RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  16 December 2003
	DOCKET NUMBER:  AR2002082002

	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. Samuel A. Crumpler		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. John N. Slone		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, in effect, that his enlistment be voided and correction to his promotion effective date and date of rank for captain.

2.  The applicant states that due to no fault of his own he was passed over twice for promotion to captain while serving in a captain’s billet.  If he had been selected for promotion by the 2000 promotion board his unit would have immediately promoted him to captain.  He also states that because he was passed over he was forced to resign on 1 November 2000 as an officer and enlist as a specialist, pay grade E-4.  On 4 June 2002, a special selection board (SSB) reversed the findings of the 2000 [sic] promotion board and on 1 August 2002, he was reinstated as a captain and promoted.  

3.  The applicant provides copies of his Federal recognition orders for captain, his promotion eligibility date and non-selection letters for captain, his separation and transfer orders, his exception to policy request for enlistment, his request and his battalion’s request for an SSB, his enlisted contract and enlistment extension and his letter to this Board in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show that he was appointed in the Reserve as a second lieutenant effective 17 May 1991.  He was promoted to first lieutenant effective 31 May 1994 and later appointed in the Vermont Army National Guard (VTARNG).

2.  Based on the required 5 years time in grade, his maximum time in grade (promotion eligibility date) for promotion to captain was 30 May 1999.

3.  He was assigned to a captain’s position effective 26 October 1999, with a troop program unit.

4.  He was considered and not selected for promotion to captain by the 1999 and 2000 Reserve Components Selection Boards (RCSB’s).  The President approved the board results on 18 April 2000 and 20 March 2001, respectively.

5.  He was separated from the VTARNG effective 1 November 2000, based on his two non-selections.

6.  He enlisted in the VTARNG in pay grade E-4, effective 21 November 2000.  He executed an extension contract for 3 years effective 15 October 2001.

7.  Departmental officials with the Office of Promotions, Reserve Components, Humans Resources Command determined that the applicant was entitled to promotion consideration by an SSB under 1999 criteria based on incomplete/missing records.  On 12 December 2001, a Department of the Army SSB convened and selected the applicant for promotion to captain under 1999 criteria.  The applicant was issued a promotion memorandum dated 4 June 2002, showing his promotion effective date as 18 April 2000, the date the President approved the 1999 RCSB and the earliest date the officer can have under the Reserve Officer Personnel Management Act.  The memorandum stated the effective date of promotion will be the later of the promotion eligibility date or the date Federal recognition is extended in the higher grade.  

8.  He was appointed in the VTARNG as a captain and extended Federal Recognition effective 1 August 2002.

9.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies officers selected by an SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  The regulation further specifies that the effective date that officers with a promotion eligibility date prior to the SSB would be the adjourning date of the mandatory board or the adjourning date of the SSB criteria by which recommended.

10.  Title 10, United States Code, section 14502, e(1), specifies that an officer who is placed on a promotion list as a result of recommendation by an SSB shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered him or which did consider him.

11.  Title 10, United States Code, section 14502, e(2) specifies that promotion as a result of recommendation of an SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade as the officer would have had if the officer had been recommended for promotion to that grade by the mandatory selection board which should have considered the officer or which did consider the officer.

12.  Nation Guard Bureau (NGB) Regulation 600-100, establishes the policies and procedures for promotion of officers in the ARNG.  Paragraph 2-2b specifies that the effective date of Federal recognition is the date on which an officer executes his/her oath of office.  However, until Federal Recognition in the new rank is extended by the NGB, the individual cannot be paid for the higher rank.  The NGB has advised in similar cases such as this that the approval process normally takes approximately 3 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is entitled to voiding of his enlistment contract dated 21 November 2000 and the extension, dated 15 October 2001, with no force or effect, in the VTARNG.  He has been appointed in the VTARNG as a captain in his previous commissioned status.

2.  The applicant is also entitled to adjustment to his date of rank for captain to 26 October 1999, the date he was assigned to a captain position.  Pertinent regulations provides for promotion as a result of an SSB with entitlement to the same date of rank the officer would have been eligible for had the officer been recommended to that grade by the mandatory selection board.

3.  The applicant’s promotion effective date would be the date he should have been extended Federal Recognition.  The applicant was granted Federal Recognition effect 1 August 2002, subsequent to his selection by an SSB.  Pertinent laws and regulations specify that promotion as a result of recommendation by an SSB, upon such promotion, shall have the same promotion effective date for pay and allowances of that grade had the officer been recommended by the mandatory selection board.  Had the applicant been selected by the 1999 RCSB, and since he had been assigned to a captain’s position effective 26 October 1999, he should have been extended Federal recognition as early as 18 July 2000, 3 months after the approval (18 April 2000) date of the 1999 RCSB.

BOARD VOTE:

__sc___  __sp___  __js____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends, insofar as records of the Vermont Army National Guard are concerned, that the Adjutant General of the State of Vermont correct the records of the individual concerned:

a.  by voiding the discharge of the individual concerned dated 1 November 2000, 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 1999 Reserve Components Selection Board and his discharge be expunged from his official military records;

	d.  by voiding his 21 November 2000 enlistment and his 15 October 2001 extension in the Vermont Army National Guard, with no force or effect;

e.  by showing that Nation Guard Bureau Orders 251 AR, dated 18 September 2002, as pertains to the appointment of the individual concerned, is null and void; 

f.  by showing that appointment and Federal Recognition in the rank of captain was issued by the National Guard Bureau with a promotion effective date of 18 July 2000 and date of rank of 26 October 1999; and

g.  by offsetting the pay received by the applicant in his now voided enlisted status and payment of any difference that may be due.

		__Samuel A. Crumpler_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002082002	
SUFFIX		
RECON		
DATE BOARDED	20031216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.	131.05	
4.		
5.		
6.