ABCMR Memorandum of                                                             AR2002078006
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       .

	BOARD DATE:           13 February 2003                 
	DOCKET NUMBER:   AR2002078006

	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. Lee Cates | | Analyst

  The following members, a quorum, were present:

| Mr. Raymond V. O'Connor, Jr. | | Chairperson
| Ms. Gail J. Wire | | Member
| Mr. Robert J. Osborn, II | | 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:  That his records be corrected to show he was reinstated to pay grade E-7.

APPLICANT STATES:  That the revocation of his promotion to E-7 was accomplished 18 months after the fact and only because he ended his initial Army Guard Reserve (AGR) tour.  Further, he indicates that the promotion order “Solders who are promoted automatically incur a 2-year AGR obligation prior to voluntary non-disability retirement” and contends that he did not retire or request retirement.  He contends he should have been notified he incurred a 2-year obligation by phone or e-mail.  He further contends he did not refuse the obligation as suggested in the memorandum granting De Facto status.  He indicates that the promotion order is not clear to him now because he received the order while in the hospital with severe head trauma and doesn’t know what happened to his copy and has not seen one since.  He provides a copy of the promotion and revocation orders; a series of informal e-mail’s; various medical documents concerning his accident and subsequent treatment; an extract of AR 140-158 showing requirement to reenlist or extend enlistment in order to meet the conditions of promotion or that the promotion will be revoked if they do not; and, other historical military documents.

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

On 15 August 2000, while serving in the USAR Control Group (AGR), the applicant was conditionally promoted to pay grade E-7, effective 1 September 2000 by TAPC-MSL-E Orders 228-49.  The conditions were: (1) Promotion is not valid and it will be revoked if he is not in a promotable status on the effective date of promotion and (2) Soldiers who are promoted automatically incur a 2-year AGR obligation prior to voluntary non-disability retirement.

The applicant requested separation from the AGR Program and transfer to a regular USAR unit upon the expiration of his term of service, 12 June 2002.

E-mail traffic indicates the applicant’s obligation concerning his conditional promotion was explained to him on more than one occasion.

On 5 March 2002, Orders 064-19 revoked so much of Orders 228-49 as pertained to the conditional promotion of the applicant.  

On 7 March 2002, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command recommended disapproval of De Facto status for the applicant.  He noted the conditional requirements contained in paragraph 4-17f, Army Regulation 140-158; that a soldier’s promotion will be revoked if within 30 days of the effective date of promotion, the soldier fails or refuses to comply with the ETS adjustment action based on the incurred AGR obligation; and, that the soldier was given the opportunity to reenlist or extend and refused to do so.

The soldier is currently serving in a Troop Program Unit in the pay grade of E-6.

Army Regulation 140-158 provides, in pertinent part, the promotion policy for AGR soldiers.  Paragraph 4-16d indicates, “Those promoted to SFC through SGM will incur a 2-year obligation to remain on AGR status.”  Paragraph 4-17d indicates, “Soldiers who, on promotion, have insufficient time remaining on their current term of service agreements must, in order to be promoted, start the action to extend their current agreements.”  A soldier’s promotion will be revoked if the soldier fails or refuses to comply with the ETS adjustment action based on the incurred AGR obligation when required. 

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 evidence presented by the applicant clearly shows the conditions of the promotion and that he did not meet the service obligation of his conditional promotion.

2.  The applicant was given the opportunity to reenlist or extend his term of service in the AGR program and failed to do so.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

__GJW___  _RJO____  _RVO__  DENY APPLICATION

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

INDEX

CASE ID | AR2002078006
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030213
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 20020305
DISCHARGE AUTHORITY | AR 140-158
DISCHARGE REASON | Failure to meet conditions of a conditional promotion
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 129
2. |
3. |
4. |
5. |
6. |