PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  13 June 2002
	DOCKET NUMBER:  AR2001062384

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Donald P. Hupman		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)

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 his enlistment in the Army National Guard (ARNG) be voided so that he can accept his promotion to captain in the Army Reserve as a result of a Standby Advisory Board (STAB) promotion selection.

3.  The applicant states that he was not selected for promotion to captain by the calendar year 1996 and 1997 promotion boards.  His records were incomplete 
so he was considered by a STAB in 2000 and selected for promotion.  In the interim, he had been advised to enlist as a non-commissioned officer while his promotion non-selection was being appealed.  He was enlisted for one year in the ARNG and then understood that he was transferred to the Individual Ready Reserve (IRR).  He has been advised that his enlistment must be voided before his prior discharge as an officer can be revoked and his promotion executed.  
He provides a copy of his two time non-selection notification memorandum, his 
30 December 1998 resignation letter, page 2 of his ARNG enlistment contract, his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period 30 December 1998 through 30 December 1999, his STAB captain promotion memorandum, and a U. S. Army Reserve Personnel Command memorandum, dated 3 July 2000, welcoming him to the IRR as an enlisted member.

4.  The applicant’s military records show that he served as an enlisted member of the Air Force from 5 October 1978, through his honorable discharge on 
1 September 1982.  He served as an enlisted member of the Minnesota ARNG (MNARNG) from 14 January 1987, through his honorable discharge on 20 March 1988.  He served as an enlisted member of the U. S. Coast Guard (USCG) from 21 March 1988, through his honorable discharge on 24 May 1990.  He served as an officer, lieutenant junior grade, in the USCG from 25 May 1990 through his honorable discharge on 25 May 1994.  On 30 August 1995, he was appointed an Army Reserve first lieutenant, Quartermaster Corps, in the MNARNG.  His appointment was federally recognized effective 30 August 1995.  He was not selected for promotion to captain by the 1996 and 1997 promotion boards and notified that he must be separated not later than 1 January 1999.  On 
30 December 1998, he resigned and was honorably discharged as a first lieutenant from the MNARNG. On 31 December 1998, he enlisted in the MNARNG in the pay grade of E-5 for a period of one year.  On 30 December 1999, he was honorably discharged from the MNARNG at his Expiration of Term of Service (ETS).  He currently is discharged and not in the IRR and has no military status.

5.  On 7 October 2000, he was considered by a STAB for promotion to captain in the Reserve, under the 1997 promotion criteria, and he was selected for promotion.  He was notified of the STAB results by a U. S. Total Army Personnel Command memorandum, dated 27 March 2001.  The letter shows that his date of rank would be 25 June 1998.

6.  Title 10, United States Code, Section 14502 (e) (3), specifies that if a report of a Special Selection Board (or STAB), 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.

7.  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 expunction of his enlistment contract, with no force or effect, and further correction of his military records to show he was promoted to captain effective 25 June 1998, with entitlement to back pay and allowances.  It is necessary to void his 1998-1999 enlistment and discharges in 1998 and 1999 and return him to his prior commissioned status and place him in the IRR.  After completion of this promotion action, he will have to reapply for a position in the Army National Guard and request transfer to that position from the IRR.

2.  The applicant did not reenlist or perform any drill from 31 December 1999, although there was no restriction preventing him from doing so and is not, therefore, entitled to any pay or allowances for that period.  However, as a matter of justice, he should be granted retirement points from 31 December 1999 to the present so that his retention and retirement eligibility will not be decremented. He should be paid at a captain’s pay rate for any duty performed from 25 June 1998 through 30 December 1999.

3.  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 for the individual concerned by;

	a.  voiding his 31 December 1998 enlistment in pay grade E-5 in the MNARNG and the subsequent 30 December 1999 discharge from the MNARNG and the Reserve of the Army;

	b.  voiding his 30 December 1998 discharge as a first lieutenant from the MNARNG and the Reserve of the Army;
	c.  placing him in the IRR effective 30 December 1998;

	d.  restoring him to his 16 March 1996 commission as a first lieutenant as an Army Reserve Officer in the Quartermaster Corps;

	e.  promoting him to captain in the Army Reserve with a date of rank and effective date of 25 June 1998;

	f.  paying him the difference in pay between pay grade E-5 and pay grade O-3 for duty performed from 25 June 1998 to the present; and

g.  granting him 50 retirement points per year, without pay, and a prorated number of retirement points, without pay, for partial years, from 31 December 1999 to the effective date of the implementation of these actions.

BOARD VOTE:  

__ca___  ___dh___  __be____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Celia L. Adolphi___
		        CHAIRPERSON

INDEX

CASE ID	AR2001062384	
SUFFIX		
RECON		
DATE BOARDED	20020613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.02 – Revocation of Orders	
2.		
3.		
4.		
5.		
6.