MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 December 2001
         DOCKET NUMBER: AR2001058824

         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:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Ms. Regan K. Smith		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)

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APPLICANT REQUESTS: In effect, that he be promoted to the rank of major and placed on the Retired List in that rank.

APPLICANT STATES: In effect, that he was unjustly denied promotion and promotion consideration to the rank of major when he was recalled to active duty to serve in Vietnam. He goes on to state that while he was given longevity credit for pay, he was not given credit for his date of rank (DOR) for promotion purposes and therefore was not considered or selected for promotion because he did not have sufficient service in his grade, due to his being retired. He goes on to state that at the time he volunteered for recall to active duty as an aviator, he required no train-up time. He helped to form a unit that was sent to Vietnam and while serving in Vietnam he earned the Bronze Star Medal, the Air Medal, the Purple Heart and several other medals as well. He also states that he was informed at the time that he was not eligible for consideration for promotion to the rank of major because his time on the Retired List did not count towards time in grade for promotion purposes. He continues by stating that he served his country in the South Pacific during World War II, the Far East Command during the Korean Conflict and in Vietnam. He believes that he has served his country well and honorably and believes that he was cheated out of a promotion he should have had many years ago.

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

He initially enlisted in the Navy on 8 June 1943 and served until he was honorably discharged on 2 September 1949. He then enlisted in the Army on 14 November 1949 and served until he was honorably discharged on 28 December 1953. On 12 February 1953, he was commissioned as a United States Army Reserve (USAR) second lieutenant. He was ordered to active duty on 29 December 1953 and was promoted to the rank of captain on 28 April 1960. He remained on active duty as a medical service corps (MSC) aviator until 31 December 1963, when he was honorably released from active duty (REFRAD) and was transferred to the USAR Control Group (Retired), effective 1 January 1964. He had 20 years, 4 months and 5 days of service at that time.

On 13 October 1968, he was voluntarily recalled to active duty and was transferred to Fort Riley, Kansas, with an adjusted Army of the United States (AUS) DOR of 10 February 1965.

On 26 October 1968, he submitted a request for special consideration for promotion to the rank of major by a Standby Promotion Board, based on his adjusted DOR.

He remained at Fort Riley until he was transferred to Vietnam with his unit on 19 December 1968, for duty as a flight operations and air evacuation pilot.

On 7 January 1969, the applicant submitted a request to be suspended from flying duties. His request was approved on the same date and he was referred for a psychiatric evaluation. The applicant revealed that it was his and his wife’s desire that he quit flying, primarily because of the risks attendant to flying in a combat zone and because he became tense and nervous when he resumed flying in Vietnam. He was deemed to have no mental or psychiatric disorders and was cleared for any administrative actions deemed appropriate by the command.

On 28 January 1969, the applicant’s commander requested that a flight evaluation board be convened to determine if the applicant should be permanently removed from flight status. The request was approved and a board was conducted on 8 March 1969 with the board finding that the applicant made a statement in which he said that he had made a mistake by coming back into the Army on flight status, that he now had a fear of flying, and that he had two accidents in the past. After considering all of the available evidence, the board recommended that the applicant be removed from flight status for an indefinite period and that he not be authorized to wear the Aviator Badge.

On 12 May 1969, the findings and recommendations of the board were approved by the Department of the Army. He was permanently removed from the Army Aviation Program and his Army Aviator Badge was withdrawn.

On 21 April 1969, The Adjutant General (TAG) of the Army responded to the applicant’s request for special promotion consideration. The TAG informed the applicant that the last promotion selection board for major had adjourned on 29 August 1968 and that Army policy provided that officers who entered on extended active duty after adjournment of a selection board would be considered by the next scheduled board, provided their DOR places them in the zone of consideration.

The Office of The Surgeon General (OTSG) submitted a request on 11 July 1969 to the Office of the Deputy Chief of Staff for Personnel (ODCSPER) requesting that the applicant be involuntarily released from active duty and returned to the AUS Retired List. The OTSG cited as the basis for their request, that the applicant had been called to active duty for a period of 2 years, specifically for the purpose of fulfilling duties as a medical evacuation pilot with the MSC. Inasmuch as he had been removed from the Army Aviation Program, the basis for which he was ordered to active duty no longer existed.

On 12 August 1969, a Department of the Army Active Duty Board reviewed the applicant’s records and recommended that the applicant’s service agreement be revoked and that he be REFRAD as soon as possible. The findings and recommendations of the board were approved and the applicant was honorably REFRAD on 18 October 1969 and was placed back on the Retired List effective 19 October 1969. His records show that he had served 1 year and 6 days of active service during his recall and that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Air Medal, and the Bronze Star Medal. His records also show that he was awarded the Purple Heart on 6 November 1969; however, on the same day, orders were published which revoked that award. At the time of his separation, he was credited with 26 years, 4 months and 11 days of service, which accounted for his time on the Retired List as well.

Army Regulation 624-100 provides the policies and procedures governing the promotion of officers on active duty. It provides, in pertinent part, that to be considered for promotion by a selection board, an officer must be on the active duty list on the day the board adjourns. Those who enter active duty after a board adjourns will not be considered by that board, regardless of their DOR. Eligibility for promotion is based on an officer’s DOR. However, in general, in order to be eligible for promotion consideration, an officer must complete one year of continuous active duty (since the most recent placement on the active duty list) prior to the board’s convene date and for promotion to the rank of major, must have 3 years time in grade (minimum), unless the Secretary of the Army determines that more or less time in grade is necessary to meet the needs of the service.

The Department of Defense Military Pay and Allowances Entitlements Manual (also known as the DOD Pay Manual) provides, in effect, that when an individual has service on the Retired List of any uniformed service that entitles them to Retired pay and they are subsequently ordered to active duty, that service is creditable for pay purposes only.

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. 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. The evidence of record clearly shows that the applicant raised the issue of his consideration for promotion to major immediately after he was voluntarily ordered to active duty and was informed that he was not eligible at the time to be considered by a standby selection board.

3. It appears that based on the regulatory requirement for him to be on the active duty list for 1 year prior to being considered by a selection board, he would not have been eligible for consideration until the fiscal year (FY) 1970 major’s promotion selection board convened.

4. However, because the applicant was removed from flight status, he was REFRAD 6 days after having served his 1-year on the active duty list and was no longer eligible for promotion consideration.

5. Although the applicant’s time on the Retired List did not count for promotion eligibility while he was on active duty, he did receive service credit for pay purposes for that time, at the time he was placed back on the Retired List, in accordance with the applicable regulations.

6. 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

__sac___ __mdm__ __rks___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058824
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/12/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900/adv in grd
2.
3.
4.
5.
6.