MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 January 2002                   
	DOCKET NUMBER:   AR2001064154

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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:  Reconsideration of his request for monetary compensation for 7 ½ years of active duty as a result of his lost Army career.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the Board misinterpreted his request for separation pay.  The applicant was not requesting a doubling-up of active duty and separation pay which he had already received in 1994.  The separation pay he was requesting was for the termination of his Captaincy in January 2002.  The proper formula for relief as a matter of law should have been the sum of his active duty Captain pay from 15 August 1994 (the date of his separation) through
January 2002 (the date of his separation if he had been non-selected to Major for the second time) plus separation pay at 1 January 2002 for non-selection to Major less the $20,596.68 in separation pay he received on 15 August 1994 due to his non-selection to Captain and income derived from all sources other than separation pay for the period 15 August 1994 through 2 January 2002.  Had the applicant served on active duty since 15 August 1994 with a date of rank to Captain of 1 May 1994, he would be separated after a two-time non-selection to Major in January 2002.  At separation he would receive separation pay.  Given that the applicant was denied a normal career progression over 7 ½ years, equity demands that the unpaid portions be paid.  Further, the applicant did not wait six years before appealing the Officer Evaluation Report (OER).  The OER was rendered in September 1991.  He filed his first appeal with the U. S. Total Army Personnel Command (PERSCOM) on 26 August 1992.  PERSCOM returned it in three weeks without action.  He appealed the OER again on 1 March 1994.  The Officer Special Review Board summarily rejected the appeal.  There exists no rational basis in law or equity for denial of some monetary relief.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 26 April 2001 (docket number AR2000044152).  

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 applicant had, in his earlier OER Board case, specifically requested that if he were selected for promotion he not be restored to active duty.  It is pure speculation to presume that he would not have been promoted to Major had he returned to active duty.  As the applicant noted in his 22 May 2000 letter, given the current shortages of both Captains and Majors, there was a good chance he would have been promoted.  The Board grants that his missing 7 ½ years of active duty would have been a handicap and his chances would not have been as “good” as they would have been had he not had the break in active duty.  However, he had a history of performance as a result of his post-separation U. S. Army Reserve service.  His promotion to Major would not have been beyond the realm of possibility.  Even had he not been selected for promotion to Major, he would have had recourse to the Board.  The Board concludes that it would not be equitable to grant the requested relief of monetary compensation for a lost career that the applicant made a personal decision not to attempt to continue.

2.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

3.  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

__gdp___  __wtm___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064154	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.