PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 March 2003
           DOCKET NUMBER:  AR2002079946

	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	
	Mr. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 reconsideration of his earlier appeal to correct his  military records by revoking his discharge from the United States Army Reserve (USAR); effecting his promotion to colonel (COL); and extending his mandatory removal date (MRD). 

3.  The applicant states, in effect, that had he been before a promotion board using the proper year criteria in a timely fashion, he would have been identified for promotion earlier.  He claims that had he been identified for promotion at the proper time, a waiver of his MRD would have surely been approved.  He further states that the Army erred in not following proper procedure, which resulted in an injustice being served upon him by denying him the ability to serve his country, and further causing him past, present, and future financial injustice.  

4.  The Memorandum of Consideration (MOC) of the Board’s 21 May 2002 review of the case (AR2002067465) is incorporated herein by reference as if wholly set forth.

5.  The applicant’s record shows that he was appointed a second lieutenant on 
9 September 1969, served on active duty until 1 April 1983, at which time he was released because of his non-selection for promotion.  He transferred to the USAR and continued to serve in an active Reserve status in some capacity until being discharged on 9 December 1997, upon reaching his MRD as a lieutenant colonel (LTC).  

6.  In August 2001, the applicant was notified that he had been selected for promotion to COL by a Standby Advisory Board (STAB) that had convened on 17 April 2001.  He was selected for promotion to COL under the criteria used by the 1997 Reserve Component (RC) Promotion Selection Board.  This promotion board had convened on 28 May 1997, recessed on 13 June 1997, and the results were approved by the President on 15 November 1997.  

7.  In connection with the processing of this case, an advisory opinion was obtained from a personnel official of the ARPERSCOM Transition and Separations Branch.  It explained that the applicant had been honorably discharged from the USAR on 9 December 1997 because he had reached mandatory removal based on the completion of 28 years of commissioned service and had not been selected for promotion.  It further stated that the applicant was selected for promotion to COL by a STAB that convened on 
17 April 2001, under the criteria used by the 1997 promotion board.  It further indicated that because the STAB that selected the applicant had convened after the date he would have reached the MRD for the higher grade, COL, ARPERSCOM did not have the authority to revoke his discharge orders and therefore to extend his MRD.  This opinion contained a recommendation that authority be granted to revoke the applicant’s discharge orders in order to allow him to either transfer to the Retired Reserve or to serve an additional six months in the higher rank and then transfer to the Retired Reserve in the higher grade.  
8.  The applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond, which he did on 23 December 2002.  In his rebuttal, the applicant states that although the position taken in the advisory opinion is an improvement over previous positions, it falls far short of recommending the length of commissioned service that was denied him.  He claims that five years of commissioned service was denied him between 1 April 1990 and 5 November 1995.  He claims his promotion to LTC lead to his removal from a Troop Program Unit based on the lack of an authorized position for his new grade.  He claims that the thrust of his initiatives have been to be allowed heretofore denied time for service to his country in an active status.  He concludes that the suggestion that he be granted six months of service before transfer to the Retired Reserve falls far short of the of the 5 ½ years of service he claims he was denied since 9 September 1969.  

9.  The Reserve Officer Personnel Management Act provides for the mandatory removal from the USAR because of age or length of service.  It states, in pertinent part, that COLs (to include LTCs selected for promotion to colonel) will be removed from active status not later than the first day of the month after the month completing 30 years of commissioned service.  LTCs (not recommended for promotion to COL) will be removed the first day of the month after the month completing 28 years of commissioned service.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he was effectively denied 5 ½ years of service since 1969, but it finds insufficient evidence to support this assertion.  However, the Board does find merit in his claim that his MRD would have been extended to 30 years had he been selected for promotion to COL in a timely fashion.  

2.  The Board originally denied the applicant’s request because the promotion list he would have been on if he had been selected in 1997, was not approved until 15 November 1997, after he had reached his MRD of 1 October 1997.  The Board finds this was a valid outcome based on his established MRD.  

3.  However, the Board also notes that the applicant was not actually discharged from the USAR until 9 December 1997, which was after the date the 1997 promotion board results were approved by the President, 15 November 1997.  Therefore, it finds that equity relief is warranted on this issue.   

4.  In the opinion of the Board, had the applicant been selected for promotion to COL by the 1997 promotion board, he would have been considered in a promotable status and his MRD would have changed to 1 October 1999, the first day of the month after the month he reached 30 years of commissioned service.

5.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by revoking the 9 December 1997 USAR discharge of the individual concerned; by showing he was promoted to COL, effective 15 November 1997; by showing he was transferred to the USAR Retired Reserve on 1 October 1999, upon reaching his MRD as a COL; and by providing him any USAR service credit due as a result.  

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

BOARD VOTE:

__JNS__  __MHM _  __ JTM  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ John N. Slone  _
		 CHAIRPERSON

INDEX

CASE ID	AR2002079946	
SUFFIX		
RECON	AR2002067465	
DATE BOARDED	2003/03/25	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/12/09	
DISCHARGE AUTHORITY		
DISCHARGE REASON	MRD	
BOARD DECISION	Grant 	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.