PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 October 2002
         DOCKET NUMBER: AR2001063763


         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
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Melvin H. Meyer		Member
Mr. James E. Anerholm		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 correction of his records to show that he was promoted to the rank of lieutenant colonel (LTC) (Retired).

3. The applicant states, in effect, that while serving in the Rhode Island Army National Guard (RIARNG), he was offered a promotion to LTC. He states that he declined the promotion because his unit had no available position. Subsequently, on 4 March 1983, he received an honorable discharge and was awarded the Meritorious Service Medal. He claims that he had a phone conversation with a personnel officer after receiving the orders and learned that he should have requested a transfer to the Army Reserve (USAR) rather than a discharge. He adds that she suggested that he return the discharge and award, “which he did,” and that she would attempt to make the change. He states that he received the discharge and award back from a different officer with a brief handwritten note stating that, under applicable regulations, a change could not be made. He adds that on or about 29 August 2000, he became aware that, although it would require considerable paperwork, the change would have been possible without violating any regulations. He believes, if he had been transferred to the Retired Reserve, he would have received the previously offered promotion. In support of his application he submits his 25 March 1974, Promotion Orders, his 4 March 1983 discharge orders from the USAR, and the award orders for his Meritorious Service Medial.

4. On 25 March 1974, while attached to the RIARNG in the rank of Major, the applicant was informed that he was selected for promotion to LTC effective
31 January 1974. On the same day, he declined the promotion for a three-year period, which was approved by HQ, Departments of the Army and the Air Force, National Guard Bureau, Washington, DC.

5. On 23 June 1978, the applicant was issued a Notification of Eligibility for Retired Pay for Members of Reserve Components.

6. On 9 August 1978, the applicant requested to be separated from the RIARNG and transferred to the USAR Control Group. On 21 August 1978, his request was approved and he was honorably separated from the RIARNG. He was transferred to the USAR Control Group (Reinforcement) on 31 August 1978; thereby making his first day in the USAR 1 September 1978.

7. On 16 February 1983, he was separated from the USAR with an honorable discharge in the rank of major.

8. The applicant attained age 60 on 4 September 1993. On 29 October 1993, his application for retired pay under Title 10, United States Code, Section 1331, was approved. On 4 September 1993, the applicant was placed on the retired list.

9. Army Regulation 135-155, (Promotion of Commissioned Officers and Warrant Officers other Than General Officers), paragraph 4-5b, states that an Army Reserve officer “who is transferred to the Retired Reserve will be transferred in the Reserve grade for which selected for promotion when the transfer is the result of physical disability, completing the number of years of service or reaching the age at which retirement, transfer to the Retired Reserve, or discharge is required by law.”

10. Army Regulation 135-155, (Promotion of Commissioned Officers and Warrant Officers other Than General Officers), paragraph 4-23, states that the names of ARNG and USAR officers declining promotion to the next higher grade will be removed or retained on the promotion list for the maximum period of time authorized, unless promoted to the grade for which selected or removed under some other provision of law or regulation. Paragraph 4-22 provides that a declination is for a period of 1 year; however ARNG officers may be extended to 3 years. In addition, under paragraph 4-24 an ARNGUS officer who declines his selection for promotion to the next higher grade, will have a copy of the notification, together with two copies of his approved endorsement declining the promotion transmitted, by the State Adjutant General through the National Guard Bureau-ARP-C, Washington, DC, to Headquarters Department Army, of the Office of Promotions, St Louis, Missouri. However, paragraph 4-25, states that the names of ARNG and USAR officers requesting delay of promotion will be retained on the promotion list for the maximum period authorized, unless promoted to the grade for which selected or removed under some other provision of law or regulation. Under paragraph 4-27a (Expiration of voluntary delay period), unit officers, if not promoted on or before the end of his or her maximum authorized voluntary delay period, will either be transferred from the unit and promoted, or decline promotion and be considered to have failed selection for promotion (non-select). This regulation also provided for exceptions beyond the maximum declination period.

11. On 4 October 2002, a staff member of the Board confirmed that the applicant was on the 1973 DA Reserve Components Selection Board and has not been deleted. The policy at that time was to promote officers who had delayed promotion when they transferred to the USAR. There was not a system in place to trigger automatic promotion; therefore, if the officer did not contact the USAR Promotion Division he may not have been promoted.

CONCLUSIONS:

1. Even though the applicant declined his promotion, it appears he received approval to continue serving in the ARNG until reaching the maximum mandatory period of time and beyond as authorized by the governing rules and regulation. His entitlement to his previous promotion as a LTC remained intact. In accordance with Army Regulation 135-155, paragraph 4-25, the names of ARNG and USAR officers requesting delay of promotion will be retained on the promotion list for the maximum period authorized, unless promoted to the grade for which selected or removed under some other provision of law or regulation. Therefore, his date of rank should be 1 September 1978, which is based on his assignment to the USAR.

2. Evidence of record shows that, although eligible for promotion on
1 September 1978, he was erroneously not promoted due to an administrative error. Evidence shows this error occurred through no fault of the applicant.

3. Had he been properly promoted he would have continued to serve in the USAR Control Group in the newly promoted grade of LTC until 16 February 1983. Therefore, he is entitled to retired pay in that grade and any pay adjustments that may be due.

4. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case
be corrected by showing that the applicant was promoted to LTC effective
on 1 September 1978, with the same date of rank.

         2. That he is entitled to any pay adjustment based on his promotion to LTC that may be due.

BOARD VOTE:

__JLP___ ___MHM_ ___JEA GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

_____ ___ _______ _ ______ _ DENY APPLICATION




                  _ Jennifer L. Prater______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063763
SUFFIX
RECON
DATE BOARDED	2002.10.08
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE
DISCHARGE AUTHORITY	. . . . .
DISCHARGE REASON	RETIRMENT
BOARD DECISION	GRANT
REVIEW AUTHORITY	DASA
ISSUES 1.
2.
3.
4.
5.
6.