MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           16 October 2003 
		DOCKET NUMBER:  AR2002079339

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry		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:  Promotion reconsideration to the rank of captain beginning in 1993.

APPLICANT STATES:  In effect, that he was not properly considered for promotion to the rank of captain in the United States Army Reserve (USAR) beginning in 1993, while he was serving dual status as a commissioned officer in the Individual Ready Reserve (IRR) and was at the same time in the Regular Army in an enlisted status.   

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

He was commissioned as a USAR second lieutenant upon completion of the Reserve Officer Training Corps (ROTC) Program on 7 June 1986.  He was a college graduate at the time he was commissioned.

On 1 April 1987, he enlisted in the Regular Army for a period of four years and training as an electronic warfare/signal intelligence voice interceptor (linguist).  His enlistment contract indicates that he was dual status, in that he retained his USAR commission while serving in the Regular Army.

He was promoted to the rank of first lieutenant (1LT) in the USAR on 6 June 1989, while serving on active duty in the pay grade of E-4.

He was promoted to the rank of E-5 on 1 September 1990 and to the pay grade of E-6 on 27 September 1994.  He remained on active duty until 8 April 1999, when he was honorably discharged on the expiration of his term of service (ETS).  He was transferred to a USAR Troop Program Unit in Illinois to serve in the rank of 1LT and subsequently transferred to a unit in Colorado.

On 25 June 2002, in response to a congressional inquiry on behalf of the applicant in which he sought assistance in obtaining promotion reconsideration to the rank of captain, officials at the Total Army Personnel Command (PERSCOM) in St. Louis, Missouri, informed the congressional representative that the applicant was considered by the 2001 Captain Reserve Component Selection Board and was non-selected because his records did not indicate he had a baccalaureate degree.  However, because the applicant was commissioned in 1986, he did not require a degree and thus was entitled to reconsideration by a special selection board.  Additionally, he was informed that the applicant should have been considered for promotion by selection boards beginning in 1993 and was advised that the applicant should apply to this Board for reconsideration by all boards beginning in 1993. 

In a subsequent letter from those same officials, the applicant was informed that the congressional representative had been given partially incorrect information, in that, further research revealed that he had in fact been considered for promotion to the rank of captain in 1993 and 1994.  The officials indicated that the          non-select letters were never placed in his Official Military Personnel File (OMPF) because of his dual status and that he should have been discharged after his second non-selection for promotion on 8 August 1994.  Reconstructed non-select letters were provided to the applicant on 29 November 2002, which contained the signature of the current Chief, Office of Reserve Component Promotions.

Meanwhile, on 20 February 2002, the applicant plead guilty in a civil court to sexual assault on a child/position of trust, a class IV felony and unlawful sexual contact, a class one misdemeanor.  He was sentenced on 17 June 2002

In August 2002, an investigation was conducted under the provisions of Article 32, Manual for Courts-Martial, in regards to his civil conviction.  As a result of the investigation, the applicant received an administrative reprimand from a general officer for misconduct.  The reprimand was referred to the applicant and he declined to submit matters in his own behalf. 

The applicant was selected for promotion by a Department of the Army Special Selection Board that was approved on 4 March 2003.  A memorandum was published on 24 April 2003, which promoted the applicant to the rank of captain; effective 14 April 2003.  However, on 5 June 2003, his promotion was revoked.

In the processing of this case, a staff member of the Board contacted officials at the PERSCOM, Office of Reserve Components Promotions to ascertain the status of the applicant's promotion.  Officials at the PERSCOM informed the staff member that the applicant's case had been referred to a Promotion Review Board (PRB) to determine if he should be removed from the promotion list to captain, based on his having received an administrative reprimand and a civil felony conviction.  The results of that board have not been finalized as of this date.

A review of the applicant's records show that he has continued to actively serve in the USAR since his discharge from the Regular Army in 1999 and that he has attended military schooling on at least one occasion in 2002.  

Army Regulation 135-175 serves as the authority for the discharge of USAR officers from their status as Reserves of the Army.  It provides, in pertinent part, that members of the Army Reserve will be removed from an active status, with or without their consent, regardless of the length of commissioned service, for failure to be selected for promotion after second consideration by a Department of the Army Reserve Components selection board. 

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 Board has noted the applicant's contention that he was not considered for promotion to the rank of captain by the 1993 and 1994 Reserve Component Selection Boards and finds it to be without merit.  The applicant was considered by those boards and was not selected.

2.  However, the non-selection notifications were never placed in his OMPF and when he was discharged from the Regular Army, he was erroneously accepted back into the USAR as a 1LT and was allowed to actively participate.

3.  While many errors were made in the applicant's case, the fact remains that he should have been discharged from the USAR after his second non-selection for promotion and should not have been transferred to the USAR upon his REFRAD. 

4.  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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mb ___  __hof ___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002079339	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/10/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  313	131.0300/FAIL TO CONSIDER	
2.		
3.		
4.		
5.		
6.