MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 April 2003
	DOCKET NUMBER:   AR2002078303

	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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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 he be allowed to accept his promotion to the rank of major.

APPLICANT STATES:  In effect, that he decided in the Spring of 2001 that he wanted to return to active duty to serve his country full-time.  His request was approved and when asked when he wanted to enter active duty, he responded that he desired to return as soon as possible.  He continues by stating that he could have waited until after the Reserve major's board met, but he wanted to start as soon as he could.  He goes on to state that he returned to active duty in January 2002 and received his Reserve promotion packet in February.  He contacted officials at the Army Reserve Personnel Command (ARPERSCOM) to inquire if he had to complete the packet now that he was on active duty and was informed that he did because he had been on active duty less than 6 months prior to the board.  He continues by stating that he spent a great deal of time and energy putting his packet together and was selected by the Reserve Component Selection Board for promotion to the rank of major effective 29 May 2003.

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

He was commissioned as a United States Army Reserve (USAR) military intelligence second lieutenant on 19 May 1990.  He entered active duty on 30 June 1990 and served until he was honorably released from active duty in the rank of first lieutenant on 15 August 1994, due to non-selection for permanent promotion.  He was transferred to the USAR Control Group (Reinforcement) and was promoted to the rank of captain on 6 July 1996.  He was ordered to active duty on 29 January 2002 for a period of 3 years under the provisions of Title 10, United States Code, section 12301 and his date of rank was adjusted to 19 May 1997.  

On 4 March 2002, a Department of the Army Reserve Components Selection Board convened and selected the applicant for promotion to the rank of major effective 29 May 2003.

In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) Promotions Branch, which opined, in effect, that the applicant was not eligible to accept the promotion because he had entered active duty before the promotion board results had been approved.  Officials at the PERSCOM recommended that his request be denied.  

The advisory opinion was provided to the applicant for comment and the applicant responded to the effect that after 6 ½ years of hard and successful work as a captain, a group of senior Army officers evaluated his records and determined that he had developed enough to progress to the rank of major and that the dates he returned to active duty should not be the issue in this case.

Army Regulation 600-8-29 prescribes policies and procedures governing the promotion of Army officers on the Active Duty List (ADL).  It provides, in pertinent part, that in order for an officer to be considered by an active duty board, an officer must be on the ADL on the day before the board convenes.  Commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the boards convenes are not eligible for consideration by a promotion selection board.  Officers recommended and approved for promotion are placed, in order of their seniority on the ADL, on promotion lists published by the PERSCOM.  Commissioned officers, other than Regular Army (OTRA) officers, who entered their current tour of active duty after 30 September 1981 and decline a Regular Army appointment upon promotion to the rank of major will be released from active duty. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  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.

2.  At the time the applicant was considered by the Reserve Component Selection Board, he was serving on active duty and had been integrated onto the ADL.  Accordingly, he was only eligible to be considered by an active duty board, which considers officers on the ADL.

3.  The Board has noted the applicant's contention that the issue in this matter is the decision of a group of senior Army officers (promotion board members) who determined that he should be serving in the rank of major and finds that it is without merit.  The issue in this case is whether or not he was eligible for consideration by a Reserve Component Selection Board at a time when he had been integrated onto the ADL.  Unfortunately, the applicant was not eligible for consideration by that board and is not eligible to accept the promotion.

4.  By the applicant's own admission, he was allowed to select when he wanted to enter active duty and he could have elected to wait until after the promotion board results were released.  The applicant elected not to wait and as such, terminated any entitlements he had to the promotion when he was added to the ADL.

5.  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

__rtd  ___  __ym____  __jhl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002078303	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000/PROM	
2.		
3.		
4.		
5.		
6.