2. The applicant requests, in effect, correction of his military records to show that he was returned to active duty after removal from the Temporary Disability Retired List (TDRL) and that he be authorized separation pay for his many years of honorable service.
3. The applicant states, in effect, that he was initially honorably discharged on 4 January 1988 and placed on the TDRL. On 1 February 1991 he received notification from the Total Army Personnel Command (PERSCOM) that he had been found fit to return to active duty and that unless he so consented, he would be discharged from the USAR and removed from the TDRL. The notification also informed him that if he elected to return to active duty he would have to be separated no later than (NLT) 1 May 1991 because he had been twice nonselected for promotion by special selection boards. He goes on to state that he elected to return to active duty but was never returned to that status. He also contends that he does not believe he was in fact considered by special selection boards because he was a junior captain when he went on the TDRL and because he was never notified that he was being considered for promotion. He further states that notwithstanding the Departments contention of his being twice nonselected for promotion, all of his peers, at a minimum, received separation pay when they were separated as a result of being twice nonselected for promotion and yet he received nothing for his many years of dedicated service.
4. The applicants military records show that the applicant was commissioned as a USAR second lieutenant on 13 December 1978 with a concurrent call to active duty. He was promoted to the rank of captain on 1 January 1983. He was eligible for consideration for promotion to the rank of major (below the zone) in 1988.
5. On 4 January 1988, the applicant was relieved from assignment and duty because of physical disability (30 percent) incurred while on active duty. He was honorably discharged on that date and placed on the TDRL effective 5 January 1988. He had served 9 years and 22 days of total active service.
6. On 1 February 1991 the PERSCOM issued a memorandum to the applicant indicating that the Physical Disability Agency had determined that he was now physically fit for active duty, recall to active duty, and reappointment to the active list of Reserve officers, if he so consented. It further stated that unless he consented, his status as a Reserve officer would cease. However, if he consented to be recalled to active duty, he would be required to separate from active duty NLT 1 May 1991 because his records had been reviewed by special selection boards that twice nonselected him for promotion to major and was subsequently approved by the Secretary of Defense.
7. The applicants records were placed before special selection board number 7T on 2 April 1990 and special selection board number 7E on 18 July 1990 and he was not recommended/selected for promotion by both boards.
8. The applicant signed a letter of consent to be recalled to active duty on 6 March 1991. However, there is no indication that the applicant was ever recalled to active duty. His records also indicate that he was removed from the TDRL effective 22 July 1991. Additionally, there is no indication that the applicant was ever afforded the benefit of receiving separation pay.
9. Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas. It states, in pertinent part, that full separation pay is authorized to soldiers who are fully qualified for retention on active duty and denied continuation on active duty.
CONCLUSIONS:
1. The applicant was properly notified that he was found fit for duty and was eligible to return to active duty if he so consented. However, because he had been twice nonselected for promotion, he would be separated no later than 1 May 1995. Accordingly, the applicant signed an election statement on 6 March 1991 whereby he elected to return to active duty.
2. For reasons not explained in the available records, the applicant was not returned to active duty and was not removed from the TDRL until 22 July 1991
3. There is no indication in the available records to show that he ever received separation pay, a benefit soldiers normally receive when they are involuntarily separated. Accordingly, the applicants separation from the service without the benefit of separation pay was unjust.
4. Therefore, in the interest of justice, it would be appropriate to correct the applicants records to show that he was removed from the TDRL on 5 March 1991, recalled to active duty effective 6 March 1991, and honorably discharged on 1 May 1991 in the rank of captain with entitlement to full active duty credit for that period, all back pay, allowances, and separation pay, as a result of his being twice nonselected for promotion.
5. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by showing that the individual concerned was removed from the TDRL on 5 March 1991;
b. by showing that he was recalled to active duty in the rank of captain on 6 March 1991; and
c. by showing that he was honorably discharged on 1 May 1991 with entitlement to full active duty credit, all pay, allowances, and separation pay as a result of being twice nonselected for promotion.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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