to the President approving the 1999 RCSB results on 18 August 1999; therefore, he was not eligible for the promotion.  He did not meet all of the promotion requirements, i.e., being in an active status.

3.  There is no documentation in the available record, or provided by the applicant, that shows why he elected to resign his original appointment effective 6 March 1999.  There is no evidence of recruiter error.  It is possible that after his first nonselection for promotion, and to avoid a possible second nonselection, it was considered prudent for him to resign at that time and start the process again.

4.  The applicant was subsequently appointed in a SP Branch, a branch he previously served in as a first lieutenant (highest grade previously held) with an adjusted date of rank of 31 August 1999.  Based on the required 5 years time in grade the 2004 RCSB is the earliest board he is eligible to be considered by for promotion to captain.

5.  The applicant is advised that since he previously served in the SP Branch, it is recommended he apply to the Reserve Appointments Branch and request that his appointment be changed to reflect appointment without CSC.  If his appointment is changed he will have an earlier adjusted date of rank and will be eligible for promotion consideration by a special selection board.  The applicant should submit his request for a change to his appointment to Commander, Army Human Resources Command, Attn: AHRC-OPD-RA, 9700 Page Avenue, St. Louis, Missouri 63132-5200.

5.  The applicant is also advised that if his appointment is changed he should submit his request for a special selection board to Commander, Army Human Resources Command, Special Actions Branch, Office of Promotions, Reserve Components, Attn: AHRC-MSL-NS, 9700 Page Avenue, St. Louis, Missouri 63132-5200 for special board consideration.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ro___  ___lf___  __mt____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090738	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.