PROCEEDINGS

	IN THE CASE OF:         

	BOARD DATE:               6 June 2002
	DOCKET NUMBER:      AR2001065057

	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. Beverly A. Young 		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O'Shaughnessy		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, in effect, that he be given credit for the time he spent in the Retired Reserve from 1 June 2000 through 9 October 2001 and that his mandatory removal date (MRD) of 15 May 2005 be adjusted.

3.  The applicant states that he had submitted all paperwork, Officer Evaluation Reports (OER), and photos, but they were not placed in his official microfiche before the promotion board.  He states that the U.S. Army Reserve Personnel Command (AR-PERSCOM) corrected this error on or about 1 May 2000, but he was placed in the Retired Reserve until the results of the Standby Board were released.  He further states that orders were issued which assigned him to the Retired Reserve in June 2000 and the orders were revoked because he was selected for lieutenant colonel.  He contends that he lost 16 months of active drill time while he was in the Retired Reserve.  He had been assured that, if selected to pay grade O-5, adjustments would be made to his 15 May 2005 MRD.  In support of his application, he submits a supplemental letter, a memorandum notifying him of promotion consideration, reassignment and revocation orders.

4.  The applicant’s military records show that he initially served in the U.S. Navy and the U.S. Navy Reserve from April 1971 to February 1976.  He was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) on 15 May 1977 in the rank of second lieutenant.  He was ordered to active duty on 12 July 1978.  The applicant was promoted to major on 5 June 1992.

5.  Orders published by the AR-PERSCOM, dated 27 April 2000, transferred the applicant from his Troop Program Unit (TPU) position to the Retired Reserve effective 1 June 2000.

6.  The applicant was recommended for promotion to lieutenant colonel by a 2001 Department of the Army Standby Advisory Board based on the 1999 selection criteria.

7.  Orders published by the AR-PERSCOM, dated 9 October 2001, voided the applicant's reassignment to the Retired Reserve and transferred him to his previous TPU position in the USAR, effective 9 October 2001.

8.  The applicant’s RPAS Detail Points shows that he received 12 active duty points for Annual Training for the period 15 May 2000 through 26 May 2000.  The statement of Detail Points also shows that, after reinstatement in an active status in the USAR on 9 October 2001, he attended drill on 13 and 14 October 2001.

9.  Section 14502a (1) of Title 10 of the United States Code states in the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for the selection of promotion from in or above the promotion zone by a mandatory promotion board convened under section 14101(a) of this title because of administrative error, the Secretary concerned shall convene a special selection board under this subsection to determine whether such officer or former officer should be recommended for promotion.

10.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers) states in paragraph 3-19a that officers and warrant officers who have either failed selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board as appropriate.  Section 3-19 c states "These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records – (1) Through error, were not submitted to a mandatory promotion selection board for consideration."  Section 3-19 d(1) further states that "Records of officer or former officers will be referred for special selection board action when the Office of Promotions Reserve Components (RC) determines the following: (1) An officer was eligible for promotion consideration; however, the officer's records were, through error, not submitted to a mandatory promotion selection board."

11.  Chapter 1407 of Title 10 of the United States Code governs special selection boards and correction of errors.  Subsection 14502e(2) states that an officer who is promoted to the next higher grade as the result of a special selection board 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, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which would have considered, or did consider, the officer.

CONCLUSIONS:

1.  The applicant was transferred to the Retired Reserve effective 1 June 2000 in the rank of major.

2.  The applicant was subsequently considered by and recommended for promotion to lieutenant colonel by a 2001 DA Standby Advisory Board.  

3.  As a result, orders were published on 9 October 2001 which voided his transfer to the Retired Reserve and restored him to an active status effective 9 October 2001.

4.  The Board finds that, as a matter of equity, that the applicant should receive proper pay, retirement point credit and service creditable for retired pay for the period 1 June 2000 through 8 October 2001.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing the individual concerned served in an active status in the USAR during the period 1 June 2000 through 8 October 2001; and 

	b.  by crediting him with 75 retirement points [48 points for Inactive Duty Training (IDT), 12 points for annual training (AT) and 15 points for membership] and a qualifying year for retirement purposes for the retirement year (RY) beginning on 15 May 2000 and ending on 14 May 2001; and 

	c.  by crediting him with 4 IDT points per month for the months of June 2001 through September 2001 and by crediting him with the appropriate number of membership points for the retirement year beginning on 15 May 2001 through 8 October 2001, inclusive of any retirement points earned 9 October 2001 through 14 May 2002.

2.  That, upon completion of the corrections specified in paragraphs 1a through c, above, the Defense Finance and Accounting Service (DFAS) audit the Reserve pay account of the individual concerned to determine pay to which he is entitled for the period 1 June 2000 through 8 October 2001, if any.  Further, that DFAS pay the individual concerned any monies due him, if any.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

SK_____  JTM_____  TEO_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Stanley Kelley________
		        CHAIRPERSON

INDEX

CASE ID	AR2001065057	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	135.0000	
2.		
3.		
4.		
5.		
6.