PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 December 2001
         DOCKET NUMBER: AR2001058429


         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Jose A. Martinez		Member
Mr. Thomas Lanyi		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.

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2. The applicant requests that his mandatory removal date (MRD) from the U.S. Army Reserve (USAR) be adjusted to 1 August 2003 instead of 1 August 2001 or in the alternative that he be “given credit (retirement points) to give [him] a good retirement year for the two years that he spent in the retired reserve.”

3. The applicant states, in effect, that, in July 1999, he was mandatorily retired as a lieutenant colonel from the U.S. Army Reserve (USAR) based on completion of 28 years of commissioned service and was placed in the Retired Reserve. He further states that he was recently promoted by a standby promotion board to colonel with a date of rank of 2 March 1998 after successful appeal of his Officer Evaluation Report (OER) covering the period of 1 September 1995 through 31 August 1996. The applicant contends that since his promotion comes with an additional two years of service, he believes his two years remaining in grade should be reinstated as of the date his promotion was finalized on 8 May 2001. He argues that under current Reserve Officer Personnel Management Act (ROPMA) guidelines, he must retire as a colonel with 30 years of service which occurs on 1 August 2001. If his request for adjustment to his MRD is approved, he may continue to serve as an active reservist until 1 August 2003. In support of his application, he submits a letter of explanation, dated 15 May 2001; a Review Board Agency letter, dated 19 April 2001, with enclosures; amended orders, dated 4 April 2001; U.S. Total Army Personnel Command memoranda, dated 5 April 2001 and 19 March 2001; and orders, dated 30 June 1999.

4. The applicant’s military records show that he was appointed as a Reserve officer in the Army National Guard on 29 July 1971. He was promoted to lieutenant colonel in the USAR effective 25 August 1992. Upon completing 28 years of commissioned service the applicant was voluntarily transferred as provided for by law from his Troop Program Unit (TPU) position to the Retired Reserve effective 28 July 1999.

5. After successful appeal of an OER, the applicant was recommended for promotion to colonel on 30 March 2000 under 1998 criteria by the Department of the Army (DA) Special Selection Board. The DA Special Selection Board (ROPMA) approved the board’s results on 7 December 2000. The DA Special Selection Board recommended that the applicant be promoted to colonel with a promotion eligibility date of 2 March 1998 and that his transfer to the Retired Reserve be voided.

6. Based on a promotion letter, dated 8 May 2001, the applicant was promoted to colonel with an effective date of promotion of 2 March 1998.

7. Title 10, United States Code, Section 14507, governs removal from the reserve active-status list for years of service. Section 14507b states in pertinent part that each reserve officer of the Army, Air Force or Marine Corps who holds the reserve grade of colonel or each officer of the Navy who holds the reserve grade of captain and who is not on the list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the reserve active status list, be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service.

8. Section 14514 of Title 10 governs discharge or retirement for years of service. This section states, in pertinent part, that each reserve officer of the Army, Navy, Air Force or Marine Corps who is an active status and who is required to be removed from an active status or from a reserve active-status list, as the case may be, under Section 14507,14508, 14704, of 14705 of this title (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law), in accordance with those sections shall: (1) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or (2) if the officer is not qualified or does not apply for such transfer, be discharged from the officer’s appointment.

9. Section 14502 of Title 10 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.

10. Subsection 14502e(2) states that if the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

CONCLUSIONS:

1. The applicant, as a lieutenant colonel with 28 years of commissioned service, was properly transferred to the Retired Reserve effective 28 July 1999 by law.

2. Upon successful appeal of an OER, the applicant was considered by and recommended for promotion by a DA Special Selection Board to colonel. He was promoted to colonel on 8 May 2001 with date of rank and effective date for pay and allowances of 2 March 1998.

3. Based on his selection to colonel, orders which transferred the applicant to the Retired Reserve effective 28 July 1999 were voided and, on that same date, he was transferred to the Individual Ready Reserve, not to a TPU position which he occupied as of his separation from an active status on 28 July 1999.

4. Based on his selection to colonel, the applicant was entitled under law to serve in an active status, including service in a TPU position, until the completion of 30 years of commissioned service.

5. Evidence of record shows that the applicant completed 30 years of commissioned service effective 28 July 2001. Therefore, under Section 14507b of Title 10, the applicant would have to be transferred to the Retired Reserve, if he was qualified and made application, effective 1 August 2001 (the first day of the next month after the applicant completed 30 years of commissioned service).

6. In order to correct the injustice created by the applicant’s erroneous non-selection to colonel, the Board finds that the applicant should receive Reserve pay and allowances in the grade of colonel/pay grade O-6 for the period 2 March 1998 (his promotion effective date to colonel) through 28 July 1999 (the date he was originally transferred to the Retired Reserve in the grade of lieutenant colonel).

7. In order to correct the injustice created by the applicant’s erroneous non-selection to colonel, the Board further finds that the applicant should receive constructive service credit in the grade of colonel/pay grade O-6 for the purposes of retirement points and Reserve pay and allowances for the period 29 July 1999 through 28 July 2001 (the date he completed 30 years of commissioned service and should have been removed from the active-status list by law).

8. In order to correct the injustice created by the applicant’s erroneous non-selection to colonel, the Board further finds that the applicant should receive constructive service credit for 48 drill periods (Inactive Duty Training (IADT)), 15 days of Annual Training (AT) and 15 membership points for the retirement year ending 28 July 2000 and that his Chronological Statement of Retirement Points should be corrected accordingly.

9. In order to correct the injustice created by the applicant’s erroneous non-selection to colonel, the Board further finds that the applicant should receive constructive service credit for 48 drill periods (Inactive Duty Training (IADT)), 15 days of Annual Training (AT) and 15 membership points for the retirement year ending 28 July 2001 and that his Chronological Statement of Retirement Points should be corrected accordingly.

10. Based on the foregoing, the applicant’s pay account should be audited to determine the difference in drill pay and allowances between lieutenant colonel/pay grade O-5 and colonel/pay grade O-6 to which he is entitled for the period 2 March 1998 through 28 July 1999 and that he be paid the difference in pay and allowances to which he is entitled, if any.

11. Based on the foregoing, the applicant should be paid all pay and allowances in the grade of colonel/pay grade O-6 to which he is entitled for the period 29 July 1999 through 28 July 2001.

12. 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 that the individual concerned served in active status in the USAR in the grade of colonel/pay grade O-6 during the period 2 March 1998 through 28 July 1999;

         b. showing the individual concerned served in an active status in the USAR in the grade of colonel/pay grade O-6 during the period 29 July 1999 through 28 July 2001;

         c. by crediting him with 78 retirement points [48 points for IADT, 15 points for AT and 15 points for membership] and a qualifying year for retirement purposes for the period 29 July 1999 through 28 July 2000; and

         d. by crediting him with 78 retirement points [48 points for IADT, 15 points for AT and 15 points for membership] and a qualifying year for retirement purposes for the period for the period 29 July 2000 through 28 July 2001.

2. That, upon completion of the correction specified in paragraph 1a above, the Defense Finance and Accounting Service audit the Reserve pay account of the individual concerned to determine the difference in pay and allowances between lieutenant colonel/pay grade O-5 and colonel/pay grade O-6 to which he is entitled for the period 2 March 1998 through 28 July 1999 and pay him the monies to which he is entitled, if any.

3. That, upon completion of the corrections in paragraph 1b through d above, the Defense Finance and Accounting Service determine the Reserve pay and allowances to which the individual concerned is entitled in the grade of colonel/pay grade O-6 for the period 29 July 1999 through period 28 July 2001 and pay him all Reserve pay and allowances due to him, if any.

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

BOARD VOTE:

___IRN__ __JAM__ ___TL___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Ms. Irene N. Wheelwright____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058429
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011218
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT PLUS
REVIEW AUTHORITY	MR SCHNEIDER
ISSUES 1.	102.0800.0000
2.	113.0100.000
3.
4.
5.
6.