MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        


         BOARD DATE: 17 January 2002
         DOCKET NUMBER: AR2001059775

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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: That he not be placed in the Retired Reserve and instead be reinstated in the Ready Reserve in order to complete 20 years of qualifying service.

APPLICANT STATES: In effect, that he should be retained in the Ready Reserve in order to complete 20 years of qualifying service. In support of his application, he submits a copy of a personal letter to the Commander, US Army Reserve Personnel Command (AR-PERSCOM), three memorandums from
AR-PERSCOM, a copy of ARPC-FL 3244-2 (Reserve Status Statement & Election of Options), dated 19 April 2001, and a copy of AR-PERSCOM Orders, C-03-108606, dated 27 March 2001.

EVIDENCE OF RECORD: The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant
on 2 January 1981. He was ordered to active duty on 12 April 1981.

He was promoted to the rank of captain/0-3 on 1 November 1984.

On 29 September 1992, the applicant was released from active duty under the provisions of Army Regulation 635-100, chapter 3, Voluntary Incentive Program-Voluntary Separation Incentive (VSI). He had a total of 11 years, 5 months, and 18 days of creditable service. He was transferred to the USAR Control Group Individual Ready Reserve (IRR).

He was promoted to the rank of major/0-4 on 1 April 1994.

The applicant was considered but not selected for promotion to lieutenant colonel by the 1999 and 2000 Reserve Components Selection Boards (RCSB’s).

Informal coordination with the staff of the Promotions and Notifications Branch, Office of Reserve Components Promotions, revealed that the applicant was considered, but was not selected, for promotion to lieutenant colonel by the
1999 and 2000 RCSB’s due to unknown reasons. Information also revealed that the applicant had completed 20 years of commissioned service and had to be retired/discharged in accordance with Title 10, United States Code, section 14506.

The applicant provided a copy of AR-PERSCOM Orders C-03-108606, dated 27 March 2001, which shows that he was released from the USAR Control Group (Reinforcement) due to non-selection for promotion with an effective date of 1 September 2001, and was assigned to the Retired Reserve.




The applicant provided a copy of a memorandum from AR-PERSCOM, dated
22 March 2001. The purpose of this memorandum was to provide further information concerning options available to the applicant as a result of his recent nonselection for promotion. The memorandum states that Title 10, US Code, section 14506 requires a major, nonselected for promotion after second consideration to lieutenant colonel, be separated no later than the first day of
the month following the month in which the officer completed 20 years of commissioned service. It also states that “Majors who already possess 20 years
commissioned service at the time of their second nonselection for promotion
will be separated not later than the first day of the seventh month following the President’s approval of the board results unless they: a) are eligible for and request transfer to the Retired Reserve. (To be eligible for transfer to the
Retired Reserve you must have attained 20 years of qualifying service for Reserve retired pay and have a 20 year letter, or be otherwise qualified for Reserve retired pay); b) have been credited with 18 or more but less than
20 years of satisfactory Federal service for retired pay purposes; c) are in receipt of VSI but ineligible for transfer to the Retired Reserve because you have not attained 20 years of qualifying service for Reserve retired pay. You must be transferred to the Standby (Inactive) Reserve to maintain eligibility to receive VSI payments.”

The applicant completed the Reserve Status Statement and Election of Options, contained on the reverse side of the memorandum, dated 22 March 2001, with a suspense dated of 21 April 2001, and requested retention to complete 20 years of qualifying service on 19 April 2001.

A copy of the applicant’s chronological Statement of Retirement Points
(Summary Points/Inquiry/Update) was provided by AR-PERSCOM to a staff member of the Board. The document indicated that the applicant had completed 15 membership points or less each year during the period 7 January 1993 to
1 September 2001.

Army Regulation 635-100 prescribes policy and procedures governing transfer and discharge of Army officer personnel from the Active Army. Paragraph 3-62
provided for the voluntary release of officers from active duty under the Early Release Program-VSI.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to lieutenant colonel an individual must have completed 50 percent of the CGSC, 7 years of time in grade (TIG) as a major, and an officer advanced course (OAC) on or before the convening date of the respective promotion board.

Title 10, U.S. Code, section 14506, states that an officer in the grade of major
who twice fails to be selected for promotion to lieutenant colonel will be separated no later than the first day of the month after the month in which the officer completes 20 years of commissioned service.

Title 10, U.S. Code, section 14513, states that a Reserve officer of the Army, who is in an active status and whose removal from an active status or from a Reserve active-status list is required by section 14506 of this title shall: 1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; 2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 3) if the officer is not transferred to an inactive status or the Retired Reserve, be discharged from the officer’s Reserve appointment.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or,
if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.

Paragraph 6-2 of Army Regulation 140-10, states, in pertinent part, that orders transferring soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer.

Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350801, subparagraph F, states: “The member must accept voluntary appointment…to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI. If the member does not continue to serve in the Ready Reserve, the VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve.” Exceptions are provided for 2-time non-select for promotion, medical disability, age or other
involuntary reasons.

Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members. The VSI was one of the


monetary benefits associated with this incentive program. The voluntary incentive program was designed to support the Army's drawdown. HQDA message 281802Z January 1992, clarified issues associated with the voluntary separation incentive program via a question and answer format. It stated, that soldiers approved for VSI will be paid in annual installments commencing on their departure date from active duty, and on each anniversary date thereafter for twice the number of years on active duty, provided the soldier continues to serve in the Ready Reserve. VSI annual payments will be discontinued if the member is separated from the Ready Reserve unless the individual becomes ineligible to continue to serve due to medical or age limitations in which case the soldier will be transferred to the Standby Reserve or the Retired Reserve.

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. The Board notes that the applicant was properly considered for promotion by the 1999 and 2000 RCSB’s. The Board also notes that the applicant was not selected for promotion and that he was subsequently removed from the Ready Reserve based on his nonselections.

2. The Board also notes that the applicant failed twice to be selected for promotion to lieutenant colonel and had completed 20 years of commissioned service instead of 20 years of qualifying service prior to 1 September 2001, and had to be retired/discharged in accordance with Title 10, U.S. Code, section 14506.

3. The Separations and Retirements Branch, AR-PERSCOM, has opined in similar cases that removal from an active status and transfer to the Retired Reserve for nonselection of promotion has no effect on continued entitlements to VSI payments.

4. 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.









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

_jlp______ _kwl____ __cjp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059775
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020117
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19920930
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338
2.
3.
4.
5.
6.