PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:               29 July 2003              
	DOCKET NUMBER:      AR2003090973

	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:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Thomas E. O'Shaughnessy, Jr. 		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 that he be released from the Reserve Troop Program Unit enlistment contract to accept promotion to major in the Reserve. 

3.  The applicant states that a special selection board (SSB) overturned the decision of the 1998 major’s board, which passed him over for the second time.  In support of his request he submits a copy of the promotion letter dated 23 April 2003, indicating his selection for promotion to major.

4.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 13 May 1984 and the Ohio Army National Guard effective 1 July 1984.

5.  He was separated from the Ohio Army National Guard effective 13 September 1985 and transferred to the USAR Control Group (Reinforcement).

6.  He attained the rank of captain effective 14 May 1991.

7.  He was considered and not selected for promotion to major by the 1997 and 1998 Reserve Components Selection Boards.

8.  He was discharged effective 16 October 1998, based on his two-time non-selections.

9.  He enlisted in the Reserve as a sergeant, pay grade E-5, effective 28 October 2002.

10.  On 25 November 2002, a Department of the Army SSB selected him for promotion to major under 1998 criteria, with a date of rank of 31 August 1998.

11.  The Reserve Officer Personnel Management Act (ROPMA) provides that an officer who is considered for promotion and fails to be recommended will again be considered by the next board considering officers of his/her branch and grade. If the officer fails to be recommended on this second consideration, he/she will thereafter not be considered for promotion and will be removed from active Reserve status the first day of the seventh month following the final approval of the board report.

12.  Title 10, United States Code, Section 14502 (e) (3) specifies that if a report of an SSB, as approved by the President, recommends for promotion to the next higher grade a former officer whose name was referred to it for consideration, the Secretary concerned may act to correct the military records of the former officer to correct an error or injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

13.  Title 10, United States Code, Section 1552 specifies that the Secretary of a military department may correct any military records of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.

CONCLUSIONS:

1.  The applicant is entitled to have his enlistment contract voided, with no force or effect, reinstatement to his previous commissioned status, and further correction of his military records to show he was promoted to major with a date of rank of 31 August 1998, and a promotion effective date of 25 November 2002, with entitlement to back pay and allowances.

2.  It is further noted that any pay and allowances received by the applicant, as an enlisted man for the period of the now voided enlistment will be offset based on this records correction.

3.  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:

a.  by voiding the discharge of the individual concerned dated 16 October 1998, with reinstatement to his previous Reserve commissioned status;

	b.  that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge, to the date of return to his previous Reserve commissioned status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; 

	c.  that all documents related to his now-voided non-selection for promotion by the 1998 Reserve Components Selection Board and his discharge be expunged from his official military records.

	d.  by voiding his 28 October 2002 enlistment in the Reserve, with no force or effect;

	e.  by showing he was promoted to major with a date of rank of 31 August 1998 and promotion effective date of 25 November 2002, with entitlement to back pay and allowances; and

f.  by offsetting the pay received by the applicant in his now voided enlisted status.

BOARD VOTE:  

__WTM___  _TEO____  _MKP__ GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Paterson_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090973	
SUFFIX		
RECON		
DATE BOARDED	20030729	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.05	
3.		
4.		
5.		
6.