MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 March 2002
         DOCKET NUMBER: AR2001064771

         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:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, Jr.		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: Retroactive promotion to the rank of captain with a date of rank (DOR) in October 1998.

APPLICANT STATES: In effect, that he is a Judge Advocate General (JAG) officer who has served 44 of his 52 months of commissioned service on active duty and has not been promoted to the rank of captain, due to misinformation by the Army Reserve Personnel Command (ARPERSCOM) and various systematic failures by the Total Army Personnel Command (PERSCOM). He further states that in February 1998, he chose to enter active duty in the Active Guard/Reserve (AGR) Program based on his detrimental reliance on assurances that AGR Position Vacancy Boards (PVB), as authorized by the Reserve Officer Personnel Management Act (ROPMA) in 1996, would soon convene. Instead, the United States Army Reserve (USAR) leadership has yet to conduct an AGR PVB, which has negatively impacted him financially and in his career as a JAG Corps (JAGC) officer. He also states that only after he entered active duty in the AGR Program was he informed that he could only compete for a Troop Program Unit (TPU) vacancy promotion. Although extremely disillusioned, and despite the embarrassment of serving as a first lieutenant for 3 years, he honored his commitment and served his tour while awaiting promotion. However, he was not considered by the promotion board and after bringing the error to the attention of PERSCOM officials, he was considered by a special selection board. He continues by stating that another major contributing factor in his decision to join the AGR Program was the fact that the pay of a captain with 12 years of service would make his salary comparable to associates in the civilian marketplace and would allow him to make payments on the more than $60,000 in educational loans he accumulated attending law school. Additionally, he contends that it is inequitable that he does not qualify for Judge Advocate Continuation Pay simply because he is a Reservist. He goes on to state that to his detriment, he continually relied on assurances from his chain of command that this obvious inequity would soon be favorably resolved. However, those members of his chain of command have recently realized and advised him that his only remaining avenue of equitable redress lies with the Board. Accordingly, the Board should direct that he be promoted or that a TPU PVB be convened to consider him for promotion under 1998 criteria. In support of his application he submits an extensive packet of supporting documents, which include three letters of support from his chain of command.

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

He initially enlisted in the Alabama Army National Guard (ALARNG) on 26 March 1987 and continued to serve until he was honorably discharged in the pay grade of E-5 on 18 June 1997, to accept a commission as a first lieutenant in the ALARNG.

He was commissioned as a USAR JAGC first lieutenant in the ALARNG on 19 June 1997 and was given a DOR of the same date.

On 2 September 1997, a notification was dispatched to the applicant’s unit announcing that a PVB was to be convened by the PERSCOM during the period of 22 to 26 June 1998. All eligible officers were given until 30 September 1997 to make application for consideration by that board. It also explained that AGR officers who applied must acknowledge that they understood that if they were selected and accepted the promotion, they would be removed from AGR duty and transferred to a TPU.

In February 1998, the applicant entered active duty in the AGR Program and his DOR was subsequently changed to 19 June 1996, by the ARPERSCOM on 28 September 1999.

On 10 May 2000, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved continuation pay for Judge Advocates. The program was approved for implementation on 27 June 2000 and applied only to the Active Army. The program did not apply to AGR and funded legal education program officers.

On 13 June 2000, an electronic mail message was dispatched from the ARPERSCOM to all AGR JAG officers. The message provided, in effect, that a problem had been identified in regards to computing the DOR of JAG first lieutenants since the implementation of ROPMA on 1 October 1996. It requested that personnel be identified and in essence be given 1 year DOR as a first lieutenant on the date of appointment if they were 3 years constructive credit at the time of commissioning. It also identified a problem in changing the DOR in the databases and encouraged personnel to ensure the changes were made.

On 4 May 2001, the applicant submitted an Inspector General (IG) Action Request for assistance regarding his failure to be considered for promotion by the November 2000 Army Promotion List (APL) Captain’s Board. The IG inquired into the applicant’s concerns and informed him on 8 June 2001 that officials at the PERSCOM acknowledged that he had been overlooked because his DOR was incorrectly listed on the database as 19 June 1997. Accordingly, he records were submitted for consideration by a Standby Advisory Board (STAB) that was scheduled to convene in August 2001. A staff member of the Board contacted officials at the ARPERSCOM on 5 March 2002, to determine if the applicant had been considered by the STAB and to ascertain his status in regards to the results of the board. Officials at the ARPERSCOM confirmed that he was considered by a STAB under the 2000 criteria; however, because the results of the board (STAB) have not yet been approved, no results can be released at this time.

The three supporting statements from his chain of command all attempt to explain that the applicant was assured, to his detriment, that he would be able to compete for promotion through a PVB. However, those consideration never materialized and although the chain of command did not intentionally mislead him, he had nonetheless been disadvantaged by following the advice he was given. All three officers (two colonels and a lieutenant colonel) contend that the applicant has suffered a great injustice and that the Board should use its extraordinary powers to right the injustice by promoting him to the rank of captain, effective 22 October 1998.

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. While the Board concedes that an administrative error occurred which caused the applicant’s DOR to be 1 year less than it should have been, the applicant has not provided sufficient evidence to convince the Board that he would have applied for the 1998 PVB or that he would have agreed to be released from active duty had he been on an AGR tour, if selected.

2. Inasmuch as the error was detected and the applicant has been considered by a STAB, the Board finds that regardless of the outcome of that board, the applicant has been afforded due process in consideration for promotion to the rank of captain. Accordingly, if he is selected by that board, he will be given the appropriate DOR commensurate with his peers. In the event that he is not selected and can show that an error or injustice occurred, he can further appeal to the ARPERSCOM and/or this Board.

3. While the Board understands the frustrations the applicant is experiencing in regards to the conduct of boards and entitlement to continuation pay, the Board notes that he is only one of a group of personnel affected by those policies and to grant him the relief he is requesting would afford him a benefit that others in the same category are not afforded.

4. Although it appears that the applicant has relied, to his detriment, on information and encouragement he received from his chain of command, he alone was responsible for making the decisions one way or another and it appears that he did so based on incorrect or undeveloped information. While unfortunate, the applicant has some responsibility in this matter to ensure that the source of his information is reliable, regardless of how meaningful the intentions of the individuals who are dispensing the information are.

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

___slp___ ___sk___ ___eja___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064771
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000/PROM
2. 314	131.0400/EFF DATE
3.
4.
5.
6.